In his famous 1968 essay, ‘The Tragedy of the Commons', Garrett Hardin chose the sea as an illustrative example.

‘[T]he oceans of the world continue to suffer from the survival of the philosophy of the commons', he wrote.¹ ‘Maritime nations still respond automatically to the shibboleth of the “free­dom of the seas”.

Hardin was not wrong in identifying the threat of depletion facing the ocean. But his example was misconceived. For it relied upon, at best,⁵ an older imagin­ary of the ocean, which was even then under substantial legal reconstruction. Hardin was referring - explicitly in later work⁶ - to arguments made by the young Hugo Grotius, whose legal brief for the Dutch East India Company, published in part as Mare Liberum in the early seventeenth century, had described the ocean as unoccupiable, inexhaustible, indeed unalterable for better or worse via human activity, and as irreducible to private ownership or state sovereignty.^[729]

Grotius had argued that the ocean exceeded legal disposition: ‘no part of [it could] be accompted in the territory of any people'; it was originally, and would remain, a commons.^[730] Sovereigns could exercise certain jurisdictions at sea - they could capture and punish pirates, and regulate fishing and other activities by their own nationals. They could also police the waters on behalf of other sovereigns with their agreement.^[731] Relying upon instruments of scientific measurement, inter-sovereign treaties might even indicate precise areas of the seas in which the delegation would operate.

These ideas were challenged by Grotius's contemporaries, especially for failing to distinguish between coastal waters, which could be enclosed, and the farther removed ‘main sea'.^[733] The free sea thesis was subsequently quali­fied - Grotius himself concurring - to exclude narrow bands of water over which control could be exercised from the coast.^[734] Qualifications relating to navigation, fishing, and the laying of submarine cables also followed in the eighteenth and nineteenth centuries.^[735] But while they regulated some uses of the sea, the treaties concluded on these matters could be represented as instantiating the Grotian idea of inter-sovereign agreements binding their subjects, not a general legal disposition of rights over the sea. Perhaps, then, they could still be described as underpinned by the idea of a free sea.

But it is fair to say that in 1968, the year of Hardin's writing, the ocean could no longer be described as exceeding territorial disposition. Starting with the Truman Proclamations of 1945,¹⁴ states were claiming exclusive sovereign rights over larger areas of the ocean. These claims, and the arguments made by diplomats and lawyers in their support, not only substantially enclosed the ocean; they also altered how the ocean was understood and imagined, con­structing a legal geography that diverged from the physical. Moreover, in the increasingly reduced areas that remained commons, the freedom of the sea was itself becoming a delimited legal institution: shorthand for agreed rights and, importantly, obligations governing access and use.

This is important to emphasise. For the threat of depletion that Hardin rightly envisaged is not the result of freedom. Rather, it has been facilitated by legal regimes - already well under construction by 1968 - that govern extract­ive activity. Hardin himself would not acknowledge this, blaming in later work as he did in the earlier the corrupting notion of the freedom of the sea: ‘Now the once unlimited resources of marine fishes have become scarce and nations are coming to limit the freedom of their fishers in the

Territorial Waters (1882); and countless bilateral treaties on commerce and navigation over the seas.

¹⁴ Proclamation 2668 - Policy of the United States with respect to Coastal Fisheries in Certain Areas of the High Seas; and Proclamation 2667 - Policy of the United States with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 28 September 1945.

¹⁵ Convention on the Territorial Sea and the Contiguous Zone, Convention on the High Seas, Convention on Fishing and Conservation of the Resources of the Living Resources of the High Seas, and Convention on the Continental Shelf.

¹⁶ Including: UN Fish Stocks Agreement (1995); various regional fisheries agreements; and the Agreement relating to Part XI of the UN Convention on the Law of the Sea (1994). Negotiations are also currently underway on an agreement relating to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

* * *

While Hardin's ideas about the commons are problematic, to say the least, and have attracted much and deserved critique,^[737] in this chapter I would like to think with his assertion of the freedom of the sea, which sits at first sight at odds with my assertion of the ocean's substantial legal incorporation by the time of Hardin's writing. Hardin is not alone in suggesting that the sea still, somehow, remains outside the law, a space of freedom. Such a sense is also conveyed in, for instance, utopian projects for building human habitats on the ocean. In 2008, Silicon Valley venture capitalists, Patri Friedman and Peter Thiel, established The Seasteading Institute (TSI), with the announced aim of establishing novel ocean-floating cities that could provide hubs for societal innovation:

The world needs a place where those who wish to experiment with building new societies can go to test out their ideas. All land on Earth is already claimed, making the oceans humanity's next frontier.^[738]

Here TSI propagates the idea of the ‘offshore' as a space of complete autonomy, beyond the writ of positive law and settled traditions, so that to leave land is to shed the burden of inherited ideas and concepts in favour of entirely new social experiments. Again, this is not actually the case. TSI rapidly descended from this elevated notion of freedom in describing its first concrete project: a now-cancelled plan for building a floating structure in the territorial waters of French Polynesia, which was to enjoy not original freedom but a delegation of some powers of autonomy, in return for monetary consid- eration.^[739] Yet the prospect of freedom on the sea remains an important imaginative element of TSI's vision.

Why do such representations of the freedom of the seas persist? As I will discuss below, that they do is revealing of an enduring political economy of the law of the sea, which distributes rights and constraints in an uneven way, such that some indeed enjoy an unlimited access to the ocean's resources, where others face exclusion.

I will then turn to the further question of what accounts for these legal regimes. One candid explanation offered in legal scholarship is that inter­national law is simply epiphenomenal to the interests of powerful states. This explanation has several shortcomings: it does not interrogate which interests, and remains too crudely deterministic, obscuring both the workings of legal ideology, and the internalised lawyering techniques by which legal change is facilitated or resisted. Above all, it reduces international law solely to an emanation of underlying - but underexplored - political configurations. Against this type of explanation, I argue that the production of the particular political economy of the ocean regimes under discussion turned critically on law and legal technique, shaped by as well as reinscribing a capitalist political economy. My argument will join other voices in calling for a focus on the more subtle elements that have informed international law's contents and distributive effects: in particular, the doctrinal commitments, class locations, and social dynamics of the ‘invisible college of international lawyers' who were the architects of our international legal order.^[740] In the final section I suggest that such a focus is a necessary stepping-stone to self-reflection about the frames within which we engage on questions relating to nature, resources and the oceans today, a time of undeniable and rapid literal sea change.

11.1