Those 500,000 Doubloons (and What Dan Drezner Has to Do With Them)

Last week’s report of a major shipwreck treasure recovery had me wondering about what the law is here. From a pretty quick study, it looks like this is mostly CIL, at least as far as sites outside territorial waters and the contiguous zone are concerned (that is, more than 24 miles from shore, as this one apparently is), in which case it’s the law of salvage (in which case the salvor gets some cut – probably quite significant in this kind of case – against any successors in interest to the treasure) versus the law of finds (in which case the divers get to keep it all).

Not that there haven’t been attempts to bring such recovery activities under conventional international law, with an eye to protecting such shipwrecks as archeological sites. The Law of the Sea Convention includes a provision requiring states “to protect objects of an archaeological nature found at sea and shall cooperate for that purpose,” and that such objects “shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin” (sections 303 and 149). That’s too vague to have much traction on the seabed.

By contrast, the UNESCO-sponsored Convention on the Protection of Underwater Cultural Heritage sets out a detailed regime weighted against “commercial exploitation” (which seems more understandable after visiting the tawdry website of the company involved in this latest find, Odyssey Marine Exploration – get your lumps of coal while they’re still available). It was opened for signature in 2001, but only has 14 sign-ons so far (it won’t go into force until it has 20). The Europeans and US are opposed. You can find the official line on US opposition in this extended treatment from the Legal Adviser’s Office, which stresses the Convention’s extension of coastal state jurisdiction and the failure adequately to protect state interests in their own sunken warships, wherever located.

No, Dan Drezner hasn’t donned a cooper helmet and a diving suit. In his latest book, All Politics is Global, Drezner comes up with a nifty typology of regulatory coordination in the form of a matrix, the dimensions of which are divergence of interests among great powers and then the divergence of interest between great powers and other international actors (it’s on page 79 if you have your copy handy). When you have low conflict among great powers and high conflict between the great powers and other actors, the model predicts a “club standards” regime. And that seems to be what has emerged in the context of treasure hunting, with the great powers reaching ad hoc agreements on particular finds (as was the case with the Titanic), at the same time as they also handle the issue through domestic law. The universalizing option of an open-to-all multilateral treaty gets left by the wayside.

Which is not to say that I think Drezner’s update of a great-powers methodology works across the board. Drezner takes globalization seriously, which is more than you can say about other rat-choice oriented state-based theorists. He also understands that any useful model today has to take account of non-states actors. But he ultimately concludes that although globalization “has led to the emergence of new issues to be analyzed by IR scholars, it does not imply that new paradigms are need to explain these issues.” Drezner minimizes NGOs as lacking the material resources to compel state action, which relegates them mostly to the role of delegatees and cheerleaders of state-driven regimes. In Drezner’s view, great-power agreement is both necessary and sufficient to the establishment of international regulatory regimes.

I don’t think that works in all cases, and even less so into the future. In the context of international labor standards, for example, Drezner dismisses codes of conduct with an unsourced paragraph. He does take on the “semi-deviant” (from his theory) case of TRIPS and public health (and the Doha Declaration), highlighting that AIDS is now processed through a security lens and as a threat to great power interests traditionally defined. But that seems to accept great-power framing at face value, and here again he ignores the civil society-corporate dynamic outside of an intergovernmental tent (or in ones more friendly than the WTO, like the World Health Organzation). The book also fails to confront the trendlines. It concedes that NGOs are more powerful than they used to be; couldn’t we expect them to become more so, and if not, why not? All that said, the book is clearly an important addition to the IR literature, and one that should be of interest to IL scholars.

Update: As Roger notes below, Drezner responds here. His first point: predictions of the continuing rise of non-state actors is unfalsifiable. Another reason IL scholars have things better than our colleagues in poli sci — we can engage in rampant speculation! (And who’s to say the IL team would lose in a real-space brawl? Fantasy academic boxing, anyone?)

Seriously, if conditions give rise to certain trends (like the emergence of codes of conduct that measurably affect corporate behavior), the projection of those trends into the future (while not falsifiable) is more than guesswork. Otherwise you end up with static analyses, which are fine in static times but not in unstable ones.

Dan goes on to argue that states will fight back. I take the point, but my reflex here is that while states can compete against each other it’s something else to compete with a different type of entity. (To make an imperfect sports analogy, the Yankees can take on the Red Sox but not the Redskins.) I know that delegation and cooption are part of the possible answer, but over the long run those are rear-guard actions, not frontal assaults. There is also an assumption in the delegation model (that is, that NGOs will be brought into the service of states) that there aren’t any agency problems.

As for the question of whether civil society can influence the establishment of regimes involving non-democracies, it’s true that governments beyond the US and EU are pretty resistant (witness the serious pushback over the relatively trivial issue of NGO amicus briefs before the WTO’s dispute settlement process). But that doesn’t bear on NGO capacities to influence those states outside negotiating rooms (and to the extent they exercise influence from the streets — proverbial or otherwise — that influence is felt on the inside as well). China is the toughest nut to crack, because of its market power — the test case will be the Yahoo/Google/China human rights dust-up. Everyone else is pretty clear game by now, and not just through domestic politics (as the Liberal model would have it). But as Dan says, stay tuned!