Theory and History of Ocean Boundary-Making

Theory and History of Ocean Boundary-Making

DOUGLAS M. JOHNSTON
Copyright Date: 1988
Pages: 464
https://www.jstor.org/stable/j.ctt130hbtc
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  • Book Info
    Theory and History of Ocean Boundary-Making
    Book Description:

    In this book Douglas Johnston provides a synthesis of all disciplines relevant to any aspect of boundary-making. He outlines the general theory of boundary-making, reviews the modern history of all modes of boundary-making in the ocean, and provides a theoretical framework for the analysis and evaluation of ocean boundary claims, practices, arrangements, and settlements. The author suggests that as bilateral treaty-making continues, significant boundary delimitation patterns will emerge, some of which may prove useful in non-oceanic contexts of boundary-making and natural resource management such as Antarctica, airspace and outerspace, and international lakes and rivers.

    eISBN: 978-0-7735-6148-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Figures
    (pp. vii-viii)
  4. Preface
    (pp. ix-x)
  5. Introduction
    (pp. xi-xiv)

    The purpose of this monograph is twofold: first, to trace the history of all modes of boundary-making in the ocean, and, second, to provide a conceptual framework for the analysis and evaluation of all ocean boundary claims, practices, arrangements, and settlements. Because most thinking about the subject has been derived from experience on land, it will be useful to provide a preliminary review of the conceptual framework for boundary-making in general. It is hoped that in this way potential analogies between land and ocean can be identified and the influences of land-based ideas on ocean boundary-making appraised.

    The problems of...

  6. PART ONE THE GENERAL FRAMEWORK OF BOUNDARY-MAKING
    • CHAPTER ONE Terminology and Basic Concepts
      (pp. 3-11)

      It seems surprising today, but the early theorists of boundary-making did not always make a sharp distinction between a boundary and a frontier. Until the end of the First World War, the two words, at least in the English language, were often used interchangeably.¹ Only in the 1920s did it become common to distinguish between the linear nature of a boundary and the zonal character of a frontier. Today, in normal English usage, the term “boundary” almost invariably refers to a line, and the term “frontier” to a type of boundary zone.²

      In the context of ocean boundary-making, it may...

    • CHAPTER TWO Factors
      (pp. 12-18)

      The objectives of boundary-making can be described in terms of values. The range of human values at stake in the boundary-making process may be expected to vary from one context to another. Six “base values” are likely to have some weight in most contexts of boundary-related issues and to be reflected in the mode of treatment: these are security, self-respect, well-being, wealth, knowledge, and efficiency.

      Securityhas generally been associated with the phenomenon of human territoriality, and therefore with issues of territorial boundary-making. The security argument for territorial boundaries has been made in two distinguishable forms. The first was based...

    • CHAPTER THREE Conceptual Approaches
      (pp. 19-25)

      Even today, boundary-making tends to be as complicated in practice as it is in theory. Complexity arises from the diversity of values and other factors involved in the process. Even in the context of unilateral boundary-making, it is usually necessary to address a wide variety of factual and normative considerations and to reconcile different kinds of bias or saliency reflected over a broad range of expertise. In bilateral boundary-making, the need for compromise often results in a strenuous effort to coordinate various kinds of concepts and data to reduce the issues to a more easily negotiable form.

      Not least, it...

    • CHAPTER FOUR Processes and Outcomes
      (pp. 26-34)

      The chief actors in the bureaucratic process of boundary-making are, of course, government officials, although occasional use is made of professional consultants and academic experts.¹ Government officials are of crucial importance at all four stages of boundary-making (allocation, delimitation, demarcation, and administration), but the range of agencies represented, and the mix of expertise, is likely to vary from stage to stage. In the case of international boundaries, the foreign ministry is likely to be the lead agency during the allocation and delimitation stages, but other agencies possessing surveying, hydrographic, scientific, and administrative expertise are likely to assume primary responsibility in...

    • CHAPTER FIVE Techniques
      (pp. 35-38)

      Most of the literature on boundary-making has focused chiefly on international boundaries, and the discussion has been dominated by political geographers, diplomatic historians, and international lawyers. Because of the structure of their respective disciplines, the geographers have generally given emphasis to the criteria and methods used, the historians to the factors at work, and the lawyers to the principles that were or should have been applied. Geographers often confine their analysis to the text of negotiated boundary settlements, lawyers to the text of adjudicated boundary settlements. For these reasons, neither of these two disciplines has been able to deal fully...

  7. PART TWO THE HISTORY OF OCEAN BOUNDARY-MAKING
    • CHAPTER SIX The Evolution of Ocean Uses and Regimes
      (pp. 41-46)

      The ocean, like airspace and outer space, is much more limited than the land in the variety of human uses it supports. In recent times, however, we have witnessed a dramatic growth and diversification in the uses of the ocean. The introduction of these new uses, like the development of older ones, can be attributed directly to the emergence of new modes of technology.¹ Indeed, technology has not only played the crucial role in the development of ocean resources, but has also created the need for management of the marine environment. Yet, although technology is the key to ocean development...

    • CHAPTER SEVEN Trends in Ocean Zoning
      (pp. 47-60)

      Regime thinking has been the dominant mode of thought about claims to authority in the ocean in the modern era. The outline in the preceding chapter of the emergence of the various ocean regimes is likely to be familiar to most readers. Yet it is crucial to a proper understanding of the public law and administration of the oceans to appreciate the long history and continuous development of zonal thinking. Because this side of the story is less well known, it is important to trace these trends in greater detail.

      The preceding chapter reviewed the emergence of ocean regimes by...

    • CHAPTER EIGHT Trends in Ocean Science and Technology
      (pp. 61-74)

      Boundary-making can be viewed in various ways: as a tribal, local, or even personal necessity; as a political act; as an administrative process; or as an application of juridical principles. The history of boundary-making, therefore, has social, political, legal and other dimensions. In the case of ocean boundary-making, however, the uninhabitability of the marine environment has minimized, if not entirely precluded, the significance of social history; and the political and legal history of maritime boundary-making beyond the familiar limits of coastal and inshore waters has been dependent in large part on the development of ocean technology. Basically, therefore, the history...

    • CHAPTER NINE Determination of Seaward Limits
      (pp. 75-94)

      Our thinking about ocean development and management in the course of the last half-century has been transformed. The change in our pattern of thought is so complete that we have almost forgotten how imprecise ocean boundary-making was until a few decades ago. During the earliest stage in the development of ocean law and policy, there was virtually no need for precision in claims to authority over ocean areas, much less in the criteria and techniques of ocean boundary-making. Today it is technologically possible to bring a high degree of precision to ocean boundary-making. The setting of precise ocean boundaries is...

    • CHAPTER TEN Delineation of Baselines and Closing Lines
      (pp. 95-122)

      Today, in our Age of Precision, it is accepted as elementary that a clear distinction must be drawn between the regime of the territorial sea and that of waters lying immediately adjacent to the shoreline. In legislative and judicial practice there is still some confusion about the relationship between overlapping jurisdictional concepts of the international and “municipal” (that is, national) legal systems.¹ Yet within the context of international law it is now established, as a general proposition, that a “baseline” is a boundary that separates the territorial sea from either the internal or archipelagic waters on the landward side. According...

    • CHAPTER ELEVEN Delimitation of “Lateral” Boundaries
      (pp. 123-222)

      It is important to avoid the general tendency to treat the delimitation of boundaries between neighbouring states as if it were typical of ocean boundary-making. Each of the three kinds of ocean boundary-making – determination, delineation, and delimitation – must be seen to have its own history and to possess its own distinctive characteristics. The delimitation of “lateral” ocean boundaries¹ is distinguishable from the two other kinds of ocean boundary-making by the nature and function of the boundary type, by the processes involved, and by the effects produced.

      In the first place, the lateral boundary, unlike the baseline or the...

  8. PART THREE THE FUNCTIONALIST APPROACH TO OCEAN BOUNDARY-MAKING
    • CHAPTER TWELVE The Theory
      (pp. 225-229)

      Boundary-making is a primordial activity. We have always felt the need to make and maintain boundaries around ourselves, our personal spaces, and the possessions we cherish.¹ At least throughout the history of the modern nation-state, we have institutionalized our instinct for territory by elevating the “official” boundary to the level of a social imperative. Indeed, at the present stage of human development, boundaries in national form have sometimes been allowed to assume a symbolic significance that transcends mere reason or common sense. We purport to be bound to define the limits of national society even as we acknowledge the nonsense...

    • CHAPTER THIRTEEN The Processes
      (pp. 230-238)

      Between 1968 and 1982 – a period of intense global diplomacy – most of the controversy over boundary-making focused on the diplomatic process required for delimitation between neighbouring states¹ and the “monitoring” process required for the determination of the seaward limits of the continental shelf beyond two hundred miles (see the section entitled “The New Law of the Sea” in chapter 9). Yet implicit in the phenomenon of extended jurisdiction is the inevitability of a trend to zoning by national agencies within greatly extended limits of coastal state jurisdiction (see chapter 7), at least in those countries with an ambitious...

    • CHAPTER FOURTEEN The Factors
      (pp. 239-247)

      Through recent developments in state practice, including unclos iii and related law-making diplomacy, international law has gone far towards the goal of universally prescribed seaward limits for all regimes of coastal state jurisdiction, and thus for all zones subsumed under these regimes and spatially coextensive with them. These limits are generally considered to be “established” in customary international law: that is, their validity is not dependent on the bringing into force of the 1982 Convention on the Law of the Sea under the law of treaties. The allocative issue regarding the location of these limits has been resolved in favour...

    • CHAPTER FIFTEEN The Relevance of Ocean Zoning
      (pp. 248-250)

      The history of ocean zoning goes back thousands of years to the earliest practices of regulating mariculture in coastal waters. Traditional zoning practices for other purposes, such as mineral extraction, port administration, fishing, and military security, have been succeeded by the creation of regulatory arrangements in administrative control zones (fiscal and customs control, public health, immigration, environmental protection, and vessel traffic control), and more recently by the establishment of increasingly sophisticated arrangements in resource development and management zones (fisheries, offshore minerals, and coastal zone management).

      From a functionalist perspective, great significance is attributed to these ancient and modern practices in...

    • CHAPTER SIXTEEN The Relevance of Ocean Science and Technology
      (pp. 251-257)

      The functionalist approach to ocean boundary-making begins with the expectation that boundaries at sea, unlike most on land, can be made and maintained in a relatively rational manner. This assumes that there will be a role for science in the treatment of ocean boundary problems, including the design and development of appropriate boundary delimitation settlements and boundary-related arrangements. Functionalist logic tends to assign priority to the “managerial framework” as an intellectual input into ocean boundary-making, and ocean management rests to a large extent on a scientific foundation.¹

      However, there is no assurance that science will invariably be given a central...

    • CHAPTER SEVENTEEN The Range of Choices in Direct Bilateral Diplomacy
      (pp. 258-265)

      Most “lateral” ocean boundaries between neighbouring states are the outcome of bilateral negotiation. Because of the primacy of the principle of agreement in this context of ocean boundary-making, the functionalist approach must incorporate components both of the theory of negotiation and of the theory of treaty-making.

      In theorizing about international negotiation, an initial distinction should be drawn between “symbolic” and “non-symbolic” (or “operational”) diplomacy. The former is devoted to the treatment or modification of attitudes; the latter is concerned with the attainment of specific objectives. Symbolic diplomacy or negotiation draws upon the human faculty for good will, bolstered if possible...

    • CHAPTER EIGHTEEN The Range of Choices in Resort to Intermediation
      (pp. 266-276)

      In the field of international law, two principal modes of adjudication can be distinguished: litigation and arbitration. In most contexts, international litigation involves resort to the International Court of Justice, which is the principal judicial organ of the United Nations. The Court, which now consists of fifteen members, is authorized to deal with disputes submitted to it by applying

      a international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

      b international custom, as evidence of a general practice accepted as law;

      c the general principles of law recognized by civilized nations;

      d subject to the...

    • CHAPTER NINETEEN Considerations in the Treatment of Ocean Boundary Problems
      (pp. 277-284)

      Perhaps the most difficult task in developing the theory of ocean boundary-making is to account for the diversity of mental elements involved in the boundary-making process. In functionalist perspective, ocean boundary-making should be treated both as decision-making and problem-solving. Persons officially authorized to make and maintain ocean boundary settlements and arrangements have to marshal and weigh a wide range of “considerations” to those ends. However difficult it may be, it is important for the theoretician to try to organize the various considerations in a way that seems conducive to the development of a functionalist rationale for ocean boundary-makers.

      This task...

  9. CHAPTER TWENTY Conclusions
    (pp. 285-286)

    The functionalist theory developed in this book represents a contextualist, problem-oriented, and interdisciplinary approach to ocean boundary-making. It is a result of dissatisfaction with traditionalist approaches to boundary-making theory that seem too limited or too limiting because of their dependency on abstraction, their obsession with narrowly technical issues, or their bias toward one particular discipline.

    The functionalist approach as set out here may seem to invite complexity in the name of sophistication. In practice, the drawing of an ocean boundary should often be approached initially as a relatively uncomplicated problem. But as coastal states strive for efficiency in the development...

  10. Notes
    (pp. 287-404)
  11. Bibliography
    (pp. 405-434)
  12. Index
    (pp. 435-445)