Global constitutionalism in the early modern period: the role of empires, treaties and natural law

This chapter offers a critique of the fetishism of treaties in twenty-first century international law and international relations, particularly the lazy and mistaken assumption that treaties are ironclad guarantees for the rights of indigenous peoples. It explores the relationship between European expansion overseas, treaty-making and natural law in the early modern period, focusing on the Dutch jurist Hugo Grotius (1583-1645). The man hailed in the twentieth century as ‘father of international law’ was known in his own time for his steadfast support of the Dutch East India Company or VOC (Verenigde Oostindische Compagnie). Grotius’ understanding of natural law cannot be separated from his justification of Dutch empire-building in the East Indies. There was nothing equal about the VOC’s treaty relationship with the inhabitants of the Spice Islands, for example. Grotius knew this. Indeed, he vigorously defended these unequal treaties in De Jure Praedae, written in 1604-1608, and, of course, in De Jure Belli ac Pacis (On the Law of War and Peace), first published in 1625. The VOC and the native inhabitants of the Spice Islands were bound together in a protection/tribute exchange. Crucially, it was up to the VOC to monitor indigenous performance of the treaties. If it deemed the islanders deficient in any way, it could punish them as transgressors of the natural law, waging a ‘just war’ against them. By these means, the VOC became, first, co-ruler in the Spice Islands, and, subsequently, a full-fledged sovereign. The history of treaty-making, then, is closely connected with that of Western imperialism and colonialism. It is no panacea for the protection of indigenous rights.