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In his 2017 Charles N. Brower Lecture on International Dispute Resolution at the Annual Meeting of the American Society of International Law, David Caron considered the role of international adjudicators in dealing with the various social functions that are implicated by courts. Drawing on ideas associated with Martin Shapiro, he noted a fundamental distinction between the functions of courts—which scholars have characterized as including lawmaking, social control, legitimation, and regime construction, among many others—and the task of adjudicators, whose core job is resolving the dispute before them on the basis of the relevant law.
Consistent with his approach to scholarship across the range of his concerns, Caron addressed two things (at least) at once. In the most immediate sense, he was concerned with the emergent role of “a functioning UN Security Council”— which was then (1991–93) seen as an institution bridging the end of the Cold War and the beginning of what George H.W. Bush called the New World Order—a Council acting with “vitality” to counter a variety of threats to international peace and security. Put more directly, Caron was seeking to understand whether the blowback to a Council that “acted in utterly unprecedented ways” would have concrete implications for its functioning.
When Professor Harry Scheiber asked me to address the subject of “institutional arrangements for the ocean,” it struck me that this matter keeps coming back. This does not mean that it is irrelevant or meaningless to continue to address it. Quite the contrary.
Straits are by definition narrow waterways linking seas and the ocean which often provide significant time-saving and cost-cutting navigational routes to commercial shipping. In turn, this navigationally advantageous position can give coastal States the power to exert control over passage of international shipping by imposing regulatory conditions or even by completely closing passage to foreign ships. The topic of straits has taken its place in the great discourses of international law stretching over a period of more than three centuries, dating back to Hugo Grotius in the seventeenth century and well into the twentieth century.