Gunther Teubner, Networks as Connected Contracts, edited by Hugh Collins,translated by Michelle Everson, Oxford: Hart Publishing, 2011, 301 pp, hb £50.00.
Two recently published collections of papers – one co-edited by Marc Amstutzand Gunther Teubner (Networks: Legal Issues of Multilateral Contracts, Hart,2009) the other by Fabrizio Cafaggi (Contractual Networks, Inter-Firm Coope-ration and Economic Growth, Edward Elgar, 2011) – are evidence of a growingEuropean interest in the regulation of contractual networks. However, much ofthe inspiration for this interest can be traced to GuntherTeubner’s seminal work,Networks as Connected Contracts, first published (in German) in 2004, but nowmade available to an English-speaking readership. For this, we are indebted toMichelle Everson who undertook the translation, to both the Modern Law Reviewand the publishers who gave financial support to the project, and to Hugh Collinswho introduces the book with an invaluable 72 page essay. For anyone wantingto get to grips with contractual networks, this impressive book is essentialreading.
Before we run with networks, we need to walk a little. Our first law schoolsteps, it will be recalled, were (and still are) influenced by the classical framing ofa contract as, and only as, a reciprocal exchange between two parties,A and B. Byand large, the classical law is not interested in the particular identities (or marketstatus) of A and B; they are just transactional ciphers. Nor is the classical lawinterested in whether A or B has functionally related contracts with C, D, or E.Indeed, on some readings, this is an understatement, the classical view being (inIan Macneil’s words) that, ‘A and B had better be the only parties; [because]adding C, D, and other such riffraff is bound to create complicated relationsoutside the transaction’.While the modern law has developed a quite explicit andintense interest in the former question (that is, in whether A and B are contract-ing in the course of a business, as consumers,or in a private capacity), there is littlesuch interest in whether the contract between A and B is part of a connected set(or network). However, once we start thinking about networks (like the prover-bial hammer and nails),we see them everywhere.We see them in old competitioncases such as Clarke v Earl of Dunraven:The Satanita [1897] AC 59 (where therewere potentially some difficulties in constructing or inferring contractual rela-tionships between the protagonists); in cases of consumer financing such as OFTv LloydsTSB Bank plc [2007] UKHL 48 (in which the House of Lords held thatthe protection given to credit card holders by section 75(1) of the ConsumerCredit Act 1974 extends to more complex modern credit networks as well as totransactions made with overseas suppliers); and, in a myriad of commercial cases– for example, in franchising, in international sales that are underwritten by lettersof credit, in supply and distribution, in construction, and in carriage (famously,as in New Zealand Shipping Company Ltd v A.M. Satterthwaite & Co Ltd: TheEurymedon [1975] AC 154). The patterns of connection might vary: there arehubs and spokes; chains and strings; clusters and groups; and so on – but the point
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is that, in all these cases, the transactions are wired for connection; they arenetworked. That said, why should the law take any notice of such contractualnetworks?
To return to the classical mode, the significance of the discrete exchangebetween A and B is that it serves to modify the pre-contractual rights andresponsibilities of the parties.Prior to the exchange,A was not required to pay thenow agreed price and neither was B required to supply the now agreed goods orservices. On both sides, the contract modifies the parties’ understanding of theirmutual rights and responsibilities; with the contract in place, the parties’ expec-tations are modified; and, as the modern law would have it, we regard thoseexpectations as reasonable because the new responsibilities were freely assumed.Now, here is the critical question: where the contract between A and B is part ofa network of connected contracts,does this fact further modify the understandingthat the parties have of their respective rights and responsibilities? Or, to put thismore provocatively, does participation in a network modify, or even control, theparties’ reasonable expectations? On the face of it, it does – otherwise,why wouldwe bend over backwards (employing implicit offers and acceptances, collateralcontracts, agency,and goodness knows what else) to hold that the parties in Clarkev Dunraven were bound by the competition rules, that the protection afforded bysection 75(1) of the Consumer Credit Act 1974 continues to apply where creditcards are used by on-line shoppers, and that the stevedores in The Eurymedon wereentitled to the benefit of the limitations written in to the main carriage contract?However, if it is only by massaging the classical doctrinal features that the law isable to give effect to transactional expectations that it independently judges to bereasonable, this invites another question, namely: would the law operate moresatisfactorily if a doctrine of connected contracts, or contracts with networkeffects, or something of this kind, were to be adopted? Clearly, this is a questionthat we should put on hold until we have reviewed Teubner’s thoughts on theparallel doctrinal issue that has been debated in Germany.
Introducing his six-chapter book, Teubner declares that the focus of hisdiscussion is ‘on the appropriate legal regulation of business networks, virtualenterprises, just-in-time systems and franchise chains that are normally concludedin the form of bilateral contracts, but at the same time give effect to multilateral(legal) effects’ (73). Characteristically, these business networks ‘pursue commonprojects making use of co-operation between autonomous firms’ (92); and, timeand again,Teubner returns to the point that an appropriate legal response mustreflect the various tensions (or institutionalised contradictions) that drive thesenetworks – for example, the tension between hierarchy (organisation) andmarket (contract), between common purpose and individual interest, betweenco-operation, and competition, and so on.So, in a typical passage,Teubner writes:
Thus, the legal characterisation of networks needs to be reformulated.The ambigu-ities, contradictions, collisions and paradoxes that constantly accompany the questionof contract or organisation are not to be considered ‘errors of analysis’, but are ratherto be greeted as mirrors of the productive aspects of networking.They should thusnever be sacrificed to a contradiction-free legal construct by means of which lawdenies the existence of the contradictory expectations in favour of an internally
consistent institution. In contrast to the treasured legal ability to furnish turbulent lifewith sufficient clarity, reliability and precision, legal doctrine in this context needs toproduce ambiguous concepts that not only encompass contradiction[s], but that evencultivate and intensify them. (127)
Although the regulatory challenge is to reflect and retain this discordance in alegal form,Teubner signals that it is not an option simply to juridify the socialscientists’ concept of a network, and nor ‘should the efficiency principle used byeconomists to characterise networks as a market/hierarchy hybrid be permittedto serve as a legal norm for networks’ (75). Instead, an appropriate legal response,having drawn on the social sciences to identify the opportunities and riskspresented by networks, should ‘evolve concepts, norms and principles out of itsown conceptual tradition, which might then be appropriate as grounded legalsolutions to novel problems of co-ordination and liability’ (75).
At once, it is apparent that, in Germany too,‘ingenious judges’, acting with the‘flimsiest’ of legal support, have been able to respond to network disputes in waysthat are congruent with reasonable expectations – a sure sign,Teubner observes,that ‘doctrinal reasoning must be comprehensively reviewed’ (82). In place ofsuch ad hoc judicial reaction, there needs to be a new regulatory approach tonetworks, not so much aimed at directing or channelling the behaviour of theparties but rather supporting ‘stable network expectations by giving them sym-bolic re-statement in cases where concrete network behaviour contradicts them’(103).Three chapters into the work,Teubner contends that ‘the comprehensivedoctrinal treatment of networks can only be founded upon a “law of contractualorganisation” that incorporates “organisational” elements, that is, relational andmultilateral elements, within the category of contract law’ (145); and it soonbecomes clear that, with some refinement, the notion of connected contracts(exemplified inArticle 358 of the BGB) isTeubner’s favoured regulatory responseto networks.
As we have seen, however, there are many examples of contracts that areconnected to one another. If connected contracts are here, there, and everywhere,how is the legally recognised network proper to be isolated and identified?According toTeubner, connected contracts will be recognised where, in additionto the standard requirements for a bilateral contract, the following three featuresare present:
(1) Mutual references within the bilateral contracts to one another, either withinthe explicit promises or within implicit contractual practice (‘multi-dimensionality’).
(2) A substantive relationship with the connected contracts’ common project(‘network purpose’).
(3) A legally effective and close co-operative relationship between associatedmembers (‘economic unity’). (158)
So, for example, a ‘franchising system will only be given legal recognition as aconnected contract when the bilateral contracts establish a binding reference tothe entire distributive system, either by an explicit reference within the contractor by an implicit reference in contractual practice’ (159).With the test for the
existence of a network in place, it remains to articulate the relevant legalconsequences (i) as between the parties to the network and (ii) as betweennetwork parties and those non-network parties with whom they contract.Teubner deals with the former, internal, issues in Chapters 4 and 5, and with thelatter, external, issues in Chapter 6.Throughout,Teubner insists that responsibili-ties and remedies must be developed in that dissonant way that reflects thetensions, contradictions, and paradoxes of networks.
Chapter 4 opens with the much discussed Apollo (Optik) case where anumber of German courts were faced with fixing the extent of the franchisor’sresponsibility to pass on to franchisees the benefit of discounts negotiated by theformer with suppliers to the network.The Federal High Court eventually ruledin favour of the clamant franchisees, holding that multilateral connectivity withinthe franchise may create an obligation to pass on advantages to members of thenetwork.Approving this outcome,Teubner remarks that it is no answer to resolvethe dispute in either a one-sided market way (so that the standard contracts rule)or in a one-sided hierarchical (corporate) way: such strategies inappropriately‘force a choice in favour of one of the contradictory business orientations,consigning the other to the obscurity of informality’ (183). Hence, when, inresponse to questions concerning the scope and nature of network loyalty, appealsare made to the overarching network purpose, these must be understood, neitherfrom ‘the one-sided perspective of an exchange’, nor from the one-sided per-spective of corporate totalisation,but as encompassing ‘the contradiction betweenthe individual and collective elements of networking’ (185). In the same way,where there are disputes about the interpretation of standard form contracts thatapply to networks, or about the allocation of risk within just-in-time supplynetworks, the larger contradictory perspective must be adopted.
These themes (particularly the recurrent oscillation between competitive andco-operative behaviour) are pursued in Chapter 5, where the central questionconcerns the possibility of network members holding one another to account.For example, if one contractor within the network is shirking, or free-riding, orundercutting, or acting in an opportunistic way, is it open to another contractorwithin the network to press for compliance or compensation?Within a network,to what extent may there be, what Teubner terms,‘piercing liability’? In general,Teubner suggests, franchisees should leave it to the lead franchisor to restrainfranchisees who act contrary to the overarching network purpose; but, if fran-chisors fail to act, it should be open to franchisees to intervene (to pierce liability)for the sake of the network.
In the final chapter, Teubner turns to the important matter of the externalliability of the network and its members (and, concomitantly, the internal allo-cation of responsibility in relation to external liabilities). In response to thesematters, the reaction of networks ‘is one of strategic ambivalence’ (239). Withtheir ‘chameleon-like characteristics’ (240), network members can interface withexternal contractors as disconnected and discrete individual contractors (liableonly to their co-contractors) or as mere nodes in the larger network of connectedcontractors (liability resting with the latter). In German law, there are evidentlydoctrinal resources to aid external claimants who seek to join defendants fromwithin the network but with whom they have no direct contractual connection;
but there remains the problem of apportioning responsibility within the networkitself. For this latter purpose, the idea of the overarching network purpose againneeds to be relied on. Thus, as Teubner summarises it, questions of externalliability should be regulated by reference to a doctrinal constellation involving‘internal network agreement (agreed third party performance impacts), externalclient contracts (culpa in contrahendo criteria) and overarching association (networkpurpose)’ (261).
Duly ‘irritated’ (in the best possible sense) by Teubner’s insights, what shouldwe (reasoning within our own legal paradigm) make of contractual networks? Dowe need a regulatory response; and, if so, is the development of the idea ofconnected contracts the right kind of response? Putting to one side the quiteintricate details of German jurisprudence, the obvious question is whetherEnglish law is missing a trick by neglecting to develop an explicit doctrine ofconnected contracts (or something similar) for the regulation of business net-works. Some years ago, an idea of this kind was actually put to (and rejected by)the Law Commission when it consulted on the reform of the principle of privityof contract (see (1997) 60 MLR 238); and, in fact, the working definition of anetwork in that proposal bore some similarity to Teubner’s three-part test.However, not only is it clear from Teubner’s discussion that there are issues thatreach beyond questions of privity,English commercial contract law has moved on– most importantly,under the influence of Lords Steyn and Hoffmann,by linkingthe reasonable expectations of the contractors to the context in which they aredealing.Accordingly, if there is to be any translation of connected contracts intoEnglish law, it needs to be on a broader doctrinal canvas as well as being relatedto modern case-law developments.
The contextualist approach of Lords Steyn and Hoffmann is significant infour ways. First, it makes explicit the idea that the fundamental purpose of thecommercial law of contract is to protect the reasonable transactional expectationsof business parties. Secondly, in determining whether a commercial contractor’sexpectation is reasonable, there are four recognised reference points: (i) the formalrules of contract law; (ii) the express terms of the agreement (provided that theyare compatible with the formal law); (iii) the signals given by a co-contractor(such as the signals of encouragement or acquiescence that base the fair dealingideas at the root of equitable estoppel or common law waiver); and (iv) theimplicit understanding of contractors who deal in a particular business sector.Thirdly, although the distinctively ‘contextual’ reference points (points (iii) and(iv) above) emerge in disputes involving the interpretation of commercial con-tracts, it is clear that context is relevant across the whole range of transactionaldisputes between commercial contractors. Fourthly, following Lord Hoffmann’sseminal speech in Transfield Shipping Inc v Mercator Shipping Inc [2008] UKHL 48,unless there are clear policy reasons for pitching the formal rules in a particularway (eg the rules against penalty clauses or exclusions of liability for negligentlycaused death or personal injury) the formal rules should be treated as defaultsliable to be displaced by the parties (whether by express terms, by conduct, or byimplicit understanding as in Transfield Shipping itself). We can debate just howradical a departure this is from the classical model and from orthodox Englishcontract law thinking – but not here. For present purposes, the only question is
how this bears on any proposal for the adoption of networks and connectedcontracts.
Consider, first, how the new contextualism might bear on internal networkdisputes of the kind discussed byTeubner in Chapters 4 and 5. On the face of it,a contextual approach applied to the interpretation of standard form terms injust-in-time supply contracts or to a case such as Apollo (Optik), would leadquickly to the network setting; and, in many cases, it would probably generatesimilar outcomes (reflecting heightened expectations of co-operation and pro-portionate risk allocation) – outcomes, asTeubner puts it, that symbolically restate(or endorse) stable network expectations. However, the approaches are notidentical; they do not have quite the same emphasis and certainly not the samepriorities.Whereas, in Teubner’s account, networks have a distinctively contra-dictory nature that should always be reflected in the regulatory response, con-textualism sees the network as a self-governing business community. Whereas,for Teubner, the legal challenge is to keep faith with the paradoxical logic ofnetworks, for contextualists, the legal challenge is to keep faith with the parties’understanding of their rights and responsibilities as members of their network.Whereas, for Teubner, it is the logic of the network that grounds stable expec-tations, for contextualists, expectations are stabilised by a mix of norms,normality,and agent interactions.What seems to matter for Teubner is that the law shouldrespect the dynamism and potential benefits of network forms of businessorganisation; what matters for contextualists is that the law should respectfunctional and legitimate zones of self-governance.This contrast, notwithstand-ing, it does not follow that it would be counter-productive or entirely unhelpfulfor English contract law to specify a set of conditions (as Teubner does) for therealisation of a network with its own special rules.However, unless this version ofa network and its effects was underwritten by a particular public policy impera-tive, it would operate merely as a default, as a background reference point for theparties’ reasonable expectations. In this background capacity, it would be broughtinto play only where the parties’ foreground expectations lacked the clarityneeded to settle their particular dispute.
While contextualists might wish to champion self-governing businesscommunities (for reasons of both agent-autonomy and flexibility in the face ofrapidly changing global economic conditions), they need to set limits to self-governance; business networks cannot be permitted to rule the world. Inparticular, when networks interface with their clients (whether commercialor consumer contractors), there needs to be a regulatory environment that issensitive to the larger public interest. As Teubner’s discussion of the externalliability of networks (in Chapter 6) highlights, there are questions about both theprotection of claimants and the internal apportionment of liability. For contex-tualists, the latter question can be left to the network’s own self-governing order;but, once we address the former question, even though we are thinking aboutcontracts we are moving into the realm of public order (particularly, whereconsumers are the claimants, as the OFT case and a stream of regulatoryinterventions from Brussels amply demonstrate).At this point, each legal systemwill have its own regulatory purposes and priorities which it will seek to advancein its own way.
This leaves one final matter. On a number of occasions,Teubner remarks, enpassant, that business networks embed modern technologies in their day-to-dayoperations. He does not elaborate on the nature of these technologies but wecan assume that information and communication technologies, RFID trackingdevices, and the like, are uppermost in his thoughts. With the developmentof modern technologies, it becomes possible for networks to operate in eversmarter and more efficient ways; and, to a considerable extent, we can seenetworks being shaped by the technologies that underpin their operations(think, for example, about the contractual networks that will develop aroundcloud computing services). It also becomes possible for businesses to exploit theirtechnological advantages in their dealings with customers, leading to calls forregulatory interventions to control overreaching by copyright-holders, infringe-ments of privacy, and so on. If, like the contextualists, we value self-governancebut we also value technological improvement, there is a double warning here:both within and without networks, we need to monitor asymmetries of power(particularly when enhanced by technological capability); and, everywhere, weneed to keep an eye on the incremental and insidious adoption of technologicalinstruments of governance. In a world of networked paradox and contradiction,the plot thickens.
Roger Brownsword*
Gralf-Peter Calliess and Peer Zumbansen, Rough Consensus and Running Code:ATheory ofTransnational Private Law, Oxford: Hart Publishing, 2010, 382 pp,hb £50.00.
Globalisation has sometimes, somewhat simplistically, been viewed as a threat tolaw, implicitly conceptualising law as an exercise of state regulatory power.Greater insight into the role of law and the nature of globalisation’s challengemay be gained, however, through conceptualising law as a social or culturalphenomenon, one of a number of methodologies of social ordering. From thisperspective, globalisation does not simply threaten the effectiveness of legalregulation, but effects a transformation of its fundamental constituent elements,by redefining the ‘society’ under which law is constructed in a way that tran-scends national boundaries. This undermines or challenges not only nationalconceptions of law, but also traditional international legal forms and disciplines,which conceive of law as operating either between states (public internationallaw) or as localisable within particular states (private international law). It is to thisdeeper challenge that Rough Consensus and Running Code responds. Focusing onquestions of private law, it presents a new theoretical model for the way in whichsuch ‘transnational’ law develops, to offer ‘both an explanatory and a constructivetool’ (1) or a ‘constructive and a methodological model’ (275) for the analysis ofthis de-territorialised regulatory landscape.
The central idea of the book, developed principally in Chapter 2 (which alsoincludes a very detailed survey and analysis of existing theoretical perspectives ontransnational private law), is that at least some elements of transnational regulationcan be understood through an analogy with the development of certain formsof internet regulation. Instead of regulation being imposed from a ‘sovereign’authority, it is derived through a decentralised marketplace process of ‘roughconsensus’, the gradual acceptance of best practice rules and standards. Suchregulation is not rigid and embedded, but takes the form of a more flexible anddynamic ‘running code’, which may evolve incrementally to respond to marketneeds.
Naturally enough, this model seems most apt when the regulation which isbeing developed appears ‘technical’ or ‘co-ordinative’ in character. Part of thefunction of law is the development of such technical standards, and it is awell-recognised phenomenon that the development of such forms of regulationis often carried out by private parties through self-regulating marketplace pro-cesses rather than by governments, and operates in the more flexible and dynamicform of ‘soft law’ rather than formal regulation. Both within and beyond stateboundaries, there is indeed at least arguably a ‘consensus among lawyers andsociologists that any legal order is, in reality, always constituted by an amalgam-ation of official and less official norms’ (18).
The book, however, rejects the characterisation of legal regulation as everpurely ‘co-ordinative’, and develops its analysis through the examination of twocase studies which directly (and consciously) confront the limitations of such atechnical perspective on legal regulation – transnational consumer contracts,examined in Chapter 3, and transnational corporate governance, examined inChapter 4. In these contexts, as in many others, transnational regulation is notfaced with the technical problems addressed in the development of standards forthe internet. Rather, or at least in addition, it is concerned with problems ofjustice and social ordering. And it is here that the argument and the analysissustained throughout this book face their deepest challenges.Can law exist at thetransnational level, even as a social or cultural phenomenon, without a transna-tional conception of the ‘public good’? Where does the normative force oftransnational regulation come from – in particular, what rules determine when‘consensus’ is reached, and how do those rules protect minority interests? Whatreassurances does it offer that ‘private’ modes of regulation adequately accom-modate ‘externalities’ (like environmental costs) or the basic individual rightswhich have evolved in national legal systems (including human rights, employeerights and consumer rights)? The book is, of course, very much alive to thecritical importance of such questions of legitimacy, rejecting ‘a traditional modelof political legitimacy’ as ‘ill-suited to capture the dynamic and open nature ofthese regimes’ constituencies’ (25) – but perhaps raises more questions than itanswers. It might well be argued that transnational legal regulation simply rep-licates the eternal problems of political legitimacy in new forms.
This is not always an easy book to digest. It is at times dense in both style andcontent, perhaps ironically imbued with the terminological ‘running code’ deve-loped in the ‘transnational private networks’ of sociology-informed scholarshipon global governance. In making its argument for ‘an understanding of law in the
legal pluralist and reflexive law tradition, but in a distinctly post-national,globalised, transnational context’ (3), it builds on and at times requires familiaritywith a significant breadth of theoretical scholarship. But it is a book whichdeserves the close reading it demands, from a readership which should span acrossa variety of legal fields, including public international law, private internationallaw,comparative private law, and not least international legal theory.Transnationalregulation in a variety of forms is a fact of the modern world, but at least to someextent remains a ‘terra incognita et obscura from the point of view of traditional,state-based international law’ (2). If legal scholars do not grapple with this reality,seeking to understand – and critique – the new forms of regulation whichchallenge the traditional dominance of national regulators, processes and publicinterests, then legal scholarship will face the same risk of marginalisation.Whetheror not one finds its particular model compelling, Rough Consensus and RunningCode is a sophisticated and thoughtful effort to renew and update our under-standing of law to accommodate the challenging realities of globalised regulatoryprocesses.
Alex Mills*
Alain Pottage and Brad Sherman, Figures of Invention: A History of ModernPatent Law, New York: Oxford University Press, 2010, 212 pp, hb £75.00.
This book raises a simple, rarely asked, yet fundamental and difficult question inthe practice of patent law:what is the invention? Invention is the central theoreticalpremise underlying modern patent law, as well as its main object, yet it eludescomprehensive and precise understanding.Having ‘already made the leap of faith’(8), most patent law practitioners and academics take this primary foundingfiction of patent law – that an invention exists which can be identified andpatented – for granted and leave its conceptual foundation unquestioned. Bycontrast, in the context of US patent law, judges and treatise writers since thenineteenth century struggled with the question of how to differentiate inventiveideas from their material embodiments. In addressing this legal technical andepistemological dilemma, they produced a rich philosophical analysis of thenature of inventions.For example,William Stringham’s 1939 treatise about patentclaims draws on Alfred North Whitehead in order to explain that combinationclaims were artefacts of argument that had no real-world equivalents (152).Perhaps modern patent lawyers feel that a precise conceptual definition is neithernecessary nor helpful for legal practice. Nonetheless, the question ‘what is theinvention?’ is most acutely raised and discussed in court cases. Justice Story’sanswer to this question as ‘the principle of a machine’ in the famous case Boulton& Watt v Bull [1795] still exerts profound influence on how law thinks aboutinventions (65). It remains the central question for all patent examinations and
litigations today, especially in light of software and biological inventions thatunsettle this underlying mechanical paradigm of patent law.
Such a contemporary, consciously or unconsciously cultivated, evasion of thecentral question,of course,cannot and does not exist in a historical void.Preciselybecause of its indeterminacy, the concept and conceptions of invention presenta fascinating opportunity to explore the workings of patent law. The centralquestion of ‘what there is’ rarely gets asked because an elaborate web of materials,performances and processes has been built around it. Thus the angle of theexamination shifts towards excavating the layers of legal material practice: howdoes an invention get articulated? How exactly does law go about separating theimmaterial idea from its embodied material form? In addressing these questions,Pottage and Sherman propose ‘an alternative conceptual history of modernpatent law’with the aim‘to make visible a set of representational practices that areessential to the functioning of patent jurisprudence, but which are neithernoticed nor explained by patent doctrines’ (17).
Their resulting conceptual history is original, densely detailed and theoreti-cally sophisticated. Its focus is on the material emergence of the paradigmatic andelusive object of patent law, the invention, from its beginning with the Patent Actof 1790 to the latter part of the twentieth century in the American legal context.The notion of the invention’s emergence here is foremost materialist and prag-matic, which stands in a constant productive friction with the intangible qualityof an ‘inventive idea’. As the authors recognise, ‘[i]ndeed, the irony is thatalthough intellectual property is cast as a fictional analogue of property intangible things, there is a sense in which patent law is more materialist than theparadigm on which it is modelled’ (11).
At the book’s core is a study of the web of different material media andtechniques of representation with which modern patent law articulates and elicitsthe abstract idea of an invention. Thus the material media as legal techniques arethe main protagonists of this book – the written descriptions and drawings,working patent models and their demonstration, the drafting and interpretationof textual claims, plant type specimens and biological organisms – and a chapteris devoted to each of them.Far from being instruments in the passive sense of theword, these media do not merely represent an external reality of invention whichis translated, but they literally ‘figure out’ and configure the legal fiction ofinvention by their visualisation and demonstrations,which are then interpreted inwhat Latour named a ‘chain of reference’: ‘a series of specific transformations inwhich one avatar of the object of study is transformed into another through asuccession of texts, diagrams, and instruments’ (9) and which comprises legaldoctrines, textual media, and living and mechanical materials.
Such a chain of reference, which could be variably understood as an assem-blage or dynamic enmeshment of different vectors in the sense put forward byDeleuze and Guattari, is based on two key conceptual premises, which formedmodern patent law’s underlying ‘phenomenology’ (26) and which are still key toits operation today.These are analysed in chapters two to four.The first centralpremise is the belief that an inventive idea can be separated from its materialembodiment and has an independent existence. Pottage and Sherman attributethis separation between an idea and its embodiment to the ‘ideological distinction
between manufacturing and [artisanal] making’ (30). Tying in theories of politicaleconomy of Babbage and Marx with economic historical scholarship on thedifferent modes of manufacture in the nineteenth century, they explain thisseparation by reference to the emergence of the capitalist mode of manufacturein which the legal distinction between idea/embodiment was drawn along thedistinction between manufacture/artisanal (27). Such an identification of tech-nical knowledge as the inventive idea and its subsequent stabilisation as an objectthrough textual description was essential for its establishment as intellectualproperty.
The related second premise which the authors identify as being fundamentalto patent law jurisprudence is the paradigm of the machine, or industrial manu-facture. Referring to nineteenth century US patent law cases and treatises – thephilosophical depth of which startles the modern reader – the authors show howthe essence of the invention has come to be understood as an abstract ‘principleof a machine’ (65), which needed to be elicited by a choreography of perfor-mance and interpretation. Such a principle of a machine in an invention wasbrought alive by a patent model’s performance and later enacted into patentclaims which functioned as abstract semantic machines.The authors write: ‘Thesemantic content of doctrine,or the range of meanings that doctrinal rules mighthave, was actualised in the medium of demonstrations.That is the sense in whichpatent jurisprudence is profoundly modelled on the logic of the machine mostlyregardless of its media.The material-discursive figure of the patent model, whichwas succeeded by the textual-discursive form of the patent claim,“machined” therelation between law and fact, texts and testimony’ (17).Even the Plant PatentActof 1930 was an attempt to apply the principle of the machine to plants, eventhough it resulted in a different kind of mechanical logic in which the ‘inventionwas inductive rather than originating; it consisted in retroactively turningsomething found into a reproducible form, rather than originating a new (andreproducible) form’ (153).
At this point, the book’s distinctive methodology and theoretical approachmerits a closer discussion in order to better understand its analytical strategy.Thebook’s force and originality derives from its theoretical sensibility and persistenceto bring into vision the epistemological and philosophical paradox at the centerof patent law: how does the law make something intangible tangible? What arepatent law’s ‘materialities of communication’, as Hans Ulrich Gumbrecht andKarl Ludwig Pfeiffer have phrased this issue? Rather than writing a history oflegal doctrines, Pottage and Sherman approach this paradox by weaving togethera multi-layered assemblage of theoretical positions, treading, as Latour put it, ashifting web of ‘risky intermediary pathway’ (10) or multiple epistemic border-lines.Their method resembles a node which knots together diverse, but not toodistant theoretical viewpoints: it could be described as a material archaeology inthe Foucaultian meaning of the word; or more precisely, media archaeology lessthe technological determinism,with affinity to the late CorneliaVismann’s work,by emphasising the central role of media in the performativity of both legalsemantics and materials, so much so that the authors make the claim: ‘[b]ut forthese media – paradigmatically the patent specification – doctrinal argumentwould have no object,nothing to talk about’ (13).From the perspective of history
of science, the book can be understood as a material history of the fuzzy legal‘epistemic thing’, the invention, as elaborated by Hans-Jörg Rheinberger in histheory of historical epistemology,but within a much more codified setting of law.However, most of all, as already presented above, the book draws on Latour’spragmatic figure of ‘chain of reference’ which it employs in order to depict theemergent processes by which the meaning of invention is drawn out in aninterplay of communication and interpretation together with the agential effectsof specific material media. It is in this sense that, at first glance,Luhmann’s systemstheory of self-referential meaning constitution seems to become absorbed intothis Latourian sprawling web of associations (115).
And it is also at this point at which I realised that it was not entirely clear tome what kind of roles and effects material media have in relation to communi-cation or interpretation along such a chain of reference. But the nature of thisrelationship constituted the crucial point of analysis in the authors’conceptualmethodology. Who or what was communicating and how exactly could thisoccur? In what ways is legal meaning elicited in the interplay between thespecific materiality of the media (for example, cellulose texts vs three-dimensional models) and legal interpretation or communication, which in turnseems to be shaped by the former? I was trying to understand the nature ofrelationship between legal communication (in the closed Luhmanian sense) andthe epistemic dominant role attributed to material media, which possessed theirown innate agencies (as Latourian actants): how did Luhmann’s systems theory fitinto such a social assemblage overall; or was the appropriate question rather howLatourian actor-networks fit into Luhmann’s system of communication?
Throughout the book, the precise nature of oscillation between materialityand communication and their relationship remain ambiguous. It is most clearlyspelled out in the discussion of specific material media. Pottage and Shermanseem reluctant to give epistemic primacy to either communication or materialmedia which engage each other in the act of legal interpretation, the interactionof which is more generally stated here:
The intangible is only visible in the material shape, configuration, and operationof a material artefact or process where it reveals itself. In that sense materialembodiments are like texts; they have to be deciphered, interpreted and ascribed ameaning. And, as in the case of a text, interpretation is a thoroughly constructiveprocess . . . In one sense, representation and interpretation are effects of doctrinalargument. . . . But these arguments depend on the ability of lawyers to refer to andmanipulate the features of the invention, which in turn depends on the tacitconventions and implicit skills involved in communicating about and through thematerial media in which the invention is represented, and ultimately, on the textureof these material media themselves.’ (13)
Similarly, the authors state at a later point:‘when interpreters elicit a referent froma text they are not crossing a divide between word and world, they are movingalong a chain of reference, between texts and quasi-texts (144).
But moving beyond the accurate observation that the legal fiction of inventiondoes not mirror an independent external reality, it would still be necessary to
qualify the self-referential and immanent movements within patent law’s chain ofreference. Here, on the one hand, the authors point to the creative and perfor-mative agency of material media: ‘Instead of just presenting or representing anexistent invention, models served to bring the invention into being.’ (97) On theother hand, there are other parts of the book which indicate that material mediaare already pre-figured by legal acts of interpretation. In the following passage,Pottage and Sherman explain how the figure of the model became eclipsed bythe figure of claims: ‘when mechanical form was introduced into a trial it wasalready coded in legal terms’ and ‘the form of the patent text itself had normativeeffects: the materiality of the text configured mechanical form in such a way thatit was already, even before the argument began, cast in terms of its legal signifi-cance’ (both 119). Isn’t such a casting of ‘legal significance’ into the ‘form of apatent text’ a very act of semantic interpretation, that is, of communication?Thiswould indicate that legal communication, or code, informed the very way mediawas employed,perhaps so much so that the force of material media was secondaryto it. Indeed, the authors maintain in the context of patent models that, althoughthe model was a central legal technique for making the inventive idea visible, itremained a representation of legal text, in which the text enjoyed epistemologicalprimacy (59). So does this mean that it is Latour’s figure of chain of referencewhich turns out to be embedded in Luhmann’s self-referential theory rather thanthe other way around, as the authors’ statement – ‘materiality is sociality’ (104) –seems to imply? But then, what is sociality in this sense exactly? Or is sociality– which I would interpret as a mutable ability to engage in social relations –explained at best materially? Are material media innately meaning-generatingand self-referential in themselves like communication? If so, how?
Effectively, Pottage and Sherman displace this chicken-or-egg problem byadding another layer of observation, namely by focusing on the internal charac-teristic or innate performativity of material media. In chapter six, they analyse therepresentational shift from the figure of patent model to the dominating figure ofpatent text,which occurred with the introduction of patent reissues in 1832.Thispractice is rarely mentioned in patent scholarship, but is fascinating because itraises the fundamental question of ‘performativity of language’ (115).This notionof performativity is central to the book’s analysis by allowing it to differentiatebetween varying degrees of agency along the chain of reference. Crucially, thedegree of self-referentiality in the generation of legal meaning seems to dependon how much the figures of invention are in possession of innate performativity,or agential resistance. Consequently the legal act of interpretation seems mosthermeneutic in relation to the figure of patent claims, the material density ofwhich is relatively light and which could be engineered into ‘quantum patentmechanics’ (139) as Dan Burke and Mark Lemley describe the art of draftingclaims, without much cellulose resistance.This seemed less so in the context ofthree-dimensional and operating patent models, which had to be choreographedinto demonstration but then had to perform the principle of the machine bythemselves.The process of eliciting inventive ideas from the figures of living planttype specimens and biological deposits seems to be also more materially deter-mined than semantically engineered. Its effect has been to extend the legal chainof reference to the plant organisms themselves, as well as to other systems of
interpretation, such as botanical taxonomies (chapter nine). It is particularly in thelast two chapters of the book,which address patents in plants and other biologicalorganisms, that the importance of the media’s specific constitution becomesclearly visible.
In sum, the relationship between legal communication and media’s materialityseems to be vitally influenced by the internal make-up of the material mediaitself. Pottage and Sherman’s conceptual methodology could be characterised asan observation of the workings of three interlocking epistemic brackets or layersof material-semantic interpretation. They are: first, the specific kind of tactileembodiment or immateriality of law’s media, what Pottage and Sherman call‘texture’ (13), which in turn is closely related to the second level of analysis,namely the performativity and agential capacity of such different legal figures ofinvention. The third layer of analysis concerns the way legal meaning is con-structed in relation to the textural and performative aspects of legal materialmedia.
In this light, Pottage and Sherman’s methodology of multiple theoreticalvantage points from which to observe patent law in action does not seem sodifferent from the assemblage of patent law practice itself, which is driven by thespecificity of its subject matter (such as machines, combinations, biologicalorganisms) and the particular material constitution of the media employed(paper, language, machine model, drawings).Whereas the definition of inventiveidea seems to be at times entirely self-referentially constructed by textual refer-ence, which is perhaps most aptly explained in terms of Luhmann’s systemstheory, sometimes the agency of the material machine or plant seems to performand thus materialise legal meaning in not entirely predictable ways.These latterfigures of inventions would much more resemble Rheinberger’s fuzzy andunpredictable figure of the epistemic thing.
Lastly, Pottage and Sherman’s multi-faceted historical study of different legalpractical and interpretive registers is not only a significant contribution to thehistorical study of patent law, but its conceptual analysis also broadens andenriches contemporary perspectives on the challenges posed by biologicalinventions (chapters eight and nine) and software-related inventions to patentlaw.As the authors demonstrate in convincing detail, the new species of textual-biological figure of invention has been spelled out by way of an ‘inductionbetween particulars’ (205).The biological invention emerges out of a strangelyretrospective construction of the inventive idea along the gaps between differentmaterial media: the material biological deposit, the written descriptions in patentliterature and text, the taxonomic information of the deposit and the patentclaims. The authors argue that such an articulation of the inventive idea inbiological inventions represents a return or a revival of the traditional figure ofinvention: ‘the archetype represented in the patent model and the patent claim’(206). But a revival does not always necessarily equate to a return to the same.The articulation of the inventive idea in biological matters has ignited a battlebetween the innate performativity of living matter and its conflict or accom-modation within legal paradigm of the invention as a machine – and this isa conflict which is currently intensely played out. The insights offered by thebook open useful novel perspectives on this discussion and raise fundamental
questions about the agential capacity of both biological matters and computedlanguage of software.
HyoYoon Kang*
James Harrison, Making the Law of the Sea, Cambridge: Cambridge UniversityPress, 2011, 340 pp, hb £65.00.
Every so often observers discover some inadequacy, real or imagined, in theUnited Nations Convention on the Law of the Sea (UNCLOS), promptingthem to offer well-intentioned suggestions as to how it could be solved by aFourth United Nations Conference on the Law of the Sea.The generation ofofficials who negotiated UNCLOS, however, while willing to concede theimperfections of the instrument they created, have always firmly maintained thatit was the best that could be practically achieved. While UNCLOS can beamended by procedures set out in Articles 312 and 313, no risk-averse govern-ment wants to be the first to reopen the delicate compromise text for the sake ofone desired improvement, given that it would prompt many others to follow suit,risking the unravelling of much of the painstaking work on other provisions andleaving the world worse off overall. Instead, the period after the adoption ofUNCLOS in 1982 and particularly since its entry into force in 1994 has beenone of consolidation, where the need to devise new rules for the many practicalproblems encountered in the implementation of what is in large parts a complexframework convention is more than enough to keep foreign, legal and sectoralministries busy.This book, the outgrowth of the author’s doctoral thesis, showsthat a great deal of such activity has been going on quietly behind the scenes andcan be expected to continue.
In line with the subtitle of the book (‘A Study in the Development ofInternational Law’), the author achieves what he promises at the outset: not toexplain the substance of the law of the sea as such, but rather to elucidate how ithas come to be as it is,‘explaining and analysing the process of how the law of thesea is created and how it can be adapted to meet modern challenges facing theinternational community’ (1).
Chapter 1 contains an account of the obstacles to the making of newinternational law, including customary international law and the role of interna-tional institutions.The main hindrance tends to be the principle pacta tertiis necnocent nec prosunt, which prevents the application of new law to those States thatchoose not to become party to any instrument embodying it.The doctrine ofobjective regimes is considered but rejected as a way around this.
Chapter 2 has UNCLOS as its title but is actually about its (pre-)history. Itsmost interesting aspect is the analysis of the Convention’s relationship withcustom.The chapter opens with a history of attempts at codification of the law,noting that ‘many of the rules found in the draft articles [of the 2nd Committee
at the 1930 Hague Conference] are reproduced in almost identical form in latercodification treaties on the law of the sea.Thus, the draft articles . . . are an earlyexample of the influence that a written text adopted by a diplomatic conferencecan have on the formation of customary international law if they garner sufficientsupport from states’ (31).
Harrison reminds us of the often overlooked fact that it was the GeneralAssembly rather than the International Law Commission (ILC) that first took theview that all problems of the law of sea are interrelated (33). It thus declined in1953 to adopt as a resolution the ILC’s draft articles on the continental shelf andto forward the fisheries articles to the Food and Agriculture Organization of theUN (FAO) so that the latter could similarly adopt those – though, possiblybecause it did not maintain that attitude, the outcome of the First UN Confer-ence on the Law of the Sea was ultimately to divide the ILC’s consolidated setof 73 draft articles among four conventions and a protocol. In the light of theobservation that ‘the General Assembly recognised that the law of the sea raisedissues of a political or technical nature as well as questions of law’ (34), it ispeculiar that he omits any mention of the 1955 International Technical Confer-ence on the Conservation of the Living Resources of the Sea,whose significancein reorienting the 1953 draft articles on that subject was such that the late ShabtaiRosenne classed it as the first of five, not the usual three, UN conferences on thelaw of the sea (the fifth being the Conference on Straddling and Highly Migra-tory Fish Stocks of 1993–1995).
A later part of the chapter persuasively refutes the argument commonly madein the years after 1982 that the package-deal nature of UNCLOS overturns thetraditional relationship between treaty and custom, preventing its rules from everattaining the status of custom viaArticle 38 of theVienna Convention on the Lawof Treaties: ‘The most obvious objection, is that this view does not explain howone identifies the customary international law of the sea, if one cannot rely on thestate practice and opinio juris that coincides with the Convention’ (52). Harrisonis on strong ground in preferring the now orthodox view ‘that the process ofnegotiating the Convention itself contributed to the development of customaryinternational law in this area by leading to the crystallisation of new rules andprinciples accepted by all states’ (53).
Chapter 3,‘Amendment and Modification of the Law of the Sea Conventionby the States Parties’, first deals with the amendment process in Articles 312–316and then turns to the role of meetings of the States Parties.A little disappointingly,Harrison elects to sit on the fence in the faintly absurd controversy over whetherat these meetings the States Parties can discuss matters of substance in response tothe periodic reports of the Secretary-General under Article 319, or must confinethemselves to electing the members of the Commission on the Limits of theContinental Shelf (CLCS) and International Tribunal for the Law of the Sea(ITLOS) and associated administrative and budgetary questions.A possible causeis that his discussion rests on a misconception as to the status of these meetings,with telling repeated references to ‘the’ Meeting of States Parties, as though itwere a fourth institution alongside the three created by UNCLOS – the Inter-national Seabed Authority (ISA), ITLOS and the CLCS – which refers only to‘meetings’ in the plural of States Parties.The better view surely is that as a matter
of law such meetings face no restrictions on what they can properly debate,precisely because, unlike a formal Conference of Parties found under othermultilateral treaties, they have no status beyond that of parties to any other giventreaty (who under the law of treaties do not need to give themselves specialpermission to discuss the treaty’s subject matter). It is only considerations ofpractical politics that suggest it might be preferable for such questions of sub-stance to be entrusted to the General Assembly with its universal membership –though that too is less convincing than it used to be when the number of Statesnot party to UNCLOS was far above the current 30-odd.
Next the author considers the changes to the regime brought about bydecisions of the States Parties (78–81).He rightly distinguishes the postponementof the first election of members of the CLCS and ITLOS, delayed by 10 and 15months respectively from the timeframe contemplated in UNCLOS, along withthe election of a fifth CLCS member from the Western Europe and OthersGroup when the number of candidates in the Eastern European Group was oneless than the number of seats guaranteed by the Convention, from the postpone-ment of the start of the 10-year period that States Parties have in which to makesubmissions to the CLCS. Harrison acknowledges that modifications must besupported by all parties to the treaty in order to be effective, and concludes that,had any of the decisions been adopted by a majority rather than unanimously,they would be binding only on those States that voted in favour of them (82).Curiously, however, he omits to ask what the position would be of a State thataccedes to UNCLOS after one of these decisions. Arguably, once the electionshave taken place (though perhaps not before) and the bodies are constituted,States subsequently acceding suffer no detriment from the fact that they were notconstituted by the due date – in these circumstances, the modifications amountin effect to amendments. By contrast, it is not difficult to imagine how a newlyacceding State might be disadvantaged by the decision to postpone the applica-tion of the 10-year rule when negotiating its continental shelf boundary with aneighbour whose submission was one of those submitted in the last-minute rushof May 2009,but under the strict terms of Article 4 of Annex II would have beenout of time.Not having been party to the decision to change the rule, such a Statewould have a good basis for insisting on applying it in its original form.
Similar reasoning as to unanimity extends to Chapter 4 on the two imple-menting agreements, that of 1994 amending Part XI of UNCLOS in all butname and the 1995 Fish Stocks Agreement. Harrison cogently explains why theabsence of objections to the former has resulted in the creation of a universalregime such that non-parties too are bound to respect the ‘common heritageof mankind’ status of the area beyond national jurisdiction and the role of theISA, and hence to refrain from unilaterally authorising seabed activity in thatarea (98–99). Despite the theoretical indefensibility of its smoke-and-mirrorsapproach to achieving its aim – how after all, under the pacta tertiis principle, canit be possible for treaty A (the Part XI Agreement) to deem accession to treaty B(UNCLOS) also to be consent to be bound by treaty A even by States whichthereafter accede to treaty B alone? – in practice it has not arisen as an issuebecause the States in question, far from objecting to it, have all acquiesced in theISA operating under the 1994 Agreement rather than the original Part XI.
The Fish Stocks Agreement poses less severe problems, and here too there isevidence that the States negotiating it intended to make possible the crystallisa-tion of many of its rules into custom binding also on non-parties, identifiable asthose drafted in terms of ‘States’ rather than ‘States Parties’ (109–112).
Chapter 5 is devoted to the deep seabed mining regime, for which UNCLOSexpressly anticipated that the ISA would adopt additional instruments imposingobligations on its members, so that it ‘[o]f all the institutions considered in thiswork . . . comes the closest to an international legislator, as it is able to adoptdecisions that are binding on its members without further consent’ (24).Harrisondeals surefootedly with, among other things, the 2000 Regulations on Prospect-ing and Exploration for Polymetallic Nodules in the Area which ‘significantlydevelop the legal regime’ on the protection of the deep seabed environment(137).This is in part by referring to Principle 15 of the 1992 Rio Declaration onEnvironment and Development which postdates UNCLOS by nearly a decade,thus ‘clearly reflect[ing] an evolution in the law since the conclusion of theConvention, as the precautionary approach was not an accepted principle ofinternational law at that time’ (138).
Likewise, Regulation 32 on pollution emergencies includes rules such asreimbursement by the contractor of the ISA’s expenses in responding to such anemergency,which‘go further than the measures foreseen in the Convention or thePart XIAgreement.’Also worthy of note is the way in which the 2010 Regulationson Prospecting and Exploration for Polymetallic Sulphides in theArea depart fromthe UNCLOS regime norm of half of the area proved-up by the applicant beingreserved for exploitation by the ISA’s organ, the Enterprise (145). Regulation 16offers applicants the alternative of setting up a joint venture with the Enterprise inwhich the latter takes a minimum stake of 20 per cent with an option to purchasea further 30 per cent.This,while still based on the underlying principle of Part XI,represents a development of the regime‘in a way that was not envisaged when [it]was first drafted’ – and quite possibly would have been achieved only afterinordinate delay, or not at all, by amending UNCLOS (153).
Chapter 6 turns to the International Maritime Organization (IMO), whosemain but not exclusive role is in setting technical standards for ship safety andavoidance of shipping-related pollution. To the extent that UNCLOS makesmandatory ‘generally accepted international standards’ in relation to such matters,mostly found in the conventions drafted under the IMO’s aegis, it offers a way fordeveloping the rules in a far more responsive and predictable way than the slowprocess of treaty amendment, with no certain outcome, usually permits.This, asHarrison points out, should not be confused with the relevant convention havingentered into force; indeed, the instrument in question need not necessarily be oftreaty status,and hence binding of its own force,at all (174).On the other hand,hispreferred interpretation, that general acceptance equates to having been receivedinto customary international law, deprives the rule of reference of any practicaleffect,as the author himself admits (175).Yet he is able to restore meaning to it withthe sensible argument that the process of rule-formation in the IMO itself acts asa spur to the formation of custom, and the IMO’s use of consensus decision-making, perhaps somewhat frustrating in the short term, has the compensatingadvantage in practice of preventing the emergence of persistent objectors (177).
The IMO’s role in approving measures affecting navigation in internationalstraits and archipelagic sea lanes comes in for close scrutiny, in particular theMaritime Safety Committee’s 1998 General Provisions on the Adoption,Designation and Substitution of Archipelagic Sea Lanes, which handily fill a gapin Article 53 as to how the IMO should play the role foreseen for it; they aimto promote cooperation between the archipelagic and flag States to this end(184–185). Along the way, Harrison correctly defends the concept of partialdesignation used by Indonesia but not expressly provided for in Article 53, whileregretting that the chance to provide guidance on what is meant by ‘routesnormally used for international navigation’ was missed (185–186). He mighthave added that this would also help to shed light on a similar phrase ‘straits . . .used for international navigation’ in Article 37 and thus on the transit passageregime of Part III. He highlights the IMO’s endorsement of ship reportingsystems in such straits despite this not being expressly mentioned in UNCLOS,thus in effect modifying the Part III navigational regime (191–192).This leadsnaturally to the controversy over the Torres Strait compulsory pilotage regimeimposed by Australia and Papua New Guinea in 2006. Consistent with hisreasoning on ship reporting requirements, the absence of any mention of this inPart III cannot itself be a reason for the IMO to withhold approval; Harrisoninstead fastens on the absence of consensus on it, together with the support forit of a number of States conditioned on the pilotage being recommended ratherthan mandatory, as leaving the measure vulnerable to challenge (194–196),although the threats of such dispute settlement action by the measure’s oppo-nents have not since been followed through. One important dimension of thecontroversy is missing, however, in that the role envisaged for the IMO in theexclusive economic zone by Article 211 – and a fortiori for Part III straits andarchipelagic sea lanes – is that, when coastal States request measures of specialprotection not ordinarily available in these areas, it should form an opinion onwhether the factual (oceanographic and ecological) circumstances put forwardby the proponents warrant exceptional measures, and whether the ones pro-posed are a rational response to them. If those conditions are satisfied, the systemrisks breaking down if the IMO then withholds approval purely because someStates think a measure sets a worrying precedent, yet that is the position inwhich the insistence on consensus has placed it.
Chapter 7 concentrates on the role of the FAO in forming new internationalfisheries law.The introductory part downplays the role of the General Assemblyin this regard, despite its central role in the ban on large-scale driftnet fishingthrough resolutions in 1989 and 1991; the Assembly ‘saw itself as a catalyst forinternational action rather than law-maker’ (203). The FAO itself has adoptedtwo global treaties, the 1993 Agreement to Promote Compliance with Interna-tional Conservation and Management Measures by FishingVessels on the HighSeas and the 2009 Agreement on Port State Measures to Prevent, Deter andEliminate Illegal, Unreported and Unregulated Fishing (not yet in force), butperhaps more instrumental has been the soft-law 1995 Code of Conduct forResponsible Fisheries.
While it is clear from the Code’s drafting history and language that it was notintended to be of norm-creating character, hindering its transformation into
custom (218), Harrison sees some hope for the concept of responsible fishing toinfluence the development of other rules (220). More could have been made,however, of the interaction between FAO and the Conference of Parties to theConvention on International Trade in Endangered Species of Wild Flora andFauna, which is mentioned only briefly in the concluding part of the chapter(235–236).
The last substantive chapter, Chapter 8, on cooperation, coordination andconflict between international institutions, is something of an anti-climax, eventhough it is hard to disagree with anything in its treatment of the problemof fragmentation in lawmaking and of questions of process in the UN system.There is a good description of the Informal Consultative Process on Oceans andthe Law of the Sea, whose role in shaping the content of the annual GeneralAssembly resolutions is at once clear procedurally but opaque as regards thesubstance, given that the resolutions are drafted ‘in private through [further]informal consultations between States [which] means that it is difficult to knowprecisely what policy considerations underlie the final resolution’ (284).This isfollowed by an equally assured account of the coordination between the IMOand the International Labour Organization regarding seafarers’ welfare and thesetwo organisations and the Secretariat of the Basel Convention on the Control ofthe Transboundary Movement of Hazardous Wastes and their Disposal regardingthe scrapping of ships.The section dealing with conflict between treaties is ratherhypothetical given that no actual instances of conflict are identified; this couldhave been avoided had not the Southern Bluefin Tuna case, where the AnnexVIItribunal’s finding that it lacked jurisdiction was in part dependent on what maybe described as a manufactured conflict between dispute settlement clauses, beenoverlooked (Southern BluefinTuna Case (Australia and New Zealand) v Japan,Awardon Jurisdiction and Admissibility (2000) 39 International Legal Materials 1359).
In sum, the work constitutes a solid and welcome contribution to the litera-ture on the law of the sea.Although it does not lend itself to use as a textbook,its lucid argument and clarity of expression nonetheless make it eminently suitedto feature on reading lists of international relations as well as international lawcourses. Pleasingly, the manuscript has evidently been checked carefully to elimi-nate all but a few factual and typographical errors, of which the reviewer foundonly a handful. Beyond the academic world, it can also be recommended tomembers of government delegations attending for the first time meetings of anyof the international bodies surveyed, who will find it a valuable guide to howthese institutions work in practice, that sets the issues which they are asked to takeforward in their wider context. A further strength is that its broad proceduralthemes will remain relevant even when the institutions have moved on to otherissues, something that is not likely to change until a Fourth UN Conference onthe Law of the Sea does come about, and perhaps, depending on its outcome,noteven then.
