12.1 Introduction

Future observers will not hesitate in concluding that our age has been profoundly marked by the anxieties of the adjective “global.”Footnote ³ In law, history, ethnography, and other diverse fields of knowledge and practice, much ink has been spilled on what exactly does it mean to have a global perspective.Footnote ⁴ For better or worse, the relentless onslaught of what is understood as “globalization” rang the death knell of methodological nationalism across the social sciences: The nation-state has slowly, but surely, lost its privileged place as primal unit of the international system.Footnote ⁵

In this vein, the (international) legal field has witnessed the emergence of an ever-growing body of literature that questions the traditional assumptions regarding the (state-centric) sources and processes that govern lawmaking in the international sphere. Thus, it appears that a classical approach concerned mainly with state consent can no longer explain – if it ever did – the complex regulatory dynamics of informality, normative pluralism, and fragmentation that occur in contemporary global governance.Footnote ⁶ Transnational law, a term coined by Jessup in the past century, seems to be more analytically precise than international law to categorize the way regulation at the world scale occurs nowadays.Footnote ⁷ In this spirit, international lawyers and their fellow interdisciplinary travelers have opened the “black box” of the state – daring to “disaggregate” its inner contents and de-reify its “univocity.”Footnote ⁸ This, in turn has diminished its relative importance vis-à-vis other actors in the international sphere, such as international organizations and even private actors.

Implicit in this narrative, however, lies an ambiguous assumption about the role of time in the transformations that occur in (international) law and society. This assumption revolves a seemingly banal question: what is globalization and when did it exactly occur? Was it in the nineties, as most early theorists of globalization tend to argue? Or, as historians suggested, was there a deeper longue durée in the genealogy of the processes of world-making?Footnote ⁹ But even if this was the case, when did this earlier and broader globalization occur?Footnote ¹⁰ If not the nineties, were then the seventies the pivotal decade where the “shock of the global” was first felt?Footnote ¹¹ But what to make then of the pioneer global connections of the nineteenth century and its so-called first globalization?Footnote ¹² And what shall we do if, as postcolonial scholars have argued, these different interpretations about the origins of globalizations have been dazzled by the spell of Eurocentrism, and instead one must go back to the Early Modern or even the Medieval periods to think about non-Western global connections?Footnote ¹³ Perhaps, as my decolonial Latin American colleagues have suggested, one could trace the start of globalization all the way back to the Caribbean encounters that happened in 1492.Footnote ¹⁴

In this chapter, I do not aim to provide a definitive and comprehensive answer of how international legal scholars should engage with the “origins” of globalization or of “transnational law.”Footnote ¹⁵ Indeed, as Bloch reminds us, often the search for origins can mislead historians and laypeople alike into confusing causes and effects.Footnote ¹⁶ Instead, my much more modest contribution is to highlight that, for better or worse, international lawyers have overwhelmingly come to adopt one (out of many) interpretations about the beginnings of globalization: the so-called neoliberal late eighties.Footnote ¹⁷ While it is undeniable that the end of the cold war has brought unprecedented qualitative and quantitative changes in the way global integration occurs, it might also be a disservice to focus too much on the novelty of it all.Footnote ¹⁸ Or, to paraphrase Bloch again, one must not exaggerate the advantages of the present.Footnote ¹⁹ In fact, for a long time the state has often relied –willingly or not – on hybrid and private authorities to “govern in different sites, in relation to different objectives.”Footnote ²⁰ Historians, to paraphrase Tuori, have long shown that the only accurate use of the adjective “Westphalian” is related to dogs, not states or world-systems.Footnote ²¹

For this reason, in this chapter I invite the discipline to also interrogate the plethora of instances of private regulation and non-state lawmaking that predated the arrival of neoliberal globalization at the end of the twentieth century. To do so, I reconstruct the process through which private and public actors from the North Atlantic competed within (and beyond) the International Organization for Standardization (ISO) to set the global standards for containerized maritime shipping in the mid-twentieth century. I argue that in this “Keynesian” epoch, the lines between the private and the public were as blurry as they seem in our contemporary regulatory dilemmas. To be sure, I do not claim there was anything distinctively “Kenyesian” about shipping containers. My use of the adjective is meant to describe how they emerged in a period that the Western legal imagination has often associated with the dominance of a broad Keynesian compromise in macroeconomic management during the so-called Les Trentes Glorieuses (1945–1975), which was later upended by the general crisis of the seventies and the rise of “neoliberalism.”Footnote ²² This framing, I suggest, casts a shade of doubt on the narratives that center the novelty of private lawmaking. It highlights, instead, that we have much to learn from the long histories of “pre-neoliberal” non-state transnational regulation – of which maritime shipping is but merely one example. After the introduction already presented to the reader, I turn to the relative hegemony of the ‘globalization as a product of the nineties’ thesis in contemporary studies of transnational law-making and private governance (Section 12.2). Then, I turn to the concrete case of shipping containers as an example of “pre-neoliberal” transnational standardization (Section 12.3). Finally, I close with some concluding remarks on the importance of material “nuts and bolts” standards in global governance, at a time in which most attention seems to turn to the allure of immaterial, digital, or service-based standards (Section 12.4).

12.2 Visions of Globalization in the Scholarship on Private Lawmaking

Despite the “almost infinite variety” of transnational law and its corresponding analyses,Footnote ²³ there is a common trope in most of the recent scholarly interventions: a repetition of key words that denote the emergence of something new or the transformation of a previous state of affairs. As Steinitz puts it, regardless of the differences between different theories or approaches, one can detect an underlying sense of “increased urgency” in academic narratives.Footnote ²⁴ Transnational legal norms or actors “have grown in prominence,”Footnote ²⁵ are “increasingly frequent,”Footnote ²⁶ or stem from an “evolving complex society.”Footnote ²⁷ Instances of private lawmaking emerge out of the “progressive” interlinking of commerce or on the heels of certain rising technologies of communication or transport.Footnote ²⁸ For instance, Berman links both the rise of human rights norms (which he pinpoints to a post–world war II constellation) and the end of the cold war in an overarching narrative arc of the erosion of traditional law throughout the twentieth century.Footnote ²⁹ Graz, in turn, suggest the late eighties were the moment in which governance finally escaped from the narrow corridors of corporate management to become a global trend – a view that is shared by Delimatsis’ helpful introduction to this edited volume (“The Resilience of Private Authority in Times of Crisis,” Chapter 1).Footnote ³⁰ To cite one last example, Zumbansen notes that “while the globalization of human and institutional, material and immaterial affairs is widely accepted to have prompted, inter alia, significant challenges for inherited conceptual frameworks of societal ordering, the contours of what will replace them remain nebulous at best.”Footnote ³¹

But the rather ambiguous notion of globalization itself is hardly problematized in a historical fashion.Footnote ³² While interventions recognize that the phenomena of transnational and private governance is not entirely new, scholars tend to suggest we are standing on the verge of a threshold.Footnote ³³ Perhaps the most explicit elaboration of this radical transformation has been offered by Pauwelyn, Wessel, and Wouters, in their oft-cited conclusion that the post–cold war formal lawmaking enthusiasm of the nineties has bled into a more complicated landscape of informal regulation in our post-national age.Footnote ³⁴ This framing dovetails neatly with the contested history of the body of knowledge and practices that we often understand under the label of “neoliberalism.”Footnote ³⁵ While Slobodian and other global historians have shown the long roots of this school of thought in the early twentieth century, few would deny that its heyday would come in the late eighties and in specially in the aftermath of the cold war.Footnote ³⁶ Indeed, wouldn’t it make sense to date the rise of private rule-making precisely at the crossroads of this paradigm shift in the ways states and markets (and their relations) were understood in Western political thought?Footnote ³⁷

In this chapter, I do not want to create a straw person argument. It is undeniable that there is much truth to this framing. At the same time, following Winner and other proponents of the history of science and its cousin science and technology studies (STS), I want to take a step back before assuming the novelty of our neoliberal world.Footnote ³⁸ Instead of seeing technology as a game changer per se, Winner would push us to see how seemingly unprecedented forms material and ideological techniques draw from the legacy of previous institutional arrangements.Footnote ³⁹ While it is tempting to feel that our age has long surpassed the dilemmas of the previous century, a closer look into the historical record shows that many of the techniques of governance that we now associate with the emergence of private authority in the last decades have indeed long roots in the previous forms of regulatory imaginaries. Logistics, as we will see with more detail, was long a science closely related to military and public power before it became the realm of transnational private lawmaking.Footnote ⁴⁰ Technical standards created by private transnational bodies, despite their recent salience, were an integral part of the nineteenth-century project of “governing the world.”Footnote ⁴¹ As Tzouvala (drawing from the work of the historian Pedersen) recently noted, international legal scholarship on the use of standards, indicators, and “international best practices” can learn much from the seemingly unrelated context of the interwar colonial mandates system of the League of Nations.Footnote ⁴² While the power of multinational corporations and their supply chains might seem unprecedented, our colleagues working on imperial history would be quick to point out that “company-states” have been a fundamental force in the making of the modern world.Footnote ⁴³ While Delmitatsis convincingly argues that enormous transformations have occurred in the domain of privately led normative constellations in the last decades, in this chapter, I take his caveat that one must not forget that not all of this means that non-state regulatory orders are –themselves – a “recent phenomena.”

Indeed, as Zumbansen himself noted,

For these reasons, my aim in this chapter is to push transnational legal scholars to look for traces of our contemporary fascinations in previous times and places, especially those in which the silhouette of territorial state is less visible: cases of colonial administration and the high seas.Footnote ⁴⁵ I suggest that we might be able to understand better the resilience of private authority and lawmaking if we place their normative activity in the a broader chronological and spatial framework of analysis.Footnote ⁴⁶ In what follows, I provide a modest example of the role of private and non-public actors in the creation of maritime shipping standards in the mid-twentieth century, long before the advent of neoliberalism (broadly understood). I suggest this is only but an initial sketch of a history that remains to be written about the domestication of land and sea by private (or privatized) visions of world ordering in the second half of the twentieth century.Footnote ⁴⁷ To do so, I draw from the rich literature on containerization that has emerged in neighboring disciplines to augment our understandings of transnational regulation.Footnote ⁴⁸

12.3 Keynesian Standardization? Container Standardization before the Heyday of Neoliberalism

To begin, a word or two on the world of pre-containerized shipping is in order, so the reader can better grasp the sociotechnical transition that occurred in just a couple of decades. Indeed, if one looks today at what George has called our “mechanized, inhuman docks,”Footnote ⁴⁹ it is difficult to imagine these places as bustling entrepôts of human interaction. For instance, as its Port Authority itself recognizes and celebrates, Hamburg has been “transformed dramatically” since the first container ship arrived on their docks on May 31, 1968.Footnote ⁵⁰ Before that, in crowded and dense spaces, the movement of cargo and the conditions of labor were negotiated at every twist and turn. For this reason, Sekula argues that the European ports of the interwar era should be remembered as unstable melting pots of “overlapping cosmopolitanisms, both bourgeois and proletarian.”Footnote ⁵¹ Appalling work conditions converted these docks into spaces of contention, in which disputes between labor and capital slowed down the operations of an already lethargic industry. Tight relationships between kin and a particular understanding of the nature of the dangers of this industry gave rise to a distinct “maritime masculinity” working class culture.Footnote ⁵²

For our present discussion, what matters is that all goods were transported as break-bulk cargo, which can be “characterized by its multiplicity and diversity [as] cargo arrive[d] in any number of shapes, sizes, and configurations.”Footnote ⁵³ This, of course, required “swarms of workers [that] clambered up gangplanks with loads on their backs or toiled deep in the holds of ships, stowing boxes and barrels in every available corner.”Footnote ⁵⁴ For this reason, maritime shipping demanded a copious amount of workers, both when it comes to sailors and stevedores (also called dockers in the United Kingdom, wharfies in Australia, or longshoremen in the United States). What is more, the packing, loading, and delivery of cargo took quite some time, which entailed that vessels could spend more time at port than at the high sea. This “colorful chaos of the old time pier,” in which workers, cargo, and crewmates of all places swelled in spatially dense locales seems almost foreign in comparison with today’s automatized ports.Footnote ⁵⁵ The rise of containerized maritime trade – a revolution that occurred across several decades and regions of the globe – can only be understood in the backdrop of the crisis and collapse of this previous regulatory imagination of world ports.

In sum, this fragmented system of break-bulk cargo did not allow for standardized practices, which in turn implied that cargo loads, working conditions, and ship sizes were negotiated at every loading, departure, and arrival. In fact, laborers did not even have a fixed or guaranteed schedule of work. Across the North Atlantic, the turns of employment were adjudicated each dawn following a rather irregular practice called the “pick-up,” “shape-up,” or “scramble.” Thus, even in one country, ports worked under very different conditions. One example of this is the variety of jurisdictional approaches, regulations, and strategies pursued by organized labor in one coast of the United States compared to the other.Footnote ⁵⁶

Another important issue was the tight connection between the (private) merchant navy and the (public) military-industrial complex. One must note that the concept of the “merchant navy” itself was only coined amidst the interwar fears of the return of a total war.Footnote ⁵⁷ With the rise of oil and diesel power, naval strategy demanded “maritime time, previously unpredictable, [to be submitted] to a new metronomic industrial regularity.”Footnote ⁵⁸ With the cold war looming over the horizon, North Atlantic elites realized that it was important to maintain a robust and reliable national private fleet that could be temporarily enlisted in the support of the war effort if needed.Footnote ⁵⁹ In other words, maritime policy was strongly connected with the fears and anxieties of national security concerns, and private actors were expected to act taking into account this national interest rather than the pure maximization of profit. Of course, there were exceptions to this trend, especially in the industry of oil tanking, where some rogue companies were avoiding these national regulations by listing their ships in the registry of another (laxer) state: a practice we now call “flags of convenience.” Sekula and Khalili have shown that these unorthodox practices later became a template for containerships in the late eighties.Footnote ⁶⁰ However, in the fifties and sixties, public and private actors in the shipping field still saw their métier as an extension of national maritime war policy.

In exchange, North Atlantic states provided generous subsidies and enacted protectionist regulations to strengthen their domestic seafaring industries. In the United States, for example, the 1916 Shipping Act, the 1920 Jones Act, and the Marine Act of 1936 “combined a New Deal interest in invigorating the nation’s dormant industrial base with a concern for future [military] international engagements.”Footnote ⁶¹ While they required companies to use domestic captains, crews, and ships for all domestic trade, they rewarded their loyalty with discounted prices on wartime ships and public assistance for the creation of new models. Even if these measures did not apply for international trade, a similar mindset prevailed on the high seas. As Broeze reminds us, a transnational network of commodity and bulk conference maintained the stability of prices in transatlantic shipping.Footnote ⁶² While Hoovestal assumes that containerization has, from its very beginnings, implied a (neo)liberal challenge to state sovereignty and its regulatory overreach.Footnote ⁶³ I argue that this reading fails to capture the enormous dependence of early (and even contemporary) containerized trade on state subsidies, international trusts, and other non-market mechanisms.

It was in this context of a union between maritime trade and war policy and the irregularity of break-bulk cargo that the owner of a US trucking company first thought of linking sea and land in a single transport chain. While some companies had tried loading automobiles and trailers into ships (a technique that is now called roll-on & roll-off: ro/ro), the owner of this North Carolina trucking company, the magnate Malcolm McLean, wanted to maximize the amount of cargo per ship. He suggested removing the chassis of the truck and leaving only a box filled to the brim with goods on the ship’s deck. After acquiring a peripheral steamship firm (renamed Sea-Land), McLean had to remove himself from the chair of his previous hauling company, to avoid contravening the regulations of the US Interstate Chamber of Commerce.Footnote ⁶⁴ In what has been called an “unprecedented piece of financial and legal engineering,” he pursued a leveraged buyout with a loan delivered by the National City Bank (now Citibank) to buy a bigger shipping firm: Waterman.Footnote ⁶⁵ Then, he bought (through a subsidized government program) a couple of old World War II–era oil tankers, which he adapted to make the pioneer vessels of containerization. Instead of seeing McLean as a lone private entrepreneur, I argue that one must note his dependence on public subsidies and other elements of the regulatory landscape of the mid-fifties.

In his quest, McLean enlisted the help of an engineer named Keith Tantlinger from Brown industries (based in Spokane, Washington) to design the first modern shipping containers. These novel boxes could be stacked up to two when placed on a ship, travel by train, or fit in a chassis pulled by a truck, Tantlinger suggested a length of thirty-three feet just because the available space aboard the refitted oil tankers was divisible by thirty-three, making these new boxes at least seven times bigger than all previous experiments. The first container-carrying ship left port in New York in 1956, signaling the start of containerized trade on the US east coast. On the west coast, a rival company called Matson sailed its first hybrid ship in 1958, which was quickly followed by its first fully containerized ship in 1960. For Broeze, this was the threshold of a new decade in which “the fundamentals of the new system were determined, on the basis of which containerization during the 1970s could spread all over major trade routes of the world.”Footnote ⁶⁶

Before this global expansion could take flight, the “early days of containerization … were plagued by the kind of format war familiar to historians of science: differences in widths, interlocking methods, and internal as well as external specifications generated turbulence.”Footnote ⁶⁷ In 1957, McLean had used a slightly bigger model of thirty-five-foot long containers, as this was the maximum length of trucks allowed by the state of Pennsylvania. Over on the west coast, Matson instead opted to carry out an “extensive engineering analysis” that revealed that twenty-four feet was the best length for the narrow Hawaiian roadways, which their business model wanted to conquer. Moreover, after the Korean War, the US Army had been using ten-foot “Conex” boxes. With the purpose of calming the standards wars raging between overlapping regulatory authorities and competing companies, the US Maritime Administration (MarAD) created a panel in 1958 tasked with the creation of universal sizes for containers. The same year, the American Standards Association (ASA) (renamed to the American National Standards Institute [ANSI] in 1969), a private nonprofit organization, also created a task force with the same aim. Then the National Defense Transportation Association also demanded a seat at the table. The stage was set for a competition between different visions of (self-)regulation by private and public actors. I suggest we see this confrontation as an early case of what Delimatsis identifies as instances of “voluntary economic activism.” Each transport operator sought to cloak their private – and even often patented – standards with a stamp of public approval, thus setting the industry-wide norms of conduct. While the old system of maritime trade was not, yet, in crisis, private and public actors quickly understood that the potential of standardized containerized trade could create a “critical juncture” to reshape the rules of the game.Footnote ⁶⁸

In this context, MarAD created two expert commissions (on dimensions, construction, and fittings) tasked with endorsing “the principle of standardization of container sizes for the United States Merchant Marine.”Footnote ⁶⁹ This was not a minor issue, because only the ships that accommodated standardized containers could be allocated public “differential subsidie[s], mortgage insurance or other form of Government aid.”Footnote ⁷⁰ This can be seen as a pioneer case of “free riding of private ordering”: non-state actors benefit from state legitimacy and even public subsidies without assuming the political costs of their outward role as standard-makers. These norms, as Delimatsis argues, function “in the shadow of the state” but still have a very heavy weight in the sliding scale of bindingness due to their function as gatekeepers to the market or to public aid.Footnote ⁷¹

Due to the importance of these standards, it quickly became clear that creating a single universal size would not be easy, these committees instead tried to make a “modular family” of containers. In their proceedings, they argued that they “would have to be guided mainly by domestic requirements with the hope that foreign practice would gradually conform to our standards.”Footnote ⁷² Hence, they settled on a width of eight feet, as this was the average dimension in US regulations (whereas some European railroads and highways had a limitation of seven feet). The question of length, however, proved more controversial: as we have seen, the shipping companies of the east coast tended to prefer longer containers (thirty-five feet) whereas west coast firms would have preferred a length of twenty-four feet. As a compromise, MarAD suggested a modular family based on multiples of eight: eight feet, sixteen feet, twenty-four feet, thirty-two feet, and forty feet.Footnote ⁷³

On the other hand, also in 1958, ASA had created a Materials Handling Sectional Committee (MH-5). This committee was composed of several subcommittees, one of them tasked with “van” containers.Footnote ⁷⁴ This body suggested instead a modular family of twelve feet, seventeen feet, twenty feet, twenty-four feet, thirty-five feet, and forty feet. Against them both, the National Defense Transportation Association (which represented firms handling military cargo, without participation from “civil” shipping or trucking companies) instead pushed for the adoption of a system comprising lengths of multiples of ten feet (to facilitate integration with the Army’s Conex format).Footnote ⁷⁵ In the midst of this dispute, the chairperson of ASA’s MH-5 surprisingly agreed with the military cargo companies’ standards and argued for the elimination of the twenty-four foot and thirty-five foot sizes and to instead adopt a modular family of ten feet, twenty feet, thirty feet, and forty feet.Footnote ⁷⁶ In “three critical meetings” that occurred in late 1959, this proposal was eventually ratified.Footnote ⁷⁷ This left the two early proponents, Sea-Land and Matson, with abnormal sizes compared to the agreed upon standards. While they would try to overturn these sizes throughout the sixties (eventually raising their complaints against the ASA all the way up to the US Congress), their ultimate defeat meant that standardization helped latecomers “gain at the expense of the pioneers.”Footnote ⁷⁸

This struggle in the United States ultimately proved to be only a dress rehearsal for a later global dispute that began when, in 1961, the ISO created its own committee for the standardization of containers (chaired by the ASA).Footnote ⁷⁹ As Vince Gray (who worked in the US Merchant Marine Academy, the ASA, the US Navy, the US delegation to ISO, and ISO itself) reminds us, when ASA brought their case before the ISO for the creation of an ISO committee on container standards, they did so because they wanted to globalize their national formula.Footnote ⁸⁰ The assigned committee, Technical Committee 104, would have its inaugural meeting in New York (1961), followed by other meetings in France (1964), Germany (1964), The Netherlands (1965), London (1967), and the USSR (1967), and it would adopt its first global standard, ISO 668, in 1968. In 2020, this standard has just been updated for the seventh time, and it has now been joined by a wide variety of ISO standards on shipping containers.Footnote ⁸¹ It would be too simplistic, however, to tell this story as if it were simply a US imposition on the rest of the world.Footnote ⁸² Klose aptly noted that Kurt Eckelmann (the Hamburg-based shipping magnate who chaired the ISO’s subcommittee on container sizes) pushed for the ASA standards due to the profound divisions among the European delegations (and the absence of the global south at the negotiation table).Footnote ⁸³

For this reason, it would be more precise to narrate the ISO negotiation process as a long dispute not only between national preferences but also among the different transportation philosophies of shipping, trucking, and train executives from all around the North Atlantic region. Length and sizes were not the only thorny questions at hand. While Sea-Land had initially threatened to sue the firms that followed their interlocking designs, McLean and Tantlinger eventually permitted royalty-free use of their corner castings and twist locks.Footnote ⁸⁴ At the end of the process, the 1967 draft forwarded by the ISO to its member bodies for review included three accepted series of sizes, of which only Series 1 became a universal industry standard.Footnote ⁸⁵ According to this model, boxes should comply with a uniform height and width of eight feet (or 2,435 millimeters) and could have lengths of forty feet (12.192 meters), thirty feet (9.144 meters), twenty feet (6.096 meters), or ten feet (3.048 m).Footnote ⁸⁶ These new sizes eventually became the “universal yardstick of the brave new world of containerisation.”Footnote ⁸⁷ Ever since, the acronym TEU (twenty-foot equivalent unit) became a cornerstone of the new universal language of the maritime trade. The later global (and perhaps neoliberal) development of the containerization only became possible due to these seemingly banal normalized series of material practices and discursive knowledge that entrench a particular socio-technical imaginary of world commercial integration.Footnote ⁸⁸

12.4 Concluding Remarks: Material Standards in Global Governance

In their pathbreaking history of global standards, Yates and Murphy argue that we could periodize the creation of transnational engineering norms in at least three waves.Footnote ⁸⁹ While they recognize the undeniable importance of the “third wave” that emerged in the late eighties,Footnote ⁹⁰ they insist on the pioneer efforts of the late nineteenth century and the historical relevance of the processes that led to the creation of standards for a global market in the sixties and seventies.Footnote ⁹¹ In my view, international legal scholars have tended to focus mostly on the (undeniably important) actors and events of this third wave, paying little heed to the longer history of technical standardization.Footnote ⁹² In a way, this is entirely understandable – the third wave standards seem to deal with cutting-edge issues of social regulation that intersect with certain traditional legal concerns, like corporate social responsibility or environmental protection.Footnote ⁹³ Most importantly, the rise of the service economy has led scholars to focus their attention on the immaterial and digital “containers” that underpin global commerce today, instead of the sturdy old boxes that remind us more of the technological feats of yesteryear.Footnote ⁹⁴

Instead, I conclude this chapter with a plea for the interrogation of “old twentieth century” technological devices, especially their material implications. As I have explored more elsewhere, in the last decades across the social sciences and the humanities there have been important calls to reengage with the materiality of the social world, in the wake of the critique of the fascination of our intellectual age with discourse.Footnote ⁹⁵ Slowly but surely, even our discipline has come up to speed with this “new materialist” perspective that comes from feminist social theory and the history of science, leading to new studies of the material practices, objects, and infrastructures of global governance.Footnote ⁹⁶ But, as I have argued in the past, one of the limitations of these first waves of new materialist interventions has been their fidelity to “traditional” state and consent-centered understandings of regulation. As Pottage has argued in the case of new materialists approaches to domestic law, often our work has been “too indulgent of the lawyer’s sense of the law.”Footnote ⁹⁷ Perhaps we have been caught under Article 38’s specter of sources,Footnote ⁹⁸ in our studies of legal documents, rituals, and courts.

For this reason, the materiality of standards (and the standardization of materiality) remains a relatively unexplored and promising area for further cross-fertilization between new materialist approaches and a transnational law perspective. This chapter, with its incipient exploration of the little-known history of material standards in the history of maritime commerce is only but a snapshot of the many instances the relation between (private) expertise and physical and technical infrastructures colluded to create socio-technical imaginaries of world ordering. If we are, indeed, living in an era of “Private Ordering 2.0,” perhaps it might be helpful to unearth the blueprints of previous hybrid regulatory constellations that preceded the age of the “territorial” and “public” nation-state. In hindsight, such an age might appear as a rather short interlude in a longer span of time marked by “private” and “extraterritorial” forms of global ordering.Footnote ⁹⁹