11.4 THE MAKING OF THIS LAW OF THE SEA

Thus far, I have tried to uncover how the ‘new' law of the sea allocates rights and constraints. But I have not squarely addressed the reasons why we have this law. Going by some theories, there may not be much to address; the answers are evident.

By Goldsmith and Posner's logic, then, there is usually very little to explain about why we have the international law we have. Any rule or treaty under study will predictably reflect the underlying configuration of state interests. It is only specific details (why a 200-mile exclusive economic zone rather than 175 or 225) or anomalies (why a regime departs from a rational choice predic­tion) that we might need to explain by a thicker analysis of the conjuncture in which the rule arose. Otherwise, broadly sketched context is enough. And so, for example, says Posner vis-à-vis the new law of the sea:

The...

Now, it must be said that Goldsmith and Posner's book is a refreshingly candid account of international law's function and possibilities. The evaluation they offer - ‘international law does not shift power or wealth from powerful to weak states'^[790] - goes against the grain of valorising narratives, and appears to correspond with the analysis of the law of the sea in this chapter.^[791] But for all its frankness, the critique stops a few steps short. There are several questions that Goldsmith and Posner do not assess in a rigorous way. Let us consider these.

First, what are these interests that powerful states seek to pursue? For all that they are able to pinpoint these interests almost by guess in their examples, Goldsmith and Posner prefer to ‘avoid strong assumptions about the content of state interests and assume that they can vary by context',^[792] though they do note that in every state, ‘elites, corporations, the military, relatives of dictators - have disproportionate influence'.^[793] Why not, then, carry this further, to note the convergence between these groups within most states to pinpoint the class interests that are consolidated into the structures and institutions of the state, and espoused as state interests.

Second, the explanation of international law as epiphenomenal to state interests opens the way to a reductive account both of ‘mainstream' inter­national lawyers, that is, the majority of the (Western and Western-educated) academics and state officials who engage in the daily business of drafting, interpreting, systematising and refining the law and producing legal argu­ments to explain and evaluate state conduct; and of the processes of legal change.

For those involved, outside explicitly political negotiations, asserting or changing the law was not a simple matter of dressing up state interest in legal terms, but of the methodical explication of state practice or treaty text; and contested and attritional operations of squeezing meaning out of (or into) viscous legal concepts in support of outcomes perceived as desirable. The more substan­tive changes that were advocated - such as enclosure of the continental shelf - were justified on arguments both of collective interest, as well as what was pragmatic given reality, including the reality of vested legal rights and economic practices. Where changes were derided, this too was on the same terms.

To focus on just one set of lawyers (British), in one period (the 1950s), advocacy for or against proposed changes was at least partly also in terms of what that meant for international law itself. Thus, arguments for altering the principle of the freedom of the sea to enable enclosure of the continental shelf were made on the basis that it was necessary to demonstrate the law's flexibility towards develop­ments that were both desirable (catering to the world's needs for petroleum) and inevitable. Lauterpacht, for example, argued that it was ‘unlikely that any purely doctrinal opposition of lawyers - even if otherwise well founded - would be able to stem the hitherto uniform progress of claims and developments, which are not intrinsically unreasonable, in the matter of the “continental shelf”.^[797] If inter­national lawyers adopted a flexible stance, they might succeed in ‘containing [shelf-related claims and] developments within the channels of moderation and order'.^[798] Reviewing a decade of international legal scholarship and practice following the Truman Proclamations, D.H.N.

Equally instructive is the episode, two decades later, concerning efforts by the UN Institute for Training and Research to prepare a list of ‘existing and evolving principles and norms of international law relating to the new international economic order'. For lawyers at the UK's Foreign and Commonwealth Office, the concern was ‘shoddy' methodology, such that

anything and everything which has even been mentioned as forming part of a NIEO is ipso facto fit for inclusion on the list... without the slightest attempt to undertake the hard grind of analysing how far any particular item can be actually said to represent a rule of international law, or in which terms, subject to what qualifications, etc. etc.⁸

Of course, other concerns also operated: for the FCO's economic relations department it was more bluntly that they opposed the establishment of the NIEO. But there is something interesting about the terms of the legal response

here. It may be possible to dismiss this as simply dressing up state interest (in countering the NIEO) as legal rectitude (concerns about shoddy method). That would be even more compelling if one considers the new international economic law that did emerge out of NIEO contestations: a transnational law of contracts that developed states proposed via identification of general prin­ciples of law; while efforts to reform colonial property arrangements by developing states via General Assembly resolutions were discredited as legally untenable.^[801] Or, to go back to the earlier example, we might see in the calls for flexibility on continental shelf claims again the dressing-up of certain state interests in more appealing terms.

Analyses of international law's epiphenomenality glide over international law's political economy as well as its constitutive power. It is, I think, more valuable to think of the elements of contingency and false contingency that give shape to the law;^[802] and with respect to the latter, to pay closer attention to how structural necessity gets reified into doctrinal necessity such that main­stream international lawyers - insisting upon the separation of law from ‘politics' - come to regard particular interests as objective ones. There is particular value to examining the processes of legal drafting, interpretation and systematisation; the sites where struggles for law play out; where actions are qualified as illegal or juris-generative; where interventions become classi­fied as desirable or disruptive - all by international lawyers who are taught to see themselves as acting as agents of the international community, motivated by ‘la conscience juridique' ^[803] Most of all, these processes reveal the enduring power of liberal capitalist ideology, which underpins the social and intellec­tual worlds of the international lawyers involved, and which re-inscribes the dynamics of inequality described in this chapter.

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The arguments that I have made in this chapter will I hope suggest both a descriptive and an ironic use of the title phrase. I have sought to show that there has been a sea change in how we imagine the ocean today: divided by zone, medium, and type of resource, both at the shallow ends and in the deep, and entirely legally incorporated. This was not the ocean we had prior to the mid­twentieth-century intensification of ocean law-making. On the other hand, there has been no sea change in the type of interests that both the old law and the new privileged. The new law of the sea also echoes the old in continuing to group some uses of the (common areas of the) sea, including fishing, under the label of ‘freedom'. This freedom has a different meaning: it is not the natural and prior freedom asserted by Grotius, but a delimited legal institution, in which rights to access and use the sea are specifically and unevenly distributed, subject to obligations, by particular - and, effectively, generally applicable - resource management regimes. Yet both types of freedom generate similar effects in terms of facilitating the economic activity of a fortunate few. For these actors, the substantive capacity to sail and fish in the seas was supported by a formal right under the old law; the new law meanwhile accords them priority so as to leave their actions relatively unconstrained. But the lack of constraint under the new law is not simply a lingering legacy of the old law - or the old ‘shibboleth', as Hardin asserted. It has emerged via moments of contestation over the ordering of the ocean, and by the retrenchment of more radical proposals for redistributing the benefits of ocean exploitation.

Recognising this is important in view of a third sense in which we might understand ‘sea change' - literally. The sea is changing, in worrying ways. It is overheating, acidifying, overrun with plastic, depleted of fish, and rising. Major summits have been organised to publicise these issues, and law-making efforts are even currently underway to address them. What fails to be men­tioned, however, is that all of this takes place within a paradigm in which a further capitalisation of the ‘blue economy' remains the goal, and in which the law is seen as purely a solution to the old shibboleths that produced the tragedy of this great commons. This obviously limits what can and must be achieved: bold new frameworks that privilege ecological protection and redis­tribution. I have argued in this chapter that we notice that the law itself has consolidated an extractive imaginary of the ocean; and that the forces that perpetuate this imaginary are not just the crude self-interest of states, but a more deep-rooted political economy, which also shapes modes of thought and practice among lawyers as to what it means to be acting for the common benefit.