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Power Sharing in the Law of the Sea

Published online by Cambridge University Press:  27 February 2017

Philip Allott
Philip Allott*
Affiliation:
Trinity College, Cambridge
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Extract

The United Nations Convention on the Law of the Sea is a fact. It exists. Whether or not it becomes a fully operational treaty-signed, ratified, in force, widely supported, generally followed-it is and will be the cause of significant effects. Its very existence modifies political, economic, and legal relationships in countless ways whose direction and intensity we can predict only in a most speculative way. What we can say in advance is that the effect of the Convention— its own fate as a treaty and its impact on international relations— will substantially depend on how it is perceived.

Type
Research Article
Information
American Journal of International Law , Volume 77 , Issue 1 , January 1983 , pp. 1 - 30
Copyright
Copyright © American Society of International Law 1983

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References

1 Now the reason why man is more of a political animal than bees or any other gregarious animals is evident. Nature, as we often say, makes nothing in vain, and man is the only animal whom she has endowed with the gift of speech. And whereas mere sound is but an indication of pleasure or pain, . . . the power of speech is intended to set forth the expedient and inexpedient, and likewise the just and the unjust. And it is a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the association of living beings who have this sense makes a family and a state.

Aristotle, Politics, bk. I, at 10–12 (tr. Jowett).

2 There is nothing chimerical in the hope that general laws, sufficient to enable us to answer these various questions [prediction and control of social events] for any country or time with the individual circumstances of which we are well acquainted, do really admit of being ascertained; and moreover, that the other branches of human knowledge, which this undertaking presupposes, are so far advanced that the time is ripe for its commencement. Such is the object of the Social Science.

2 Mill, J. S., A System of Logic 536 (1843)Google Scholar. See also Wilson, E. O., Sociobiology: The New Synthesis (1975), and On Human Nature (1978)Google Scholar. Wilson has said elsewhere:

The question that science is now in a position to approach is the very origin and meaning of human values, from which all ethical pronouncements and much of political practice flow. Philosophers themselves have not explored the problem; traditional ethical philosophy begins with premises that are examined with reference to their consequences but not their origins.

Academic Vigilance and the Political Significance of Sociobiology, BioScience, March 1976, at 183, 189.

3 Kant and Hegel both considered that the process of thought is not merely a product of the world outside the mind. Either thought creates the world as we know it (Kant) or thought and the world are not essentially different (Hegel). Cf. the correction by Leibniz of the empiricist axiom: “nothing in the intellect which was not before in the senses; nothing but the intellect itself.” Von Leibniz, G. W. New Essays on the Understanding, bk. II, §2 (1704)Google Scholar (trans, and emphasis added by present author).

4 See especially Marx, K. & Engels, F., The German Ideology (English tr., Moscow 1964)Google Scholar. The leading modern work is Mannheim, K., Ideology and Utopia (1936)Google Scholar. See also Oakeshott, M., Rationalism in Politics and Other Essays (1962)Google Scholar; Plamenatz, J., Ideology (1971)Google Scholar; Frankfurt, Institute for Social Research, Aspects of Sociology, esp. ch. XII (tr. Viertel 1973)Google Scholar. On the Marxian concept in neo-Marxian contexts, see Sumner, C., Reading Ideologies (1979)Google Scholar.

5 “Interpretation is the work of thought which consists in deciphering the hidden meaning in the apparent meaning, in unfolding the levels of meaning implied in the literal meaning.” Ricoeur, P., The Conflict of Interpretations—Essays in Hermeneutics 13 (1974)Google Scholar. See also R. A., Makkreel, Dilthey, Philosopher of the Human Studies (1975)Google Scholar; Bauman, Z., Hermeneutics and Social Science—Approaches To Understanding (1978)Google Scholar.

6 Modern linguistics, pioneered by Saussure, has sought to move one focus of philosophical attention from the problem of truth (logic and epistemology) to the problem of the functioning and function of language itself (including all kinds of signs and symbols) as a phenomenon in its own right. Language is seen not merely as a neutral vehicle for conveying ideas but as a substantive human activity in itself, itself the cause of psychological and social effects. Structuralism, especially as developed by Lévi-Strauss, has carried further a similar orientation to cover the whole field traditionally claimed by anthropology. For the structuralist, all human and social phenomena (including rule making and rule following) are interrelated structures of meaning to those who participate in them and they may be studied as such by those who observe them systematically.

7 See, e.g., Barthes, R., Soap-powders and detergents, in Mythologies (English ed. 1972)Google Scholar; Jakobson, , Linguistics and poetics, in Style in Language (Sebeok ed. 1960)Google Scholar; Lévi-Strauss, C., Mythologiques I: Le Cru et le cuit (1964)Google Scholar, and Totemism (tr. Poole 1963); Sartre, J.-P., Critique de la Raison Dialectique, ch. II, “Du groupe à l’histoire” (the French Revolution) (1960)Google Scholar.

8 See Jenks, , Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organisations, in Cambridge Essays in International Law: Essays in Honour of Lord McNair 48 (1965)Google Scholar; Casson, , Le Consensus dans la pratique des Nations Units, 1974 Annuaire Français de Droit International 456 CrossRefGoogle Scholar; Sohn, , Voting Procedures in United Nations Conferences for the Codification of International Law, 69 AJIL 310, 333 (1975)Google Scholar; Vignes, , Will the Third Conference on the Law of the Sea Work According to the Consensus Rule? , id. at 119 Google Scholar; Buzan, , Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea, 75 id. at 324 (1981)Google Scholar.

9 Smith, A., an Inquiry into the Nature and Causes of the Wealth of Nations, bk. IV, ch. II, at 456 (Glasgow 1976) (1776)Google Scholar.

10 Rousseau, J.-J., The Social Contract, bk. IV, ch. VI, at 192 (tr. Cole 1913, rev. 1973) (1762)Google Scholar.

11 See “Interest Groups,” in 7 International Encyclopedia of the Social Sciences 486, and “Political Group Analysis,” in 12 id. at 241 (Sills ed. 1968); Truman, D., The Governmental Process: Political Interests and Public Opinion (1951)Google Scholar; Loveday, P. & Campbell, I., Groups in Theory and Practice (1962)Google Scholar.

12 In the sense of the term especially associated with 1 Popper, K., The Open Society and its Enemies 173 (5th ed. 1966)Google Scholar.

13 Texts from the Law of the Sea Convention are taken from the Draft Convention, UN Doc. A/CONF.62/L.78, of Aug. 28, 1981.

14 Right, privilege, power, immunity; no-right, duty, disability, liability. Cf. Kocourek’s revised list: claim, immunity, privilege, power; duty, disability, inability, liability. Hohfeld, , Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913)CrossRefGoogle Scholar; Kocourek, A., Jural Relations (1927)Google Scholar. For a review of post-Hohfeldian developments, see Pound, , Fifty Years of Jurisprudence, 50 Harv. L.R. 557, 571 ff. (1937)Google Scholar.

15 See Adede, , Law of the Sea: The Scope of Third-Party, Compulsory Procedures for the Settlement of Disputes, 71 AJIL 305 (1977)Google Scholar; Adede, , Law of the Sea—The Integration of the System of Settlement of Disputes under the Draft Convention as a Whole, 72 id. at 84 (1978)Google Scholar; Rosenne, , Settlement of Fisheries Disputes in the Exclusive Economic Zone, 73 id. at 89 (1979)Google Scholar.

16 In the Hohfeldian sense of such terms (see note 13 supra). For Hohfeld, a privilege (or liberty) is the opposite of a duty and a power is the correlative of a liability. Cf. Kocourek:

Since freedom is the base from which and for which legal transactions are entered into, the significance of the idea of jural relationship becomes apparent—a jural relation is a situation of fact upon which one may affect (through the existence and exercise of a power) or may claim to affect (because of the existence of a duty), the freedom of another with legal consequences.

Kocourek, A., Jural Relations 16 (2d ed. 1928)Google Scholar.

17 In the sense in which Kelsen used the word. Concretization (or individualization) is the process by which “the general norm which, to certain abstractly determined conditions, attaches certain abstractly determined consequences, [is] individualized and concretized in order to come in contact with social life, to be applied in reality.” Kelsen, H., General Theory of Law and State 135 (tr. Wedberg 1945/49)Google Scholar.

18 For an account of the later stages of the negotiation, see Oxman, , The Third United Nations Conference on the Law of the Sea: The Eighth Session (1979), 74 AJIL 1, 19–23 (1980)Google Scholar, and — The Ninth Session (1980), 75 id. at 211, 227–31 (1981).

19 For inter-state sea boundary agreements, see the series published by the U.S. Dep’t of State, Office of the Geographer, Limits in the Seas; Papadakis, N., International Law of the Sea: A Bibliography 116–23 (1980)Google Scholar.

20 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), 1969 ICJ REP. 3 (Judgment of Feb. 20). See Friedmann, , The North Sea Continental Shelf Cases—A Critique, 64 AJIL 229 (1970)CrossRefGoogle Scholar; Grisel, , Lateral Boundaries and the ICJ Judgment , id. at 562 (1970)Google Scholar; Blecher, , Equitable Delimitation of Continental Shelf, 73 id. at 60 (1979)Google Scholar; Rhee, , Equitable Solutions to the Maritime Boundary Dispute between the United States and Canada in the Gulf of Maine, 75 id. at 590 (1981)Google Scholar. For further references, see Papadakis, supra note 18, at 120–22.

21 The United Kingdom and the French Republic Delimitation of the Continental Shelf Decision of 30 June 1977, CMND. 7438 (1978), reprinted in 18 ILM 397 (1979). See Bowett, , The Arbitration between the United Kingdom and France concerning the Continental Shelf, 49 Brit. Y.B. Int’l L. 1 (1978)Google Scholar; McRae, , Delimitation of the continental shelf between the United Kingdom and France, 15 Can. Y.B. Int’l L. 173 (1977)Google Scholar; Colson, , The United Kingdom-France Continental Shelf Arbitration, 72 AJIL 95 (1978)Google Scholar, and —Interpretive Decision of March 1978, 73 id. at 112(1979); Quéneudec, L’Affaire de la délimitation du plateau continental entre la France et le Royaume- Uni, 83 Rev. Générale Droit Int’l Public 53 (1979).

22 The text of Article 74 is as follows (the text of Article 83 being the same with the substitution of references to the continental shelf):

Delimitation of the exclusive economic zone between States with opposite or adjacent coasts

1. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement.

23 North Sea Continental Shelf Cases, 1969 ICJ Rep. at 47.

24 It would be invidious to mention any particular names among those who have contributed to such an approach to international law beyond acknowledging the leading role of Myres S. McDougal.

25 North Sea Continental Shelf Cases, 1969 ICJ Rep. at 46.

26 Fisheries Jurisdiction Case (UK v. Iceland), 1974 ICJ Rep. 3, 31 (Judgment of July 25).

27 Especially the (British) Bill of Rights (1689), the great decided case of Entick v. Carrington (1765), the (United States) Declaration of Independence (1776) and (federal) Constitution (1789, with the Bill of Rights amendments of 1791), and the (French) Declaration of the Rights of Man and of the Citizen (1789). For Entick v. Carrington, see (1765) 19 State Trials 1029.