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The Shifting Public Order of the Oceans

Abstract:

The oceans of the world at once separate and connect us. As much as the sea provides a formidable natural barrier between the continents, it also provides a means of contact and communication, a navigable expanse and plentiful resource that has long been exploited for both individual and collective gain. Over the course of history, powerful maritime states have played the primary role in shaping the public order of the oceans. Although state practice continues to play a dramatic role, the twentieth century also witnessed prolonged and repeated efforts to codify that practice into a veritable treaty-based Law of the Sea.

In 1967—between one international effort at codification and another—Malta’s Ambassador to the United Nations, Arvid Pardo, famously urged the U.N. General Assembly to take “immediate action to prevent the breakdown of law and order on the oceans” in the face of growing concern that exactly such a breakdown was imminent. On December 10, 1982, the United Nations Convention on the Law of the Sea (“UNCLOS”), the product of decade-long negotiations, was opened for signature at Montego Bay, Jamaica. Having obtained the requisite sixty ratifications in 1993, UNCLOS entered into force on November 16, 1994. Eight years later, the United Nations proudly proclaimed that “[UNCLOS] established for the first time one set of rules for the oceans, bringing order to a system fraught with political conflict.”

But while UNCLOS set forth a widely agreed-upon set of rules, it is less clear whether its broad prescriptions created order out of chaos. Since the end of the Cold War, disorder on the oceans appears resurgent. This breakdown takes a variety of forms, including piracy, trafficking in drugs or people, illicit fishing, and degradation of the marine environment. The system of open registries, or flags of convenience, permits the facile concealment of ship ownership behind the corporate form. Lax flag state enforcement of shipping regulations leads to sub-standard vessels that pose hazards to crew and coast, as well as to the marine environment. A range of non-navigational practices also promotes and sustains disorder. These practices include unilateral, excessive claims over the extent of the territorial sea or the continental shelf, particularly through gross manipulation of the straight baselines method. UNCLOS is widely considered “one of the most comprehensive and well-established bodies of international regulatory norms in existence . . . buttressed by longstanding international norms, and formal legal agreements, critical to creating a more secure international environment.” Nevertheless, the persistence of maritime disorder indicates a critical gap between the prescription of law and the capacity or will to make that prescription effective. Alternatively, in some instances, the prescription itself may be lacking, either in specificity, scope, or adaptability to evolving circumstances. UNCLOS is undoubtedly an historic achievement, but its successful translation into an effective regime of international law is a process in need of frequent reassessment and adjustment.

The sea and its system of legal norms, however, risks characterization as a classic “out of sight, out of mind” problem. Simply because most activities on the oceans take place at some distance from our daily lives on land, issues of maritime law and oceans management are not cordoned off from transnational problems, particularly global security, that demand nearly constant attention. Renewed efforts by the United States and its allies to neutralize threats such as the proliferation of weapons of mass destruction (“WMD”) have placed a new and sustained focus on the legal regime regulating maritime behavior. The exploitation of the oceans for the transport and exchange of dangerous weaponry and technology is a global problem facilitated by the same freedom of navigation by sea that legal prescriptions have carefully preserved over time. Writing over forty years ago, professors McDougal and Burke noted that “[t]he common interest in maintaining a large measure of freedom from interference on the high seas has not been seriously questioned for some decades.” This Article asks whether seriously questioning that freedom is now permissible and wise, or whether the intervening years have recalibrated the acceptable “measure of freedom from interference,” on the high seas or elsewhere. The disorder lurking beneath the façade of legal order represented by UNCLOS—the troubling notion that “the entire structure built to regulate [the sea] is something of a fantasy floating free of the realities”—exacerbates the difficulty of reconciling “the overriding principle of noninterference” with the need to promote community well-being, both within and beyond the maritime context.

Print Archives

Against Global Governance in the WTO

In “Global Governance and the WTO,” Professor Andrew Guzman has done an impressive job of articulating a vision of the World Trade Organization (WTO) that many international lawyers share. As its title suggests, Guzman’s article is ultimately a call for world government by the WTO. In this necessarily brief response, we describe some of the more important theoretical and practical problems that Guzman’s proposal presents. First, in Part II, we address the matter of cross-issue bargaining in the WTO. While cross-issue bargaining can create gains for parties to a contract, substantive regulatory deals may be vehicles for “amoral” wealth transfers among interest groups. Unlike the present WTO, which works to minimize the influence of one particular form of interest group—protectionists—the transformed organization would facilitate agreements that empower special interests.

In Part III, we discuss the potential of the dispute settlement system as a credibility-enhancing device. We demonstrate why the dispute settlement system might actually discourage cross-issue bargains by vesting extraordinary discretion in WTO tribunals. This discretion would entail an intolerable lack of predictability for WTO members, particularly given the sensitivity of the matters involved. We explain why developing countries would be especially chary of signing on to such a regime, and show how extending the dispute settlement system to cover a variety of non-trade issues might upset the sensitive dynamic in which exporters work to assure national compliance with WTO obligations.

Finally, in our conclusion, we briefly address another possible model for the future of the WTO, one that we have previously described at length. Rather than transform itself into a global government—a World Trade, Economic, Environment, Human Rights, Labor, and Public Health Organization—the WTO should stick to its limited but important role: reducing barriers to trade among nations.

Book Reviews, Print Archives

Book Review: From Nuremburg to the Hague: The Future of International Criminal Justice

The last decade of the twentieth century witnessed the rapid expansion of international criminal law. Though catalyzed by many factors, signicant credit for this remarkable growth can be attributed to two mutually reinforcing phenomena. First, following the bloodshed in Rwanda and Yugoslavia, the international community resurrected the criminal tribunal as a fundamental component in defining and punishing criminal acts committed by state actors. Second, as the decade progressed, national governments became increasingly ready to protect their citizens’ rights by asserting “universal” jurisdiction over foreigners alleged to have violated those rights; most famously, this resulted in the London arrest of Augusto Pinochet. The growing acceptance of and jurisprudence surrounding both international criminal tribunals and universal jurisdiction came together in June 1998 when the United Nations adopted the Rome Statute, which defines the structure of the new International Criminal Court (I.C.C.).

Even if the immediate impetus for creating the I.C.C. was violence both in the Balkans and the African Great Lakes and related domestic judicial activism in the 1990s, the true forebear of the new Court is the Nuremberg Trials [hereinafter “the Trials”] following World War II; it was there that many of the notions later solidified by the Rome Statute were first promulgated, including the concept of “crimes against humanity.” Though the heritage of Nuremberg is evident in the I.C.C., the Trials have proven an uneasy foundation for the new body, with the precedent of Nuremberg’s dual political/judicial purpose causing some observers, and even potential I.C.C. member states, to shy away from endorsing the court. Philippe Sands’s edited work, From Nuremberg to the Hague: The Future of International Criminal Justice provides a wideranging examination of these issues, analyzing the Nuremberg Trials themselves, their impact on the ad hoc tribunals organized in response to Rwanda and Yugoslavia, and their likely impact on the potential of the I.C.C.

Book Reviews, Print Archives

Book Review: Law and Colonial Cultures: Legal Regimes in World History, 1400–1900

Challenging scholars of both colonial history and globalization, Lauren Benton’s Law and Colonial Cultures argues that state-centered legal orders emerged as a result of the presence of colonial powers, both European and non-European. She describes how the colonial state developed through jurisdictional conflicts between native judicial systems and colonial legal systems. These conflicts led colonial states to assume increased control of important economic transactions. Benton tackles both the scholarly accounts that claim colonizers overran helpless native populations and those that argue only European or Western powers pursued policies aimed toward promoting markets or economic growth. Benton even takes on one of the sacred cows of traditional colonial studies: Chinua Achebe’s Things Fall Apart. In Achebe’s novel, the protagonist, Okonkwo, faces two trials: the first by his fellow villagers and the second by a British colonial tribunal. In Benton’s rendering, Achebe depicts the first as part of a generally well-functioning Nigerian society suddenly ripped apart by the arrival of British colonialists, and the second as an entity almost entirely foreign to Okonkwo. In essence, Benton argues that, as a historical matter, not only would Okonkwo have been aware of the law governing British colonialists, but he would have taken advantage of it if he saw the possibility of a better outcome.

Benton traces, through five episodes in world history, how the colonizer’s law began as one of several legal systems, then gradually expanded to areas of economic concern, such as the enforcement of contracts or the transfer of property, and finally made a place for both indigenous and colonizing litigants. In seventeenth-century North America and Iberia, eighteenth-century Africa and India, and nineteenth-century Uruguay, Benton traces parallels in the historical development of the state-centered order. The reader will find engaging and thorough narratives on the legal history of these regions, but will be left unconvinced that a single phenomenon is at work. Benton is more successful at completing the historical narratives that emphasize the colonial state as resulting from competing European empires or from local processes that developed “national” consciousness in colonies. To this end, she claims that jurisdictional conflict formed a type of regime for this period.

Print Archives

Federalism and the Tyranny of Religious Majorities: Challenges to Islamic Federalism in Sudan

Throughout the vicious cycle of dictatorships and civil wars that has characterized its post-independence history, Sudan has presented a classic case of religious majoritarian authoritarianism. The country’s northern Muslim elites have consistently argued that the Muslim majority has an inherent democratic right to establish an “Islamic” state governed by religiously inspired laws and norms. Since the early days of independence, and particularly since Islamists assumed power in 1989, this Islamic majoritarianism has manifested itself in a wide array of constitutional and legal pronouncements, as well as political practices, that entrench Islam in Sudan’s constitutional, political, and legal systems. Such persistent attempts to enforce an Islamic identity on the entire country have left its mostly southern religious minorities alienated and provoked numerous rebellions and secessionist movement over the past fifty years.

This Note argues that these formulations of Islamic federalism fall short of reversing the course of majoritarian tyranny in Sudan. This conclusion is of grave consequence given that the Machakos-stipulated six-year transitional period before a southern vote on self-determination—effectively the last chance for a united Sudan—will be under a variant of Islamic federalism. This formulation may render the southern vote for secession a foregone conclusion. The central aim of this Note is to explore the viability of federalism within an Islamic framework as an adequate response to majoritarian tyranny against non-Muslims in Sudan. Although there has been extensive scholarship on the role of religion in Sudanese politics, rarely has the issue been analyzed through the lens of majoritarian tyranny.

Print Archives

Judicial Enforcement of the WTO “Hormones” Ruling Within the European Community: Toward EC Liability for the Non-Implementation of WTO Dispute Settlement Decisions?

On September 30, 2003, the European Court of Justice (ECJ) contemplated the possibility of holding the European Community liable for the non-implementation of World Trade Organization (WTO) Dispute Settlement Body (DSB) decisions. The implications of the ECJ’s reasoning in these judgments could be revolutionary not only for the EC legal order, but also for the legal systems of all WTO members. To date, no court of a WTO member state has recognized a private party’s right to rely on DSB rulings to initiate a claim of liability against a member state. Since WTO rules lack direct effect, member states typically prevent private parties from invoking DSB rulings before domestic courts. Hence private business operators are barred from recovering the damages suffered from non-compliance with DSB rulings.

The case at hand arose when a French meat trading company, Biret International, and its holding company, Etablissement Biret et Cie SA, filed actions before the Court of First Instance (CFI) of the European Communities seeking compensation for damages allegedly suffered as a result of the adoption and continuing enforcement of an EC ban on hormone-treated beef. The ban had already been condemned by the WTO in the well-known Beef Hormones cases. Biret, relying on WTO rulings in the Beef Hormones cases, asked the court to hold the European Community liable for failing to implement the decision within the prescribed period of time. In line with the ECJ’s longstanding tradition of denying the direct effect of General Agreement on Tariffs and Trade (GATT) and WTO law, the CFI rejected the claim on the ground that neither WTO agreements nor rulings could create rights for private individuals. In an appeal of this judgment, the ECJ dismissed the action on factual grounds, but did not rule that the plaintiff’s claim was unfounded. In this way, the ECJ left open the possibility that a WTO dispute settlement ruling could provide grounds for imposing liability on the European Community.

The objective of this Recent Development is to provide the reader with an analysis of the Biret judgments and their possible legal implications. Part I provides the necessary framework to understand the legal context underlying the Biret judgments. The Part briefly discusses the direct effect of WTO law, the functioning of the WTO dispute settlement system, the (non-) role of private parties, and the historical background of the Beef Hormones cases. Part II examines the Biret judgments by the CFI and the ECJ, and also the opinion of Advocate General Alber. Part III focuses on the legal implications of the Biret cases and their potential impact on the EC legal order and on other WTO member countries.

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