Chicago Journal of International Law

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It is widely accepted that we are presently struggling to govern the vast expanse of the ocean effectively. This Article finally gets to the real cause of much of the failures of the law of the sea: Westphalian sovereignty. In particular, it evidences that certain features of our obstinate model of public international law—such as sovereign exclusivity, equality, and territoriality—can be linked with a large majority of the governance “gaps” in the global ocean context. It thereby exonerates the falsely accused Grotius’s mare liberum doctrine and flag state regulation, which both still continue to receive an unmerited level of condemnation. This Article also argues that worldwide searches for new integrated systems of ocean management are, in fact, a search for a new paradigm of governance, well-known among lawyers, but yet to be thoroughly analyzed in the law of the sea context, that of transnational law and governance. The study supports this conclusion by showing that two principal features of a transnational law of the sea—in the form of multi-stakeholder participation and multi-level governance—have already proven essential in ameliorating many of the routine weaknesses in our present international system of ocean governance.

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