FROM THE FREE SEA TO AN OCEAN OF LAW

Let me begin, then, with the argument that since 1945, the law has substantially incorporated the ocean. My point is not simply that there is now a lot more international law pertaining to the sea, although that is indubitably true.

The LOSC, together with its implementing agreements, ‘provides the framework within which most uses of the seas are located';^{^[741]} and even so is only one among many instruments that may be listed. Taking examples solely from two websites - the International Maritime Organization's list of instruments relating to shipping,^{^[742]} and New York University's Globalex entry on international fisheries law^{^[743]} - we might count thirty-one multilateral treaties concluded in the period between the Truman Proclamations and the adoption of the LOSC. For the same period, a standard textbook on the law of the sea lists fifty-one multilateral treaties speaking to various uses of the sea.^{^[744]} These numbers are probably not comprehensive even for multilateral treaties: they include only some regional instruments, and entirely exclude bilateral treaties, non-binding declarations, and memoranda of understanding. They also do not include instruments concluded before the mid-twentieth century, and the very large number of instruments adopted subsequent to the LOSC. Individually, none of these treaties enjoys universal application (the LOSC itself cannot count the United States and twenty-eight other states among its parties, although fourteen of these are signatories) but collectively they add up to a dense network of legal regulations. Moreover, they are embedded within customary international law, which is universally applicable, and part of which was codified by the LOSC. We may further take note of the array of international institutions with competence on oceans issues, the slate of regulations issued by each, and the number of maritime disputes before international courts and tribunals.

All of this adds to the conclusion that, rather than exceeding the law, the ocean is an intensely juridified space.

But that alone is not my point. More crucial is the impact of all this law on how the ocean is understood and encountered. Here, I suggest that the law has consolidated an imaginary of the sea as an assemblage of jurisdictionally discrete sites of economic activity.^{^[745]} It has accomplished this via at least three conceptual divisions: into zones within and beyond national jurisdiction; into regimes of land and water; and into regimes addressing specific living and non-living resources.

The first division shrinks what may now be regarded as the oceanic commons: not internal waters, territorial seas, contiguous zones, exclusive economic zones, archipelagic waters, or the continental shelf. In the words of Arvid Pardo, who is sometimes described as the ‘father of the new law of the sea'^{^[746]} (replacing the old father, Grotius), these zones add up to an enclosure of ‘perhaps as much as forty percent of ocean space'.^{^[747]} Some of these zones were drawn on the assertion of ‘natural' criteria they do not follow. The continental shelf, for example, was asserted on the idea that it represented a natural prolongation of coastal territory, but the legal continental shelf exceeds the geological shelf in many instances, and may encompass areas which are not in any physical sense a prolongation of coastal land, including even deep seabed. And all of these zones were drawn with reference to economic information they do not cite: thus the areas brought within national jurisdiction enclosed all known oil and gas resources, commercially exploitable minerals, and most of the world's commercial fishery resources.^{^[748]}

The second division might appear at first sight to have its basis in the idiosyncrasy of lawyers, who insisted, as though it were a matter of great discovery, on ‘the distinction, obvious to the layman, between land on the one hand and water on the other hand'.^{^[749]} Thus, in justifying shelf claims in the years after the Truman Proclamations, legal commentators advanced arguments such as that an ‘infinitely thin' membrane divided the subsoil of the seabed and the water column, and permitted the removal of resources which were then wholly those of the bed, not of the sea.^{^[750]} However, such claims emerged not from specious geology but economic logic: a separation of the bed and water permitted occupation of the former without conceding existing rights (‘freedoms') of navigation and fisheries in the latter.^{^[751]}

The second division also provided fresh impetus for the third: if land and water were indeed to be treated separately, some classification of the contents of the ocean as falling within one or the other had to be made. The LOSC consolidates the following allocations: for areas within national jurisdiction, petroleum and minerals are placed under the regime of the continental shelf, as are living organisms legally qualified as ‘sedentary' - including crustaceans, which swim.^{^[752]} The rest are under the water regimes of the territorial sea and the exclusive economic zone.

For areas beyond national jurisdiction, all living organisms are placed under the regime of the high seas - including, e.g., rock- embedded microbial communities^{^[753]} - administered via a patchwork of regional fisheries regimes. The thin membranes that fragment the interconnected ecosystems of the ocean are legal and conceptual, not physical.

Grotius had accepted a technologically enabled striation, based on the reach of arms from the coast, which became the three-mile rule; The twentieth century ‘new' law of the sea was also of course catalysed by technological developments. However, one of its paradoxical characteristics is that ultimately its key jurisdictional zones were specified on a mathematical basis, rather than strictly by reference to physical features or the reach of particular technologies for exploitation. If we read the Grotian conception as one rejecting that mathematical striations could generate legal lines delimiting the ocean,^{^[754]} the new law of the sea is replete with such lines. The question is how these lines alter the freedom of the sea, and what to make of Hardin's suggestion that they do not. In the two following sections, my argument will be that the new law of the sea performs a paradoxical function: it constricts freedom, whether understood as the pure absence of legal restrictions or as liberty from ‘dependence on the goodwill of others'^{^[755]} for many, but enables a privileged few to use the sea in a relatively unconstrained way. The few who enjoy the benefits are, in a sense, the same few who also enjoyed the benefits of the old law of the sea: transnational corporations and imperial (‘developed') states. As I will show, their rights to the sea were recouped from efforts to build an alternative legal order of the oceans that fostered substantive equality in the use and distribution of ocean resources. In speaking of the ‘shibboleth of the “freedom of the seas”', Hardin stumbles upon this political economy of the law of the sea, although his critique was almost certainly inadvertent.

11.2

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Source: Brett Annabel, Donaldson Megan. History, Politics, Law: Thinking through the International Cambridge University Press,2021. — 450 p.. 2021

FROM THE FREE SEA TO AN OCEAN OF LAW

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