Grotius begins his argument with the observation that the first law of nature is that, by nature, there is nothing proper, that is to say, there is no ownership¹. The consequence of this view is that, by nature, all things must be common to all of humanity. Therefore, the rise of property can only be by convention, by agreement between individuals and between nations. Whether ownership is public (belonging to a specific country) or private (belonging to an individual or group of individuals), that ownership exists at all is by convention.

If ownership is entirely a social convention as Grotius maintains, the question arises of the criteria by which society recognizes ownership. In Grotius' view, humanity has come to agree on certain criteria for deciding ownership based on utility. The first of these criteria is the notion of limited use. Only those objects capable of limited use can be owned as there is no need for that which can be used in an unlimited fashion to be owned. Grotius offers the example of food and drink; once these items are consumed by a particular individual no other individual is able to derive use from them ². In a similar fashion, once a field has been plowed, it cannot be used for pasture without destroying the labor of the plowman. Grotius holds that the first particular individual to make an object proper, to make use of it in an exclusive fashion, ought to have their labor rewarded. This reward is recognition of property rights by others.

To be used in a limited fashion, however, an object needs to be obtainable. A moveable item needs to be able to be laid hold of; an immobile item needs to occupied. Without being laid hold of or being occupied, an object cannot be made proper in Grotius' view because an object which is not laid hold of or physically occupied is capable of being used by others and, consequently, there is no compelling reason for the many to recognize ownership of a particular individual. If property rights arise solely by convention, then without the recognition of the many, the individual can make no claim to ownership of an object that can be made proper.

Occupation, though, requires clarification in Grotius' mind. He holds that in order to by able to be occupied, an immobile object must be capable of being bounded and guarded. Without being bounded, an object cannot be made proper as it has no limits. It is only when limits are created that make it makes sense to say that an immobile object can belong to a particular individual or group of individuals. Without limits to define an immobile object, one cannot even speak sensibly of that object, much less lay claim to owning that object. One must also be able to guard an object to make the claim of ownership. If one cannot defend an immobile object, one cannot be said to have ownership.

These criteria of limited use, being either laid hold of or occupied, being bounded, and being guarded cannot be applied to the sea according to Grotius. He argues that the seas are so vast that they are of unlimited use. That one person or company or country uses the seas to navigate in no way deprives any other person, company or country from using the seas to navigate. Grotius also argues that the seas cannot be bounded or guarded and, therefore, cannot be occupied. Neither, he observes, can one lay hold of the sea and put it in one's pocket. Because one cannot as a matter of practicality derive limited use from the seas, he concludes, that nature commands that the seas be free.

Grotius application of the criteria for proper use to the sea, however, is based on the technology of the sixteenth and seventeenth century. The technology of the twentieth and twenty-first centuries has vastly changed the answer to the questions of whether or not the sea can be of limited use and whether or not the sea can be occupied. The construction of off shore platforms for the drilling of oil offer a practical and realistic example of the occupation of portions of the sea. While the waters of the sea itself might not be occupied by such constructs, the three dimensional space therein certainly can be occupied. The construction of further boundaries by which the waters of the sea themselves can be limited is only a matter of technological progress and the political will for a country with the requisite natural resources. The inflatable sea walls designed to keep the sea water out of Venice to keep the city from being entirely submerged could almost certainly be adapted to confine the waters of the sea for occupation. Humanity is now capable of using the sea in a limited fashion which was not the case in Grotius' era. Which means that Grotius' argument for keeping the sea free now, at least in certain cases, is a powerful argument for the proper use of the sea.

On the other hand, Grotius would most likely observe that it is the agreement of all peoples that confers ownership in the final analysis. Despite the ability to occupy the sea, most countries have a vested interest in keeping the seas open to facilitate trade. While travel by air has lessened the need for travel by sea, it is still sea travel that dominates trade and commerce due to the relative expensiveness of moving goods by air versus moving those same goods by sea. While the physical barriers to bounding and guarding the sea for occupation have been removed by the progress of technology, the nations of the world are a long way off from reaching a consensus that allows for property rights out on the open seas.³

In fact, the consensus of modern nations seems to point toward keeping the seas and other resources as common rather than proper. The Antarctic Treaty of 1959 by which the major nations of the world renounced proper use of Antarctica in favor of keeping it as a common resource for the benefit of all mankind demonstrates that there are cases where occupation and limited use are possible (and even feasible), but where the nations reach a consensus to keep the object in question as common to all. The (as of yet unratified) 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies is another example of a drive to concede proper rights, though feasible to acquire, in favor of common use. The obvious conclusion, then, is that while the possibility of occupation and limited use are necessary for proper use to occur, they do not require that proper use follows. The same universal consent by which property rights develop can also dictate that an area capable of limited use be kept common for the greater good of humanity.

This discussion of consent leads to another consideration: the exponential growth of the world's human population since the time of Grotius which puts new pressures on natural resources that were once viewed as inexhaustible. Pollution of both air and sea water, as one example, can now have direct and catastrophic consequences for nations other than the one doing the polluting. The sewage from a city of teaming millions, if pumped into the oceans, has the potential to damage the aquatic life that the citizens of other countries depend on. Likewise, unfiltered industrial pollution released into the air over one country can drift and cause great damage to other countries as in the case of acid rain in Canada caused by industrial pollution in the United States. It is foreseeable, then, that the consensus on proper use may eventually evolve to restrict certain types of uses.⁴

This shift from perceiving the oceans and the air as being unlimited and inexhaustible to the view of perceiving them as finite and scarce is readily accounted for by the Grotian view due to the way that property rights rests on consent. What is paramount in Grotius' view is that all give consent as a matter of practical consequence. While disputes might arise concerning who owns particular objects, his view gives a powerful and flexible analysis of the criteria by which ownership can be decided. The ability of this view to change its conclusions on the basis of not only what is feasible, but also on the basis of the consensus of the nations leads to an enduring theory that is adaptable to virtually any situation. That Grotian thinking can accommodate such enormous changes in humanity's technological capabilities is a testament to its power as an abstraction of the idea of property.

¹

Grotius, H. The Free Sea. Translated by Hakluyt, R. Indianapolis: The Liberty Fund, 2004. p. 21.

²

Ibid., p. 22.

³

Territorial waters are a notable exception. Even Grotius, however, eventually conceded that territorial waters could be considered to be proper.

⁴

One could argue that, in some cases, such a move has already occurred. Whether there is any current set of circumstances that reflects this shift is outside the scope of this paper.