Jasper Bovenberg, writing for the Duke Law and Technology Review in his 2006 article Mining the Common Heritage of our DNA: Lessons Learned from Grotius and Pardo, provides a nice summary of the Dutch legal scholar Grotius’ arguments about the freedom of the high seas. We’ve all heard how this fellow Grotius was an early proponent of the freedom of the seas. The 2015 U.S. law recognizing the rights of space miners to extract resources from outer space follows in his footsteps. He got a lot right.
A lot of the principles he articulates can apply to space, but one, at least, might not. His logic became relevant to space law most recently because Grotius’ reasoning supports the U.S. 2015 law recognizing private rights in “extracted resources,” that is, in water or minerals a private entity might mine from an asteroid or other celestial body. It also has implications for human settlement, and we’ll likely have to recognize that his logic with regard to air supplies would not survive the harsh realities of outer space.
I’ve long heard of him, but I didn’t know much about him. The tale is interesting.
Background. As Bovenburg explains it, the Dutch East India Company (VOC) seized a rich Portuguese galleon in the straits of Malacca in 1603. The VOC was trying to trade with the East Indies, but Spain and Portugal had claimed the right to exclude all foreigners from navigating or entering the Pacific and Indian Oceans. To defend its claim to its capture as an act of war, the Dutch company hired a lawyer, Hugo Grotius, who was all of 21 years old, and tasked him with defending the freedom of the seas across the world. Relying on natural law and a lot of history, including “Spanish jurists, theologocians, and Roman law precedents,” Grotius accepted the task and has been cited for centuries since.
As a matter of first principles he identified the “unimpeachable axiom” that “Every nation is free to travel to every other nation, and to trade with it.” Not only could he point to numerous wars fought to support this axiom, but he was able to see the logic of it. As Bovenberg puts it, Grotius:
pointed out that the necessities of life had been unevenly spread around the globe and that some nations had developed skills that other nations lacked. Grotius thus took the “interdependence” between the nations of the world as the main legal underpinning of free trade. He also took the argument to its logical extension; mutual interdependence required free trade and free trade in turn required free access to the element over which connecting roads were running, in casu the High Seas.
Types of Property: Grotius identified three types of property relevant to the sea as derived from Roman law. The sea could be the property of no one (res nullius), a common possession (res communis), or public property (res publicae). Res nullius property could be appropriated and become part of an individual’s holdings. Res communis property included things belonging to everyone, and includes the air, floating water, the sea, and the shore. “No one,” said Grotius, “could own these things, but they could be used and enjoyed by everyone.” Res publicae consisted of rivers and ports.
Then Grotius traced the evolution of property rights. If, at the beginning of time, everything belonged to everyone, this state of affairs had to change with people using consumables, such as food and drink. By their very nature, they could not be used without a certain kind of ownership being recognized. “They must belong exclusively to a given individual in a way that precludes their use by another person.” From there, it was not long before immovable items such as fields and buildings were also subject to ownership.
While their use did not result in their consumption, they were necessary for the production and consumption of consumables. Ultimately, they too were in such scarce supply that they could not ‘satisfy the use of everybody indiscriminately.’ Things that in former times had been held in common could now be deemed the property of individuals once they had occupied them.
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Typically, it was sufficient if, after taking physical possession, the individual maintained the intention to possess. In the event, however, of things that resisted seizure, like wild animals, the occupation had to be uninterrupted.Consequently, “possession of movables implie[d] seizure,” whereas possession of immovables required the determination of boundaries. This transformation from common to private property was followed by the development of public property. Public property exhibited characteristics of both common and private property. While public property was technically owned by a particular state, it was usually free for all citizens of the state to use. Interestingly, both private and public property arose in the same way and did not mutually exclude each other. Grotius observed, for example, that the land of Athens belonged to the Athenians but that the same land was split among individual owners.
Grotius came to a logical conclusion from these observations about whether something was able to be occupied or possessed. “First, that which cannot be occupied, or which never has been occupied, cannot be the property of anyone, because all property has arisen from occupation.” He also noted that “all that which has been so constituted by nature that although serving some one person it still suffices for the common use of all other persons, is today and ought in perpetuity to remain in the same condition as when it was first created by nature.” Those objects that by their very nature are open to the use of all include the water, the sun, the air and the waves. Because they were not susceptible to occupation, their common use was destined for all.
Not everything in the sea precluded private possession, however. As Grotius observed, fish are susceptible to possession. Agreeing on this rule creates certainty and is equitable because it rewards diligent labor and industry. (According to Grotius, an exception may arise out of necessity. If everyone is starving on a ship lost at sea, individuals’ stores of food may become common property).
Grotius and outer space. When the United States in 2015–and other countries later–recognized that a private entity, whether an individual or a corporation, owned what it mined from outer space, Grotius’ logic provided a foundation. The U.S., in essence, recognized that possession of a resource mined from the Moon, for example, excluded others from possessing the same item. Likewise, recognizing possession of extracted resources from space rewards diligent labor and industry. For something so inaccessible, expensive, and technically difficult as outer space, it makes good sense to reward those who would spend so many years of their lives, and so much of their money, in seeking a way to get there and put the resources to good use.
On the other hand, although we may be able to continue to employ Grotius’ principles as we make our way into space, we may not be able to agree with all his conclusions. Take air, for example. Here on Earth, one person’s moment of possession of air in his lungs does not preclude another person’s ability to access or possess air for her needs. They may even breathe the same molecules from time to time. On Earth, air is, by Grotius reasoning, used and possessed by everyone, and he calls it res communis.
I’m not sure we would reach the same conclusion Grotius did for air in space. Air does not occur naturally in space, and certainly not in the abundance we find on Earth. To get to space, air must be in a form that it can be possessed, contained, controlled, doled out, withheld, sold, and a host of other verbs I haven’t thought of. One thing we know: it will be scarce. If I spend a lot of money hiring educated people, manufacturing parts, paying taxes, satisfying regulations, pressurizing oxygen, and bringing air breathable by humans to the Moon, I’m sure as heck not going to agree it belongs to everyone. I’ll be pretty definite it belongs to me, and that I should be paid for it. If Grotius had read Tom Godwin’s The Cold Equations or watched Stowaway, the movie that didn’t acknowledge its debt to The Cold Equations anywhere I saw, I’m thinking he’d agree that air might be susceptible of being private property in space. In The Cold Equations, a pilot on an emergency mission to a doomed planet, with only enough fuel to reach it, finds a stowaway aboard. If the pilot spaces the girl, the ship will barely make it to the planet. If he does not, the ship will crash and both of them as well as the colony will die. This was about fuel, but could apply equally to air. (Read your contracts carefully, future space workers!) The “stowaway” in the Netflix movie was going to keep the others from having enough air to survive the trip. In space, air is a consumable and arguably subject to possession. Its presence and provision should perhaps be rewarded by paying for it to ensure a continuous supply.
By the way, according to this site, it took Grotius two years to write 500 pages justifying the Dutch capture of the Portuguese ship. What he first published, however, was the essay on the freedom of the seas–which was a lot shorter.