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.
In international law as in other fields, elegance is the result of careful design, appropriateness for context, and functional performance. David Caron’s interest in thinking systematically about environmental treaty design led him to ponder the policy tools and institutions that can be created by States when they negotiate treaties.2 This essay examines aspects of design for a once-in-a-lifetime opportunity to fashion a new treaty for the high seas, the ocean space that lies more than two hundred nautical miles offshore,3 and which provides more than half of the oxygen we breathe.
To be effective in shaping state conduct, the liberalism and idealism that informs public international law must contend with geopolitical realities and the role of power in the international system. David D. Caron was unafraid to address this dichotomy.1 His work bridged epistemic communities and offered concrete approaches to some of the most vexing international problems.