clauses and rules followed suit, which sometimes were not entirely compatible with
traditional general law or previous specialized law.
7 The debate went on for some
years, with fragmentation at the center of the debate, embraced as inevitable (though
not necessarily good) by some, demonized by others,
8 until a conciliatory position
gained momentum. As it seemed, fragmentation was (and remains) rather “natural”
to international law, as it is constantly being shaped by the emergence of new values
and by the specific demands of subjects in a pluralistic global society.
9
In that sense, the “functional specialization” of international law partially helps
explain the emergence of special legal regimes, based on the Weberian idea of
formal rationality and functional specialization in modern bureaucracies
10 to understand the emergence of special international rules. Partially, because that theory does
not apply in its entirety to the law of the sea, which is not the result of a perceived
need for rules to regulate the ocean, but the consequence of a long-standing clash of
interests that had been dragging on for the past four centuries. First, in the form of
custom, then as treaties.
That said, it does make sense to refer to a certain degree of “functional specialization” in the law of the sea since the end of World War II, when a new set of
qualities were attributed to oceans which entirely changed the significance of those
large bodies of water in the eyes of states. Until the end of that conflict, the traditional
dual division took only two dimensions of the seas into account: water surface and
water column. Oceans were essentially vectors for the carriage of goods and
transport of persons (surface), as well as sources of food and vectors of communication, via submarine cables (water column).
After 1945, technological breakthroughs added other dimensions to the equation,
i.e. subsoil and airspace. At stake were not only living resources (fisheries), but
especially non-living resources, such as hydrocarbons and minerals on and underneath the seafloor. Humankind was finally able to explore and exploit natural
resources, namely hydrocarbons, in depths unknown to men before. In addition to
that, technologically advanced states were able to capitalize on energy resources
from the airspace above water, such as wind and solar energy. In a nutshell,
perception of the economic and strategic meaning of this pluri-dimensionality of
the seas played a most relevant role in precipitating objection not only to the
traditional dual division, but also to the preponderance of untouchable freedoms. It
became clear to international lawyers that the law of the sea was undergoing
profound changes, to such an extent that even during negotiation on a binding treaty
7 Koskenniemi (2006), p. 14.
8 Prominent scholars such as Teubner and Fischer-Lescano embraced the rhetoric of fragmentation.
See Fischer-Lescano and Teubner (2004), p. 999. On the other side, dismissing fragmentation and
calling for unity was Cançado Trindade (2010), p. 37.
9 The discussion has cooled off recently, with the overriding conclusion that the unity of international law was never at stake, but was just forced to coexist with newer types of rules and newer
demands. It is the case of Anne Peters, to whom international law has entered a benevolent phase of
“regime interaction” and politicization. See Peters (2016), p. 1.
10 Weber (1978), p. 85.
2.1 The Law of the Sea as a Special Legal Regime of Public International Law
21
traditional general law or previous specialized law.
7 The debate went on for some
years, with fragmentation at the center of the debate, embraced as inevitable (though
not necessarily good) by some, demonized by others,
8 until a conciliatory position
gained momentum. As it seemed, fragmentation was (and remains) rather “natural”
to international law, as it is constantly being shaped by the emergence of new values
and by the specific demands of subjects in a pluralistic global society.
9
In that sense, the “functional specialization” of international law partially helps
explain the emergence of special legal regimes, based on the Weberian idea of
formal rationality and functional specialization in modern bureaucracies
10 to understand the emergence of special international rules. Partially, because that theory does
not apply in its entirety to the law of the sea, which is not the result of a perceived
need for rules to regulate the ocean, but the consequence of a long-standing clash of
interests that had been dragging on for the past four centuries. First, in the form of
custom, then as treaties.
That said, it does make sense to refer to a certain degree of “functional specialization” in the law of the sea since the end of World War II, when a new set of
qualities were attributed to oceans which entirely changed the significance of those
large bodies of water in the eyes of states. Until the end of that conflict, the traditional
dual division took only two dimensions of the seas into account: water surface and
water column. Oceans were essentially vectors for the carriage of goods and
transport of persons (surface), as well as sources of food and vectors of communication, via submarine cables (water column).
After 1945, technological breakthroughs added other dimensions to the equation,
i.e. subsoil and airspace. At stake were not only living resources (fisheries), but
especially non-living resources, such as hydrocarbons and minerals on and underneath the seafloor. Humankind was finally able to explore and exploit natural
resources, namely hydrocarbons, in depths unknown to men before. In addition to
that, technologically advanced states were able to capitalize on energy resources
from the airspace above water, such as wind and solar energy. In a nutshell,
perception of the economic and strategic meaning of this pluri-dimensionality of
the seas played a most relevant role in precipitating objection not only to the
traditional dual division, but also to the preponderance of untouchable freedoms. It
became clear to international lawyers that the law of the sea was undergoing
profound changes, to such an extent that even during negotiation on a binding treaty
7 Koskenniemi (2006), p. 14.
8 Prominent scholars such as Teubner and Fischer-Lescano embraced the rhetoric of fragmentation.
See Fischer-Lescano and Teubner (2004), p. 999. On the other side, dismissing fragmentation and
calling for unity was Cançado Trindade (2010), p. 37.
9 The discussion has cooled off recently, with the overriding conclusion that the unity of international law was never at stake, but was just forced to coexist with newer types of rules and newer
demands. It is the case of Anne Peters, to whom international law has entered a benevolent phase of
“regime interaction” and politicization. See Peters (2016), p. 1.
10 Weber (1978), p. 85.
2.1 The Law of the Sea as a Special Legal Regime of Public International Law
21