Delenda est haec Carthago. The Ostend Company as a Problem of European Great Power Politics (1722-1727)

Abstract

This contribution explores the legal debate between the Dutch Republic and Emperor Charles vi of the Holy Roman Empire on the right of the inhabitants of the Austrian Netherlands to participate in trade on the high seas. Traditionally, historiography sees the formal existence of the Ostend Company (1722-1731) as a question of power politics. This is challenged from a contextual legal history-approach. First, big names as Jean du Mont de Carels-kroon or Jean Barbeyrac were mobilised in the bilateral quarrel. The arguments they invoked were drawn from the ius commune as well as an analysis of formal political history. Contrary to what is often assumed, the Dutch East India Company (voc)’ s point of view according to which treaties could limit the peremptory natural right to navigate on the high seas (mare liberum, pactis clausum) could not prevent the Ostend Company’s trading activities. The treaties of alliance and commerce concluded in Vienna on 30 April/ 1 June 1725 between Charles vi and Philip v of Spain (the “ Ripperda’ treaties) opened the Spanish colonies again, winding back the limitations created by the Treaty of Munster in 1648 (cujus est ligare, ejus est solvere). Second, this bilateral quarrel was subject to the legal principles governing the multilateral system of Europe, as established by the peace treaties of Utrecht, Rastatt and Baden (1713-1714). A legal reading of Franco-British diplomatic practice after 1713 learns that the Ripperda treaties were seen as containing the germs of a new Universal Monarchy and thus constituted a threat to the European balance. Not mere politics of interest or a variation on Hugo Grotius’ mare liberum, but hierarchy between treaty norms deprived the commercial treaty allowing the Ostend Trade of its legitimacy.