A Medium So Different: UNCLOS and Emerging New Concepts in Political Science and International Law

The title of the paper refers to Elisabeth Mann Borgese’s dictum, that the ocean is different from Earth and therefore requires different or even entirely new concepts. She was of course not the first to make such claims. At the beginning of modern international law Hugo Grotius’ introduced the crucial distinction between spaces which could be appropriated and owned and those which could not. In principle appropriable, but not yet appropriated spaces were terra nullius; principally un-appropriable spaces res communis. It is this characterization on which Grotius’ famous justification for the freedom of the seas rests. In territory of national sovereignty, by contrast, exclusive rights over areas and resources are exercised on the basis of their appropriation. At the same time as this distinction separates land from see, it separates international spaces and their ordering principles from national ones. What the here proposed paper seeks to reconstruct, is the connection between the constitution of ‘the International’ in the disciplines of International Law and International Relations, and the constitution of the Ocean and oceanic order as different from territorial order, the ocean as a genuinely non-national, thus inter-national, space. I would like to do so by scrutinizing the respective academic commentary and work accompanying and analyzing the negotiation process of the third United Nations Conference on the Law of the Sea (UNCLOS III, 1973-1982), as well as those accounting for and appraising its outcome, the United Nations Convention on the Law of the Sea. I want to show that there are indeed crucial connections between accounts, analyses, and appraisals of the process and its outcome and emerging new concepts or even paradigms of the International in both disciplines. International Law commentary on the Law of the Sea envisions or already celebrates structural changes of the international legal order coming with the new treaty. In International Relations cooperation imperatives in UNCLOS are interpreted as functional response to the challenges of interdependence, global development and environmental protection, or as an expression of a collective learning process of a cognitive or moral nature in relation to the human-environment or North-South relationship, making it necessary to abandon the dominant theoretical paradigm of Realism and instead develop new approaches to the International. Enthusiasts have accordingly described UNCLOS as a “revolutionary event” (Allott 1985: 443). Even more sober observations saw UNCLOS as an “indication of a fundamental change in international relations, which [...] means nothing less than the recognition by the international community of the common good orientation of state action in international politics” (Wolf 1991: 137). To show how exactly such conclusions are tied to the specificity of sea spaces is the aim of this paper.