Egoism on the High Seas

[Ríán Derrig is a Postdoctoral Fellow at the Sasakawa Global Ocean Institute of the United Nations World Maritime University, Malmö.]

In late August 2022 delegates from around the world convened at UN Headquarters in New York to agree a treaty. The treaty could protect biodiversity in ocean areas beyond national jurisdiction – the ‘high seas’ – and redistribute ocean resources. This was expected to be the last of five sessions of an intergovernmental conference (IGC5) that had opened in 2018 (the BBNJ process). But the session ended with no agreement.

What happened? Discussions in which compromises were sought outside the plenary have been subject to the Chatham House Rule and many observers are vague about the positions of States. This intransparency, as well as the dearth of media attention directed towards these negotiations, has become a topic of conversation. Some observers, notably Greenpeace, have expressed their frustration by identifying States they perceive to have been responsible for the failure of IGC5.

We can only speculate about the particular issue (if any) upon which the break came, but from commentary on the entire IGC to date it is clear that among the issues that has proved intractable has been a position taken by the US and EU Member States that aimed first to avoid, and most recently to limit requirements the treaty would place on them to redistribute profits made through exploitation of Marine Genetic Resources (MGRs) to States without the same technological and economic means. MGRs are now considered a valuable commodity, especially for pharmaceutical purposes. The same States also sought minimal provisions concerning Environmental Impact Assessments (EIAs), in opposition to a regime advocated by G77 States that would entail significant international oversight of activities undertaken in ocean areas beyond national jurisdiction. This EIA process could have implications for commercial activities including seabed mining, the commencement of which draws ever closer under the dubious supervision of the International Seabed Authority. These positions are summarized here.

A pattern can be discerned whereby wealthy States that host private companies with the technological and economic means necessary to exploit difficult to access ocean resources have tried to avoid treaty provisions that concretely specify requirements to transfer wealth to States without those means, as well as provisions that internationalise and make more stringent oversight processes like EIAs. Greenpeace has said the USA, Canada and the EU are motivated by greed, “prioritizing hypothetical profits from Marine Genetic Resources over protecting the oceans.” Speaking at the United Nations Ocean Conference in Lisbon in July 2022, UN Secretary-General António Guterres said the greatest obstacle to efforts to finalise this treaty was “egoism”: “…Some people still think they are powerful enough to think international waters should be theirs.”

A history of egoism

This negotiation has been shaped by an older debate. The Third UN Conference on the Law of the Sea took place against the backdrop of a broader attempt to construct a New International Economic Order. Significant parts of the treaty that was the outcome of that conference – the 1982 United Nations Convention on the Law of the Sea (UNCLOS) – reflected this, in particular Part XI, the seabed regime. Resources mined in seabed areas beyond national jurisdiction were the ‘Common Heritage of Mankind’, and profits from such mining were to be redistributed through an internationalised process specified in the text (for background see this EJIL symposium, and the work of Isabel Feichtner and Surabhi Ranganathan more broadly).

The BBNJ negotiations have seen the reanimation of the Common Heritage of Mankind principle, with G77 States arguing this principle should underpin the entire treaty, especially provisions concerning MGRs. The US opposes this principle. Instead, it argues that on topics like MGRs the treaty should reflect the principle of the ‘freedom of the high seas’ and favors broad provisions that offer as much interpretive space as possible. This is a ‘freedom’ for those with the economic and technological means to exploit it. The practical result of this argument is a ‘high seas’ space constructed through law by a specific constellation of economic and naval power, from which most of the world’s population is practically excluded.

This is not a novel US position. Writing in 1958 prior to the opening of the First UN Conference on the Law of the Sea, the American international lawyer Myres McDougal wrote of ‘Crisis in the Law of the Sea: Community Perspectives versus National Egoism’. McDougal said the egoists were States making what he thought were expansive claims to jurisdiction over sea areas adjacent to their territories. He opposed those claims to a ‘community perspective’ cognizant of the importance of protecting the “relatively unhampered use (of the oceans) by all”. For McDougal, this ‘community perspective’ viewed the US navy as a stabilizing presence and prioritized its freedom to navigate.

As I show in my forthcoming monograph, International Law and the Democratic Character: An Intellectual History of the New Haven School (Oxford University Press), McDougal’s was a style of argument that became common in the postwar field of US international law scholarship. It was an approach to legal interpretation that departed from a suspicion towards purported formalisms, arguing law must be interpreted as a function of a social and empirical ‘reality’ ever in flux. This was a specifically American tradition of anti-formalism, descending from the classical pragmatists’ progressive turn of the century critique of metaphysical absolutes and transcendental value orders. Deployed in postwar international law debates it became something reactionary, as McDougal and others looked behind legal concepts to find a ‘reality’ constituted by the self-understanding and values of the US.

From McDougal’s 1958 article through to the position of the US this August, this anti-formalism can be found at seminal treaty making moments, supporting US positions in favour of malleable textual provisions. It is telling that when negotiation began in 1990 on a supplementary agreement to UNCLOS to satisfy objections of “the major industrialized States” it was framed as an interpretive act, an agreement “relating to the implementation of Part XI” … “to be interpreted and applied together [with UNCLOS] as a single instrument…”. UN Secretary-General Javier Pérez de Cuéllar noted a social and empirical reality in flux supported this interpretive act. Since the 1970s: “The general economic climate had been transformed as a result of the changing perception with respect to the roles of the public and private sectors. There was a discernible shift towards a more market economy.” Notwithstanding, the US failed to ratify.

There are alternatives to this practice of looking behind legal texts to find a reality shaped by ideologies of powerful States. At these same moments a formalist tradition can also be found, departing from the belief that textual agreements between States can be specific and clear enough to require parties to do specific and clear things. That law can be used to create obligations to make transfers, for example, of dollars or metric tons of nickel that are not open to interpretation and should remain immune to variables like ‘the general economic climate’. During the BBNJ negotiations this latter tradition has undergirded positions of existential significance for States threatened by climate change, stakes Samoan Deputy Permanent Representative Matilda Bartley made clear when addressing the closing plenary of IGC5 on behalf of the Pacific Small Island Developing States Group.

Does a progressive US foreign policy entail international redistribution?

Concurrent though unrelated to the negotiation of this new treaty, a welcome effort has recently been made on the US political left to advocate a foreign policy of non-intervention and ‘restraint’. Writing on ‘Left Internationalism in the Heart of Empire’ Aziz Rana recently asked:

“How can we challenge the current global system in which a small number of wealthy actors—whether in the United States, Europe, or China—enjoy a monopoly over the terms of the global commons? […] the structure of international relations is the water within which domestic political struggles swim. The options available today for U.S. communities are bound to international frameworks that took hold in the past—like how domestic neoliberal entrenchment is fundamentally joined to the 1970s American and European repudiation of nonaligned and Third Worldist ideas of a shared global commons. A political agenda for altering that overarching structure is essential for all freedom projects at home.”

At the same time, the responses to Rana make clear that the priorities of this movement towards a left internationalism remain much debated. While the movement is certainly accompanied by a much-needed national redistributive agenda within the US, it is not obvious that Rana’s view that this entails international redistribution is widely held. US egoism on the high seas could be a welcome test.