I. Introduction
The present issue celebrates the centenary of the Cambridge Law Journal by looking back at some of the pivotal scholarship in its pages. I take up the invitation to read two essays on the law of the sea, both published in the 50th anniversary counterpart to this volume: that is, the jubilee issue of April 1972. The first essay, A Changing International Law of the Sea, was by Robert Jennings, then the Whewell Professor of International Law at Cambridge.Footnote 1 The second, Deep Sea-bed Resources: A Major Challenge, was by Jennings's successor to the Whewell Professorship in 1981, Derek Bowett, then a lecturer in law as well as President of Queens’ College, Cambridge.Footnote 2
My reading draws from these essays resources both for the history of international law and its historiography. The essays offer a window into key 1950s–1970s debates on the development of the law of the sea and blueprints for international law. In showing the centrality of ocean resources to international legal practice and scholarship, they correct the omission of the ocean from international legal historiography of the twentieth century. A textual and sub-textual analysis of these essays, moreover, offers starting points for inquiry into important sites and contexts of law-making, legal education, publication, and practice; and for scrutiny of an “English” tradition of international law.
In Section II, I begin with a focus on the appearance of these essays in the journal's jubilee issue. That issue was an in-house affair, with members of the Cambridge law faculty asked to “take some development or event in their various subjects, which occurred within the fifty-year period, and to weave their papers around that”.Footnote 3 That two of the twelve papers should have addressed the law of the sea – and should have been published in 1972 – was striking evidence of the importance of the law of the sea in public international law, and of the dynamism of this field at the time. It was also interesting for other reasons, which I discuss too. In Section III, I turn to the essays themselves, and suggest three ways of reading them together. I study the ways in which they spoke to, and past, each other. Especially, keeping in view the moment of flux in which the articles appeared, I draw out their particular visions for the future development of international law and the international order.
While Sections II and III of this article focus on the distinctive elements of the two essays – their themes, timing, presence in the CLJ, analyses and visions of international law and the future – Section IV takes the essays as emblematic of a larger “English school” approach to international law. I explore both what is highlighted when such an approach is usually discussed in scholarship and what is glossed over. The essays invite attention to the connections between the international legal academy and practice in the United Kingdom, and to the variations within as well as the coded style and silences of English legal scholarship. They remind us that many of the English school's stances (on the law of the sea and other topics), albeit explained in terms of commitment to the rule of law, balance and pragmatism, have empire and capitalism as their background. I close with the suggestion that further research into the genealogies, dissonances, and shared assumptions of the English school is important and necessary in a time when it is no longer plausible to bracket questions about international law's part in producing a particular kind of politico-economic ordering of the world, with deep implications for distributive and environmental justice.
II. International Law (of the Sea) in the Jubilee Issue
There are at least three reasons why it is interesting that two of the twelve jubilee essays should have been on the law of the sea. First, international law has enjoyed a limited presence on the pages of the CLJ. As Henry Hollond, one of the journal's founders, noted in his contribution to the jubilee issue, the journal had a more “domestic” character from the start, though it had lost something of that character over time.Footnote 4 In fact, the first issue of the CLJ, which he directed attention towards, had included an article on international law as one of the five carried.Footnote 5 Nevertheless, Hollond was right: thereafter, articles on international law topics appeared sporadically, generally touching upon aspects of domestic law.Footnote 6
The reasons for the relative paucity of international law scholarship in the CLJ are not obscure. In addition to the journal's own thrust on domestic law was the in-house publication of a specialist international law journal, the British Yearbook of International Law (BYIL). BYIL began operations in 1920, under the joint editorship of Whewell Professor Alexander Pearce Higgins and Cecil Hurst, and successive Whewell Professors have continued to edit it since. Cambridge academics have also served on its editorial committee and held other contributing positions. BYIL and two specialist quarterlies, the American Journal of International Law (established 1907) and the International and Comparative Law Quarterly (1952Footnote 7) were the leading venues for Anglophone international law scholarship up to the era of the jubilee issue. Since then, international law journals and journals dedicated to specific fields of international law have mushroomed.Footnote 8 International law does of course appear in the CLJ, and routinely so in other forms: book reviews,Footnote 9 and case notes, where contributions from leading British international lawyers have been several and frequent. Even so, I hope this short tour explains why anyone picking up a copy of the jubilee issue might be (pleasantly!) surprised to find that of all the legal fields covered, it is international law that gets two innings.
Second, it is both interesting and instructive that of all the topics within international law, the authors should have written on the law of the sea. The authors chose the law of the sea from among a number of “developments or events” of the previous fifty years that they could have highlighted. Other possibilities included: the United Nations; the League of Nations; the International Court of Justice (ICJ) and its precursor; the codification and development of international law by the International Law Commission (ILC); the Bretton Woods system; the institutionalisation of human rights; institutional experiments relating to decolonisation; concepts of jus cogens and erga omnes norms; or, more generally, the explosion of treaties, the move to institutions, or topics they had previously written on, such as the acquisition of territory in international law,Footnote 10 or self-defence and the use of force.Footnote 11
Of course, the law of the sea was not beyond either's expertise. Bowett, a former naval officer with experience at the UN Office of Legal Affairs during the negotiation of the 1958 Geneva Conventions on the Law of the Sea, had taken it as the topic of his 1967 Melland Schill lectures at Manchester University.Footnote 12 Jennings had published on the law of the sea, and had begun to explore it in the context of practice. Amongst other roles, he acted as a legal advisor to Royal Dutch Shell; he makes multiple appearances in the records of meetings between the British Government and John Blair, head of Shell's legal department, on matters relating to seabed resources.Footnote 13 Nevertheless, the choice to centre the law of the sea in the jubilee issue assumes importance when juxtaposed to current histories of international ordering that look back at the period from post-war to the present.
In these histories, whether produced by lawyers or historians, the law of the sea has only a marginal presence; the focus is usually on the other topics mentioned above.Footnote 14 This absence of the sea and of the ways its surfaces, depths, floors, habitats, and resources have factored into and shaped territorial political economies and world-making efforts of the twentieth century must count as more than a significant historical gap. It is a missed opportunity to “think with the ocean” to unsettle given understandings of space, time, mobility and power.Footnote 15 It also overlooks the important role that (the making of) the law of the sea played as a site of imagination; of conceptual, procedural and institutional innovations; as a theatre for North/ South and East/West conflicts (and conflicts and cooperation within and across those groupings); and as the locus of an extraordinarily rich documentary record.
While the reasons for the absence are not clear, the jubilee essays confirm that such reasons cannot include the suggestion that ocean-related developments were not central to the thinking of the time about significant developments in international law more broadly. Jennings and Bowett make clear that the sea was an area of preoccupation. They also place themselves in unlikely company: third world lawyers were amongst the others emphasising the making of the law of the sea as a critical (and potentially transformative) site for international ordering.Footnote 16
Third, the specific moment in which these papers were written is an interesting one. 1971 and 1972 were rather extraordinary years in the trajectory of the law of the sea. The UN General Assembly decided in December 1970 to convene a major law-making conference from 1973, to address a vast range of oceans issues with a view to adopting a new treaty.Footnote 17 This decision followed from a number of factors: growing discontent with the Geneva Conventions; new questions relating to deep seabed resources; and the need to settle outstanding issues that the League of Nations codification conference (1930) and previous UN conferences (1958 and 1960) had failed to decide.
The Geneva Conventions had taken up novel issues, including rights over the continental shelf, but had remained “an expression of the ‘traditional law of the sea’”, “soon seen by a majority of States as obsolete”.Footnote 18 The 1970 resolution calling for a new conference notes that “political and economic realities, scientific and technological developments of the past decade have accentuated the need for early and progressive development of the law of the sea”, and that many of the present UN members had not been able to participate in the previous conference.Footnote 19
The earlier conferences had not addressed deep seabed resources, but developments through the 1960s brought these resources into serious consideration thereafter. In 1967 – the year of Bowett's Schill lectures – a Maltese proposal suggested that the UN should place the seabed within a new concept of the commons, “the common heritage of mankind”. Under this concept, the extraction of deep seabed resources would be conditioned on the distribution of the benefits of extraction amongst all states, especially developing ones.Footnote 20 On the day that it announced a new law-making conference, the UN General Assembly also formally declared the application of this concept to the seabed lying beyond the (unclearly defined) limits of national jurisdiction.Footnote 21 This obviously generated pressure to decide where the limits of national jurisdiction lay – the Geneva Conventions offering only vague criteria that fed fears that national claims might extend to the midpoint of the ocean.Footnote 22
The problem of unclear limits was even more pressing in relation to the water column, as previous conferences had failed to decide the breadth of the territorial sea and fishery limits. There had followed further questions on navigation, such as rights of passage through straits. Moreover, concerns of oil pollution – heightened by the disastrous shipwreck of SS Torrey Canyon in March 1967Footnote 23 – led states, notably Canada, to contemplate jurisdiction over shipping in areas of the high seas. Although the International Maritime Organization addressed the issue of pollution in part with the conclusion of the 1973 Convention on the Prevention of Marine Pollution, “the controversial issue of nationally-created pollution zones was left aside as one to be considered by the then forthcoming [UN conference]”.Footnote 24
Thus, there was a lot on the agenda for the Third UN Conference on the Law of the Sea (UNCLOS III), and the time between 1970 and 1973 was intended as a preparatory period. To this end, the General Assembly expanded the membership and terms of reference of the Seabed Committee that it had established following the Maltese proposal in 1967, asking it to prepare draft articles and lists of relevant subjects and issues.Footnote 25 These would provide the basis for negotiations at UNCLOS III. However, the Seabed Committee as a preparatory body was quite different from the ILC, which had done the preparatory work for UNCLOS I of 1958. State representatives, rather than legal experts, comprised its members; it was obviously larger; and it was animated by the recognition that the enterprise was that of making new law, rather than codifying or ratifying the old. The proceedings were expressly “political”, with differences of interest prominently on display; agreements on drafts were hard to reach.Footnote 26 It was clear that UNCLOS III would be a tense and exciting affair.Footnote 27
All this meant that 1971 and 1972 were, on the one hand, years of an exhausting wait for the start of something and, on the other hand, rife with possibility about what could take shape at UNCLOS III. The two papers are thus as much (or indeed less) about past developments as they are about future directions, not only of the law of the sea but also of international law.
III. The Jubilee Essays
A. First Reading: A Division of Labour
On a first reading, the two essays appear to reflect an agreed division of labour between their authors, covering different aspects of the law of the sea. Jennings was interested in (what would become of) the freedom of navigation in the face of concerns around pollution, overfishing and the outward creep of coastal jurisdiction. He began by describing the “classical” law of the sea as “relatively simple, certain and stable”, and as balancing closed and open sea doctrines by allocating narrow territorial waters to coastal states, subject to the duty to allow innocent passage of foreign ships, and designating the remainder (the high seas) as the province of particular freedoms available to all states.Footnote 28 The Geneva Conventions codified these arrangements; but also embraced tendencies that worked to unsettle them. Inter alia, they permitted coastal states to make more expansive continental shelf claims, exercise some limited jurisdiction in a zone contiguous to their territorial seas, and draw straight baselines, departing from the geography of the coast, in certain circumstances.Footnote 29 The Geneva Conventions’ failure to specify the breadth of the territorial sea also confirmed that the law no longer provided a clear rule. Jennings conceded that these factors made clear the need for a change in the law.
Nevertheless, he was wistful about the scale on which the change was proposed. Despite the Geneva Conventions’ potential for self-disruption, he considered them “a very successful consolidation of maritime international law” and their influence as “far beyond the strict ambit of the list of actual ratifications, respectable as that list is”.Footnote 30 To him it was “remarkable” that the General Assembly should have proposed a new conference on the law of the sea, moreover one also reopening questions settled by the Geneva Conventions.Footnote 31 The “fact, important as it is”, of changes in the world community, did not quite answer whether it should “seem to invalidate the work of the [ILC]”. Nor was Jennings persuaded of the wisdom of calling a conference “without the benefit of proper scientific preparation” by the ILC.Footnote 32
Having aired these doubts, Jennings turned to discussing the direction in which international law should change. Here, he pressed for a future that embraced the expansion of coastal states’ extraterritorial jurisdiction as a solution to the issues of sustainable fishing and ocean pollution. Jennings found the proposition attractive for several reasons. It hewed most closely to the traditional model of applying and enforcing international law. It recognised developments in state practice. Moreover, it potentially reformulated rights in the language of “custodianship” – language borrowed from Canada – the coastal state not only protecting its own interest, but also stewarding the oceans on behalf of the international community.Footnote 33 Although rather elusive in suggesting the compatibility of state and community interests (particularly in the matter of resource exploitation: which disappears from the discussion after a mention), Jennings was clear that the notion of custodianship would not only qualify jurisdiction exercised in the high seas, but also within territorial waters, and would include protecting free navigation as a common interest.Footnote 34 He envisaged a complementary role for an international organisation in overseeing states’ discharge of their individual rights and custodianship duties.
In contrast to Jennings, Bowett was concerned specifically with seabed resources. His essay began by describing the possibilities that technological changes had brought into view, including extraction of oil and gas at the foot of the continental slope, recovery of phosphorites and metalliferous brines, and of course, the mining of manganese nodules. Although widespread exploitation of these resources remained “a decade or more away”, the problem of establishing a legal regime was “presently acute”. Bowett here echoed the common view of the time that “a legal regime must be established before serious exploration and exploitation of seabed minerals can begin”.Footnote 35 A legal regime was an essential precondition because investments would not be forthcoming without security of tenure over extraction sites; the law of the sea as it then stood, and especially the freedom principle, did not suffice. Thus, while asserting that the future extraction of seabed resources was certain, Bowett recognised that this certainty was premised upon the development of international law in the direction of facilitating it. The questions that remained had to do with the details of the law: the precise limit of national jurisdiction, the exact shape of the regime, and the institutions set up to administer it. Bowett explored these issues by reference to the different proposals then in circulation.
As to the limit of national jurisdiction, Bowett considered that it should be precise, based on the “simpler” criterion of distance from the shore rather than depth of the seabed, but that the 200-mile claim of Latin American states was “excessive”.Footnote 36 As to the shape of the regime, he tended towards the idea of an international institution empowered to grant exploration and exploitation licences directly to contractors (public or private), oversee their activities, and receive and redistribute a percentage of the revenue generated. This was against proposals to delegate the licensing authority to states on the one hand, and proposals to charge the international authority itself with the conduct of mining operations on the other.Footnote 37
On the design of the institutions, Bowett leant towards the US proposal, which envisaged institutions resembling those in existence today. That is: a seabed authority with an assembly, council, secretariat and expert committees (much like the International Seabed Authority); an international seabed boundary review commission (much like the Commission on the Limits of the Continental Shelf); and a tribunal for the settlement of disputes with compulsory jurisdiction over states (much like the International Tribunal for the Law of the Sea).Footnote 38 While finding attractive certain features of an alternative proposal by Elisabeth Mann Borgese, particularly that it would apply the regime to “ocean space” – seabed and seawaters rather than just the seabed – he felt it presented too many complexities to be generally welcome to states.Footnote 39 He especially considered that the suggestion to include representatives of mining corporations, producers and consumers of seabed minerals, fishing organisations, and scientific bodies in the authority's assembly too “radical” a move towards supranationalism.Footnote 40 As in all other matters, Bowett's preference was to steer a middle course: “whilst overt ‘supranationalism’ may have to be avoided, in practice a good deal of supranational authority may have to be conceded.”Footnote 41
So far and read this way, there is not much conversation between the essays, suggesting a lack of engagement between the two scholars and colleagues beyond coordinating their topics to avoid overlaps. But in fact, the essays do speak to (or perhaps at) each other on some significant points, namely, the role of international institutions, and the US trusteeship proposal.
B. Second Reading: Contrasting Views
For Bowett, direct governance of the high seas and deep seabed by an international agency held considerable appeal. Not only did he regard direct licensing and regulation of seabed mining by an international authority a better approach than delegating these functions to states, he also suggested the desirability – if only in the long term – of a single international agency overseeing international “ocean space” as a whole.Footnote 42 Moreover, he regarded the concept of the common heritage of mankind, from which flowed the proposals for international administration, “entirely consistent with the traditional approach to the High Seas as res communis, open to both coastal and landlocked States”. The novelty lay solely in the practical working out of the use of this common heritage:
The practical problem, however, is to decide how this “common heritage” can be enjoyed by all States without resulting in complete anarchy. Obviously, a system of sharing is required, which necessarily involves licensing. This, in turn, involves questions of which authority grants the licences, to whom they may be granted, on what terms and to whom the licence fees and production royalties are payable.Footnote 43
What Bowett regarded as consistent with the traditional approach represented to Jennings “a radical change” in the law of the sea. It is best to let Jennings's own words speak to this:
This is not to say that an international agency could not be granted rights of jurisdiction and control over the high seas, or the sea-bed beyond national jurisdiction; indeed this may well come about in some degree in the reasonably near future. But it is important to realise what a radical change in the law of the high seas has to be accomplished in order to bring this about. For there is at present no notion of “international territory” in international law; indeed the fact that this looks like a contradiction in terms, is a measure of the novelty of it. … It may well be that radical changes in the law of the high seas, and of the seas generally, are desirable; but it will not assist their realisation to underestimate the novelty of creating any kind of quasi-territorial jurisdiction and control for an international institution, and the very broad spectrum of consenting states that would therefore be needed to launch such a change.Footnote 44
It was after framing international jurisdiction and control over the seabed as a radical change that Jennings suggested delegation to the coastal state as the more suitable approach:
At the same time it is very clear that something needs to be done about the present law of the sea, which is quite unequal to the problems of social ordering that confront the international community today. It is no doubt true that a legal system that is defined in terms of “freedoms” is not easily to be transformed into a system of government and regulation of the kind that may be needed. But a problem is not disposed of by showing merely that its solution may prove to be more difficult than might at first sight appear. It is reasonable, therefore, to ask what modifications and changes might be brought about through the medium of national jurisdiction regulated by international law – the traditional means of developing international law – not necessarily as an alternative to the creation of direct jurisdiction for international agencies, but possibly as a complement to such a development. In particular, it is worth asking the question whether the already existing tendency to augment coastal state jurisdiction – a tendency partly at least created by the pressure of modern problems which the orthodox law has failed to solve – could not itself be harnessed to help cope with the new situation.Footnote 45
Jennings did not outright dismiss direct control by an international agency, possibly because it was already clear – not least due to the 1970 General Assembly resolutions – that some form of international administration was inevitable. He presented his proposal to augment powers of the coastal state as complementary. However, his argument effectively sought to limit the scope, both geographical and jurisdictional, of the international organisation's authority, carving out a much greater space for the coastal state. There was, in short, a divergence of views between the papers in relation to the regime each championed as the most appropriate, though, interestingly, each framed its positions as “traditional”, juxtaposed to the “radical” nature of less favoured proposals. The same pattern is apparent in how each engaged with the US proposal in relation to the seabed.
The US trusteeship idea, building on a proposal by US President Richard Nixon, involved coastal states limiting their claims via a 200-metre depth criterion (whereas under the Geneva Conventions, they were entitled to claim beyond the 200-metre depth mark). Coastal states would administer a stretch from the 200-metre point to an agreed limit as an intermediate trusteeship zone. The area beyond would be the international seabed, administered by an international agency. While coastal states could award licences in the trusteeship zone, they would transfer substantial revenue from extraction to the international agency for redistribution amongst all states.Footnote 46
Jennings clearly did not favour the US proposal, taking care to distinguish the US “trusteeship” idea from his own idea of custodianship, describing the former as a “somewhat extreme example”.Footnote 47 He argued that the US proposal required coastal states effectively to renounce their claims to most of the seabed and perform purely the office of trustee – rather than exercising their own proper rights for the benefit of the international community, as would be the case under custodianship. Again, he did not voice direct opposition to the trusteeship idea beyond qualifying it as “extreme”, but was careful to suggest that if adopted, its scope should remain limited: “Whatever usefulness this may have in relation to the resources of part of the sea-bed, this device clearly has no usefulness in relation to problems such as that of securing rights of passage through territorial and internal waters, and through international straits.”Footnote 48
Bowett was more welcoming of the US proposal, describing it as “[p]rima facie … a remarkably generous offer” to surrender areas beyond the 200-meter limit that the US could have claimed as exploitable and therefore its own.Footnote 49 He then examined potential difficulties. These included the cold reception of the proposal within the US itself, with the American Bar Association dismissing it as “retrogressive, impractical, and not in the best interests of the United States”.Footnote 50 There were also questions about the status of concessions already granted by states “in areas which ultimately prove to be outside national jurisdiction”;Footnote 51 and the position of states who chose not to join the new treaty regime.Footnote 52 His discussion suggests that he did not regard any of these as insurmountable; the real issues lay elsewhere – in the very idea of the trusteeship zone. This intermediate zone undercut for him the premise that the US proposal was a major giveaway, or even a clearer way of approaching delimitation:
The objections to this idea are, first, that having eliminated the complexity of the outer-limit of national jurisdiction by substituting a simple 200-metre isobath line, the U.S. proposal now introduces a new boundary between the “trusteeship” area and remainder of the international sea-bed area. This new boundary is not only vague but likely to conform to no standard rule and to lead to disputes between the coastal State and the Sea-bed Boundary Review Commission in each case.
The second, and main, objection is that the “trusteeship” area really gives exclusive control to the coastal State – subject only to the rules to be agreed in the Treaty and to the obligation to pay over to the International Authority between 50 per cent and 66⅔ per cent of the production royalties or payments. … This proposal for “trusteeship” has been widely criticised as being a disguised form of national jurisdiction, totally at variance with the idea of the sea-bed as the “common heritage of mankind”.Footnote 53
Thus, a proposal that was unattractive to Jennings because it divested coastal states of their rights was unattractive to Bowett for the opposite reason: it invested coastal states with control over too large an area of the seabed in the guise of trusteeship. Like Jennings, however, Bowett made an accommodative move, suggesting that “‘trusteeship’ as a temporary phase, say for ten years … would perhaps be more attractive since it would leave the coastal States with responsibility for control over the area most likely to be exploitable and would give the International Authority time to develop its own machinery of control and inspection”.Footnote 54
The divergence of views between Jennings and Bowett was on important and fundamental questions: the shape of the future international order and the place of states and international organisations within it. The essays outline different models of supranational governance, albeit in qualified terms, with both authors deprecating strong advocacy of particular positions. A direct exchange between them on their points of difference would have been of value, not only to those, like myself, who look back at these essays now, but also to their contemporaries, and law students being trained in Britain and indeed other Commonwealth jurisdictions at the time.
As it is however, they only briefly acknowledge each other – Jennings cross-references Bowett's essay in his discussion of the US proposal,Footnote 55 while Bowett references another essay by Jennings in his discussion of the appropriate reading of the Geneva Conventions, juxtaposing Jennings's “more liberal view” of the continental shelf to L.F.E. Goldie's restrictive one.Footnote 56 These are but passing engagements.
C. Third Reading: Speaking Past
It is of course worth considering that, at the time of writing, Jennings and Bowett may have been preoccupied with separate ongoing engagements.
Jennings was advising Shell on developments relating to the law of the sea and their implications for Shell's access to submarine fossil fuels. The account of a meeting in January 1971 between Shell and the British Foreign and Commonwealth Office (FCO) suggests that Shell (or at least its legal departmentFootnote 57) was plainly uncomfortable with the US proposal. Jennings, present at this meeting, agreed to author an opinion on the proposal's implications for the rights of coastal states, including in the event of their not joining, or withdrawing from, the relevant treaties. That he articulated his support for expansive coastal states’ rights in this context is all the more apparent from a report authored by John Blair of Shell later that year.Footnote 58 Blair reviewed the issues that had come up at the Seabed Committee, finding promise in a Venezuelan proposal to give coastal states exclusive rights for a 200-mile distance or 200-meter depth, whichever was further seaward. He also discussed the Canadian custodianship idea making similar points as Jennings, albeit with less enthusiasm for what custodianship might imply vis-à-vis the limitation of coastal states’ rights. Reading Jennings's essay alongside archival materials on the Shell–FCO discussions makes it possible to contextualise Jennings as seeking both to further oil companies’ preference for extended coastal state jurisdiction, and to reformulate coastal states’ rights as matched by accompanying duties (seizing upon the arguments afforded by Canada to suggest the complementarity of national and community interests).
A similar contextualisation of Bowett indicates that his focus too was elsewhere. In his Schill lectures, Bowett had offered a characterisation of what he saw as the key debate on the law of the sea. The opposition he highlighted was between Myers McDougal, founder of the “New Haven school” of international law, and Max Sorenson, who served as judge ad hoc of the ICJ for the North Sea Continental Shelf cases. McDougal regarded it both possible and necessary to identify and prioritise the “common interest” of states in the “use and enjoyment” of the oceans above individual interests; while Sorenson considered it “the function of law … to strike an acceptable balance between divergent interests” without elevating some interests as those of the international community as a whole.Footnote 59 Bowett favoured McDougal's view, suggesting that distinctions could be drawn between purely national and community interests although the categories were dynamic, and that the law must move towards protecting the latter.Footnote 60 Bowett's essay may well represent the same enterprise that characterised his book: evaluating conflicting interests and proposed solutions by reference to community interests. That is, the debate he was joining was with those whom he regarded as favouring a value-free settlement of conflicting interests rather than those like Jennings who seemed to accept the idea of community interests, even if they favoured different paths to the realisation of these interests.
Besides writing with respect to different, if overlapping, conversations, Jennings and Bowett may have omitted to notice their own debate for another reason: the similarities in their styles and assumptions. These similarities, which I will examine in the next section, are what raise the question of the existence and defining features of an “English school”. That there do exist differences within the framework of these similarities makes it all the more unfortunate that they pass unexamined; for they provide the texture and clarify the coordinates of this school, and illuminate the futures it regarded as falling within the acceptable range.
IV. An English School?
Albeit in a fragmentary way, international law literature speaks to the existence of an “English” (though sometimes glossed as British or Commonwealth or Anglo-AmericanFootnote 61) tradition of international law. References to this tradition are made, for example, in the British Institute of International and Comparative Law's British Influences on International Law 1915–2015.Footnote 62 Rosalyn Higgins sets the ball rolling:
This project has, of course, made me ponder if there is any such thing as a “British Approach,” to international law. I think there is a tradition of the legal history of international law, and – while the contemporary and hot topics of course attract attention – a serious interest in other, ongoing but less fashionable questions of international law. Breadth and originality of scholarship may properly be regarded as British characteristics. So far as approaches to international law are concerned, these have changed over time. In the 70's British international law was very rule-based: the whys, hows and wherefores were regarded as evidence of being tainted by American influences.Footnote 63
However, she notes, the insular element is in decline: “the internet and travel between countries has happily put an end to rigidity as a national characteristic. French, German, American and British authors today feel very comfortable intellectually with each other.”Footnote 64 Stephen Samuel argues “there is a benefit, with certain cautions, in carrying a view that British international lawyers do orientate themselves towards certain ideals”.Footnote 65 These emerge as a leaning towards pragmatism and “a sensibility that eschews theory”; positivism; and the placing of legal rectitude above the Government's political preferences (as in case of the Iraq War).Footnote 66 Philippe Sands and Arman Sarvarian use a review of leading British figures to “identify a signature characteristic: a culturally unique approach to the idea of the ‘rule of law’, balancing principle, pragmatism and efficiency”. From crisp character sketches – Gerald Fitzmaurice,Footnote 67 Humphrey Waldock,Footnote 68 Jennings,Footnote 69 Rosalyn Higgins,Footnote 70 Bowett,Footnote 71 Ian Brownlie,Footnote 72 and HerschFootnote 73 and Eli LauterpachtFootnote 74 – they build a picture of widely (if not universallyFootnote 75) shared attributes. They summarise these as “commitment to the ideal of the rule of law”; “evident dedication to work ethic, meticulousness and professional competence”; “a premium on a highly pragmatic approach preferring practicality over theoretical integrity”.Footnote 76
This presentation of the English tradition naturally leads to further questions. Recent episodes like the Iraq War are difficult to assimilate into a simple account of British ideals.Footnote 77 One might wonder too if there is anything distinctively English (or British) about the identified attributes – even the allergy to theory is not confined to English international lawyers. Here, however, I would like to think with some different questions: not whether the qualities are distinctively English, but how these qualities (or claim to them) have been deployed. In what follows, taking the jubilee essays as emblematic, I foreground a few associations of the English tradition, including some uncomfortable ones, and suggest possible lines for future research. The reason to do so, warts and all, is the influence of that tradition upon international law.
While English lawyers were not, of course, the sole determinants of the law of the sea, or of international law more broadly, their influence permeated much inter- and post-war law-making, in addition to predominating the long 19th century. As British Influences shows, they shaped legal regimes not only in the matter of specific policies, but also in terms of overall approaches and the design of secondary rules. There is surprisingly little by way of specific exploration of the politics of their contributions, and, especially, the structural underpinnings of their famed attributes.Footnote 78 Such an exploration would not only illuminate present legal regimes, but also, I hope, strengthen reflection about all that is carried forward when the style and posture of the English tradition is assumed in the present day.
The jubilee essays offer a handy resource in this respect. Their authors count among typical representatives of the English tradition. They are also, by their biographies, men associated both with the high noon of the tradition and its (still bright) dusk. For instance we might see in Bowett's endorsement of McDougal's view, or Jennings’ appreciation for the concept (if not the jurisgenerativity) of “custodianship”, the coming openness to other intellectual approaches that Rosalyn Higgins describes. The essays are written along the arc of that transition, around the midpoints of both men's careers. They are unexceptional rather than standout examples of each of their scholarships, yet written for a context that invited them to take a reflective approach.Footnote 79 Moreover, as seen above, the essays reveal differences between the two scholars – suggesting the range of possible associations of the English tradition – as well as a curiously similar style. Most striking here is the claim of moderation that suffuses both, as they deploy adjectives like “radical”, “shrill” and “excessive” against ideas they do not support, even as they avoid appearing to dismiss them outright. In the following, I thus draw liberally upon the essays, including their assertions, style and silences, to suggest some directions for further work.
A. The Place of the School in the English Tradition
Firstly, then, it is worth examining the place of the “school” within the English tradition.Footnote 80 The tradition is commonly analysed in the context of practice, with the academy not seen as a distinct theatre of its operation. This seems right at one level, for it reflects the historical relationship between the two. In the nineteenth and early twentieth centuries, the international law academy was both small and marginal to practice.Footnote 81 Although Britain was a major participant in international conferences, treaties and organisations, and routinely dealt with international legal questions in administering its vast empire, the British Government did not regard academic training in international law a necessary qualification. D.H.N. Johnson recollects Pearce Higgins's lament about the “scarcely veiled contempt ‘with which international law was viewed by practising members of the Bar and the legal profession in general’”:
“‘In England it would seem,’ he said, ‘that a knowledge of international law is not considered an essential qualification even for those who are appointed to posts where questions which involve its application are of daily occurrence.’ He let it be known that he was referring to the Foreign Office, the Diplomatic Service and the Service Departments.”Footnote 82
Pearce Higgins worked with Cecil Hurst, then Legal Adviser to the Foreign Office, to strengthen links between practitioners and academics; BYIL was one such endeavour. Their successors, Arnold McNair and Hersch Lauterpacht (Whewell Professors), and William Malkin and Eric Beckett (Legal Advisers), continued these efforts.Footnote 83 Due to their efforts, and particularly the influence of what has been dubbed the McNair Group,Footnote 84 academia and practice were well integrated by the time Jennings and Bowett wrote their jubilee essays, including in the authors’ own individual careers. The process of making international law “respectable” in the eyes of practitioners shaped the academy's pragmatic, anti-theory orientation.Footnote 85
Nevertheless, it is important not to overlook the role that the academy played in disseminating the English tradition, in discursively reinforcing it and in recruiting new members. The literature offers only brief glimpses of the academic resources, processes, activities and people that were instrumental in building the tradition.Footnote 86 This is a striking gap particularly as teaching, students, and the university environment are the themes that many emphasise when invited to look back on their careers and contributions. In an interview with Antonio Cassese, Jennings, for instance, speaks eloquently about all three, placing teaching at the top of his scholarly contributions, proudly recalling that his students became “Lord Chief Justices or Attorney-Generals, or Ministers of Justice, or even Prime Ministers”, and noting that “governments generally grossly underestimate the power of teachers”.Footnote 87 Although refusing to acknowledge a “Jennings school”, he refers multiple times to an English one and to the importance to it of the university and its academic traditions.Footnote 88 To him, it is McNair's own education and teaching that make him part of the English school despite his Scottish background; whereas Lauterpacht was not fully part of the English school, not only because he was trained abroad, but also because “I think he never wholly understood the University and Colleges, and how the system worked”.Footnote 89 Bowett's interview with Lesley Dingle is peppered with evaluations of various people's teaching abilities; it also reveals that a chunk of his writing was in order to produce reading materials for law students.Footnote 90
There are several trails worth pursuing in building a thicker account of the English school. These include of course curriculum, pedagogy, and the relationship of teaching to scholarly approach: what did centres like Cambridge, Oxford, and the University of London teach as international law; (how) did figures like Lauterpacht sublimate their theoretical leanings in the classroom; how did a figure like Bowett come to place his work in the context of New Haven thinking? It is also worth investigating the material resources, including the endowment of teaching posts, international law libraries and scholarships. This last apparently did not always produce the desired outcome: Pearce Higgins notes that the Whewell Scholarship, awarded at Cambridge since 1868 “for the encouragement of the study of international law”, had mostly served as a “valuable prize for a clever student, who, after winning it, ceased to take any further interest in the subject, or, at any rate, gave no further evidence of doing anything to advance the study of International Law by making any contributions to its literature”.Footnote 91
A prosopography of the figures involved, and especially the development and coordinates of circles of influence like the McNair Group, might take as a point of departure the more diverse backgrounds of the group members as compared to their Foreign Office contemporaries. The latter were invariably educated in public schools (e.g. Malkin, Beckett, Fitzmaurice, William Evans, James Fawcett, Joyce Gutteridge and others; the Canadian-educated Francis Vallat was an exception). Many of the former went to state schools (e.g. Jennings, Bowett, Wilfred Jenks, as also Rosalyn Higgins); took their undergraduate degree outside of Cambridge, Oxford or the LSE (Hersch Lauterpacht, Clive Parry, Gillian White); Lauterpacht was also an émigré escaping anti-Semitic persecution. Although the English tradition is viewed generally in terms of its striking uniformities – mostly male, mostly white – these social differences are worth investigating for how they might illuminate different routes to academic centres such as Cambridge, and the impact of those centres themselves upon subsequent careers, and the forging of positions on various international legal questions.Footnote 92
B. The View from Nowhere and Its Blind Spots
Second, future work might explore the influence of empire in shaping both the tradition and the school. This should really be a trite point by now given that Britain's imperial eminence was so clearly the backdrop for the increasing legal workload of the Foreign Office, to the point where the arrangements for legal advice that had been in place (especially ad hoc following the dissolution of Doctors’ Commons in 1857) no longer sufficed.Footnote 93 Following the appointment of Julian Pauncefote from the Colonial Legal Service as a legal Assistant Secretary in 1876, a full-time Legal Adviser was appointed in 1886 (Edward Davidson), with positions of first and second assistants (Hurst, 1902; Malkin, 1914) being added as the volume of work increased. With jumps in workload during the inter-war period, and then with post-war arrangements and decolonisation, the numbers increased to approximately 17 by 1968, when the Foreign Office was amalgamated into the new FCO (from 2020, the Foreign, Commonwealth and Development Office). In 2019, the FCO Legal Directorate comprised about 70 lawyers.
It was its imperial standing and questions arising from its dealings with, and in relation to, its colonial territories that brought Britain to (pivotal roles at) major international conferences, shaped its positions on key issues, and “meant that legal principles emanating from [it] reached far into the territories it occupied”.Footnote 94 Empire was the context of origin for much of what we take as international law; and also the impetus behind the embrace of the idea of international law as virtuous, as progressive, liberal, and universal in its promise of equality (albeit deferred on the condition of sufficient “civilisation”).Footnote 95 This embrace could serve multiple ends for imperial international lawyers: it could justify empire as a means to spread the rule of law, permit distance from its violence and misery, and allow those so inclined the sense – and occasionally the resources – of being its conscience-keepers.Footnote 96 The style of the English tradition was well suited to these ends: the tones of objectivity, the claim, always, of siding with moderation against “extreme” or “radical” views, of abiding by legal rectitude. Rectitude, in turn, was defined by way of a convenient mixture of pragmatism and positivism,Footnote 97 thus eliding evaluation by both standards. This style served to cloak imperial preference as common sense and interest as virtue, and to dismiss anti-imperial stances as unsophisticated or disorderly.Footnote 98
Jennings and Bowett did not have to be card-carrying imperialists (and they were not) in order to perpetuate the style and its politics in the post-war era. In fact, the style so fully internalises its underpinning assumptions that it appears as one without an accompanying worldview, “the view from nowhere”, rather than from a particular vantage point.Footnote 99 Nevertheless, it comes with telling blind spots, one of which is the failure to engage with third world subjectivity in any serious way. We see that at work in the jubilee essays. While the essays recognise that decolonisation constitutes the context for change in the law of the sea, new states receive distorted consideration. The essays see them as capable of contributing state practice, but not as the source of ideas or policies. Thus, the proposals that Jennings takes up for consideration are those by Canada and the US, and in Bowett's case, by the US and Borgese. The lack of engagement with third world positions and arguments is most obvious in Bowett's discussion of developing states’ interests in deep seabed mining. Not only does he turn solely to English voices (the Bishop of Norwich and Lord Ritchie-Calder) to answer the question of policies that would be in the interests of “less-developed” states, he also then unsurprisingly misreads what these states were demanding. Thus, he suggests that “smaller” or “underdeveloped” states only seek a fair economic share and need not be “burden[ed]” with the responsibility of supervising licences;Footnote 100 missing the point that developing states were precisely seeking an active role in both the conduct and the administration of seabed mining.
Given the links between the academy and Foreign Office practice, that practice and empire, and empire and international law, it is surprising that English school is not much analysed through this lens beyond individuals like Lauterpacht. Especially, its operations in the post-war era via figures like Jennings and Bowett (and many others) receive little attention. Not only would a scrutiny of their work as scholars and practitioners shine a light on the imperial legacies informing the secondary rules, judicial decisions and primary regimes shaped by British influences in the so-called postcolonial period; it would also offer up useful dissonances. These include, for example, where a figure's conduct deviates from the tradition's norms, such as Jennings’ honourable refusal to advise apartheid South Africa despite the cab-rank rule;Footnote 101 or a debate makes visible multiple extant doctrinal understandings, such as the differences between Jennings and Bowett highlighted earlier.Footnote 102 Such dissonances strip away the illusion of a view from nowhere, and provide an entry point into the underlying politics of the doctrinal views held by figures within the tradition, as well as the tradition's internal complexity, its intellectual genealogies and adaptations to the expectations of changing times.
C. Blueprints for the Future
It is perhaps in its blueprints for the future of international law and international order that the English school offers the most material for exploring its ideology. There is one line of analysis that highlights a belief in “incrementalism” as a hallmark of the tradition,Footnote 103 and it is certainly true in the example of the jubilee essays that “radical” changes are regarded with disfavour. Yet English lawyers have “midwifed” the creation of new rules and institutions on several occasions. In the context of the law of the sea, for instance, English lawyers were early champions of the continental shelf doctrine, perceiving quickly that the principle of the freedom of the sea would not suit the growing interest in oil extraction.Footnote 104 They explained the case for separating seabed and seawater regimes, and later played an influential role in the division of the ocean into multiple spatial and functional zones – a sea change from the legal imaginary of a uniform ocean (with exceptional particular regimes), that had prevailed for three centuries. English contributions to international law have included both the fostering of major changes and the conservation of old rules, principles and approaches. Two inquiries follow from this. Firstly, when and in what contexts has the choice been for the one rather than the other? Secondly, why and in what contexts does the accompanying discourse often shy away from acknowledging even major legal innovations as “radical”?
A mapping of English contributions in these terms, that is, of blueprints for legal development and whether they lean in the direction of innovation or conservation, and how they present what is advocated in the accompanying discourse, would be a difficult exercise, but it could be a revealing one. Such an exercise might confirm that English preferences for innovation and conservation tend to reinscribe capitalism. This would be true for example not only of the continental shelf doctrine but also of the version of the doctrine that English lawyers preferred. Thus, against early suggestions for “internationalisation” of oil extraction, or treating the seabed as part of – not separate from – the sea, English lawyers argued for enclosure of the seabed within national jurisdiction as the most feasible approach from the perspective of exploiting valuable natural resources (and favoured by oil companies).Footnote 105
The exercise of national jurisdiction however became suspect where it could impede capitalist interests. The nationalisation of the Anglo-Iranian Oil Company by Iran in 1951 led the UK to bring a case before the ICJ (Beckett, Hersch Lauterpacht, Waldock, Johnson all appearing for the UK) and orchestrate a coup against the Iranian Prime Minister Mohammad Mossadegh, and English lawyers to examine the ways in which international law could regulate contracts between states and corporations.Footnote 106 Similarly, demands for redistribution, such as by way of the movement for a new international economic order, met with some acknowledgement that improvements were necessary to ameliorate the real inequalities between developed and developing states, but also with the characterisation of third world demands as “clamorous”, “shrill”, “crusading slogans and shopping lists of desiderata”, reminders that General Assembly resolutions – the vehicles for such demands – were non-binding, and critical assessment of preferred third world forums such as the UN Conference on Trade and Development.Footnote 107 The preference was for arrangements that would stabilise trade and investment, such as the Lome Convention of 1975. Likewise, in the case of the deep seabed, regimes that would facilitate corporations’ access to its resources were preferred over more far-reaching proposals aiming to construct the political economy of seabed mining differently.Footnote 108
Yet if capitalism might be the bottom-line in the English school's blueprints and responses, two potentially interruptive factors deserve closer analysis. The first is the school's affinity to proceduralism. While in some instances English lawyers appear to have wielded procedure simply as a policy tool – the notable example is of course South West Africa Footnote 109 – in other cases, such as Anglo Iranian Oil Company, fidelity to procedural correctness in matters such as finding jurisdiction has led them to support outcomes at variance with their own policy preferences.Footnote 110 It would be naïve to imagine the English school as always placing procedural correctness over other considerations, or as not seeking to instrumentalise procedure in many instances, but equally it would be wrong to dismiss the workings upon it of what Martti Koskenniemi has called a “culture of formalism”.Footnote 111 A closer analysis might reveal more precisely the intersections – both supportive and conflictual – between that culture of formalism and the ideology of capitalism in the school's writings.Footnote 112
The second factor is the school's environmental leanings. In both jubilee essays, it is environmental considerations (oil pollution for Jennings; the connected ecosystems of the ocean for Bowett) that lead the authors to question, though not abandon, their preference for more modest, extraction- and commerce-friendly regimes. Thus, Jennings flirts with the idea, but not the jurisgenerativity of custodianship, and Bowett with the idea of an “ocean space” rather than seabed regime. The question of course is how far either might have been prepared to go if he had not found it as easy to assume that protection of the marine environment could be reconciled with exploitation of the sea's resources (an assumption placed under increasing strain by evidence of the ocean's growing fragility). Would they have been prepared to reconsider the relationships between extraction, distribution and environmental protection, so far as to support the alternative (non-competitive; public sector) models recommended by third world states, rather than calcifying into law the preferences of corporations?Footnote 113 This is not just an abstract invitation to hypothetical thinking; the possibilities of remaking those relationships is the question that faces states and international lawyers today in the context of fresh law-making vis-à-vis the sea's marine genetic and mineral resources. More broadly, the complex history of the place held by the environment in English international legal thought and practice – complete with trappings of romanticism, colonialism and conservationism – and its intersections with capitalist ideology, deserve further study.Footnote 114
V. Until the Next Jubilee
The directions of inquiry I have suggested above are those inspired by the jubilee essays and it follows that they do not exhaust the ways in which one might unpack the English school. Nevertheless, they present possibilities of contending with the school's ideology and influence, and bring into view important and neglected questions.Footnote 115 These include whether there are differences in approach within the school; and if so, what work are these differences, as well as the overarching similarities of style doing in the world – then, and now. The school's connections to empire, capitalism and conservatism are worth serious engagement in understanding all that is packed into the identification of pragmatism, moderation, professionalism and theory scepticism as its core attributes. And so are the reinforcing as well as potentially interruptive workings of the school's proceduralism, and environmentalism.
Inviting detailed consideration of the school and its legacies, these directions of inquiry also serve the further critical purpose of “provincialising” the English school as a locus of power in international law, and within Britain. That is, by calling attention to the school's associations and its social world, they also seek to locate it in its particular venues, networks and contexts. Such a move not only highlights the political affinities and class identities that have underpinned the tradition, it also permits a sharper focus on the other outlooks and genealogies that are erased when a national tradition is defined by the practices of a select group. After all, not only were there other schools of international law in Britain (such as the Scottish), there were also important engagements that are not usually identified as pertaining to international law. We might include here feminist, anticolonial and left movements that shaped international law “from below”;Footnote 116 “radical” transnational lawyering as exemplified in the careers of D.N. Pritt (Beckett and Fitzmaurice were pupils) and many UK-trained Asian and African lawyers;Footnote 117 and scholarly approaches such as the law-in-context movement pioneered at the University of Warwick by William Twining, Yash Ghai and others, building on intellectual legacies from Dar es Salaam, Accra and other Commonwealth law schools.Footnote 118
These questions also bring up the relationship of the English tradition to others in Europe and in the western world more broadly. The questions asked in relation to the former here are of course applicable to the others too; indeed in being used to identify the contours of English tradition they already implicitly invite assessment of its distinctiveness from those other traditions. While empire and capitalism are a shared background, there may be genuine differences to explore in these traditions’ sociologies of international law, self-definitions and particular languages of justification, and the relationships that their representative schools have borne with heterodox approaches.Footnote 119 As well as the commonalities and borrowings, the differences do some work in illuminating both range and limits of international law's politico-economic associations.
The project of rethinking international law's boundaries and foundations has by now acquired several traditions in its own right,Footnote 120 but has proceeded in Britain on parallel tracks with the mainstream project of “doing” international law while bracketing its politics. However, the coming world of the next half century, tending more to the imagination of J.G. Ballard than to the extractive certainties driving Jennings and Bowett's blueprints for international law's future development, makes the crossing of those tracks both urgent and inevitable. The inquiries suggested in this essay, revealing not least the elements of dissonance and dynamism even within the archetypical mainstream project of the English school, remind us that there are multiple ways in which it is available to us to live and work as international lawyers.
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