England’s Game Laws of the late seventeenth century prohibited ‘inferior tradesman, apprentices and other dissolute persons’ from ‘neglecting their trades and employments’ and presuming to ‘hunt, hawk, fish or fowl’.
The jurist Blackstone noted that one of the aims publicly adduced for the laws was conservation, or ‘preservation of the several species of these animals, which would soon be extirpated by a general liberty.’ But the statutes’ true purpose, he went on to say, was to prevent the landless lower orders from providing for themselves, independently of the market, by ‘pursuing, hunting and destroying’ game. These proscribed activities, where tolerated, had disruptive consequences:
[In] low and indigent persons it promotes idleness, and takes them away from their proper employments and callings; which is an offense against the public police and economy of the commonwealth.
Similar laws against gathering wood or picking berries deprived rural populations (long since ousted from family plots and open fields) of access to the remaining non-market sources of subsistence. Such measures thereby compelled those unendowed with assets, on pain of starvation, to hire out their capacity to work in exchange for a wage paid by propertyholders, or to otherwise rely on subvention or charity. The Black Act of the eighteenth century saw poachers executed for ‘doing injuries and violence’ to certain types of property, e.g. hunting deer or hares or extracting resources from trees, warrens or fish ponds.
Thus the king’s dominion over his imperilled deer and forests once helped to establish and solidify incipient capitalist property relations.
More recently, a similar purpose has been served by the declaration of marine sanctuaries for whales and other endangered creatures – following the creation of Exclusive Economic Zones, supposedly to prevent the ‘tragedy of the commons’ from depleting the scarce resources contained within. These have allowed enclosure of what previously was res nullius: international waters adjacent to a coastline but beyond any state’s territorial sea.
Just as occurred earlier with land’s terrestrial bounty, the sovereign’s claim over marine resources was a necessary first step, through which it became possible for a few private agents or entities to appropriate the commons as their exclusive property (while most others were thereby deprived of access or use). The expansion of national jurisdiction has also served the strategic goals of naval powers.
Since 1945 the high seas have gradually shrunk for most purposes besides navigation, with exclusive rights assigned and national bailiwicks extended over formerly open-access waters.
One of the Truman Proclamations of 1945 asserted ‘the long range world-wide need for new sources of petroleum and other minerals’, and ‘in the interest of their conservation’ declared ‘the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.’ (Offshore oil production in the Gulf of Mexico dates from 1947.)
Meanwhile the ‘urgent need to protect coastal fishery resources from destructive exploitation’ and depletion was the pretext used to ‘establish conservation zones in those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have been or in the future may be developed and maintained’. In these zones ‘fishing activities shall be subject to the regulation and control of the United States’, while the ‘character as high seas of the areas in which such conservation zones are established’ was preserved for navigation purposes.
Rögnvaldur Hannesson’s Privatization of the Oceans shows how the assertion by states of territorial rights was needed before private agents could acquire exclusive property rights:
[The] oceans are, or were, the last great commons. No single state used to have jurisdiction at sea outside a narrow belt, which as late as the middle of the twentieth century was only three nautical miles wide. Without a wider national jurisdiction at sea, it is hard to imagine how an economic institution such as property rights could have developed for any but the most stationery fish stocks. People who still have not reached the age of retirement have in their lifetime witnessed a revolution in the international law of the sea, by which states have gained control over fish resources off their shores. In the wake of this we have seen exclusive individual rights of access to fish resources develop.
[The] fisheries are but the last of the common property resources to which private property rights have developed; recorded history tells of enclosures and clearances of common land…
The enclosure of the world’s ﬁsh resources began as an attempt by states with rich ﬁsheries off their shores to extend their jurisdiction over these areas and to clear away foreign ﬁshing ﬂeets. This development was enormously stimulated by the claims to exclusive national rights to offshore oil and ended in the establishment of the so-called exclusive economic zone [EEZ]. Without this jurisdictional framework it would not be possible to limit fishing except by agreement among an indefinite number of states, an outcome that is none too likely.
Earlier this year Christopher Costello, Leah Gerber and Steve Gaines proposed in a Nature article that the creation of tradeable permits presents a ‘market approach to saving the whales.’ Establishing property rights would allow sustainable harvesting of whales just as transferrable quotas were promised to do for fisheries, and in the same way that GHG-emission permits were said to make pollution abatement possible.
Anti-whaling and conservationist groups would presumably have recoiled in horror from this policy suggestion. But these groups themselves are helping to build the mare clausum in which such property rights may be established (and naval pre-eminence pursued).
In recent years, for example, the Australian Greens and the Humane Society have cheered a federal court ruling that the waters adjacent to Australia’s (internationally disputed) Antarctic territory constitute part of Canberra’s (unilaterally declared and widely contested) exclusive economic zone. Within these waters, according to the court’s finding, may be applied the provisions of the Commonwealth’s Environmental Protection and Biodiversity Conservation Act, enacted in 1999 under the Howard government. This decision meant that Canberra could legitimately enforce its domestic laws against non-nationals to whom flag-state jurisdiction had previously applied.
In 2012 Greens parliamentarians even sought to have Japanese-owned whaling vessels denied freedom of passage through international waters outside both Canberra’s territorial waters and its contiguous zone. They denounced navigation through Australia’s EEZ/whale sanctuary as an ‘unwelcome intrusion’ against which the federal government should ‘take action’. Leader Bob Brown proposed legislation under which patrol boats would guard against the ‘invasion of Australia’s sanctuary’, including in energy-rich Antarctica.
The principle that the world’s oceans are not susceptible of appropriation by any state or private party has been voided by technological advance and junked by all notable political actors, from governing elites to environmental activists. This involves several matters of deep practical significance.
In Privatizing the Oceans, Hannesson presents the excision of EEZs from the high seas as a matter of routine upward progress: an enlightened dissolution of the commons, of a type familiar from recent history, allowing the venturesome lurch of capitalist property forms into yet another new frontier. The division of the high seas between national jurisdictions, on this argument, achieves something like the erection of barbed-wire fences on nineteenth-century pastures and prairies. Delineating ‘well-defined’ property rights to the world’s oceans is just the latest application of capitalism’s universally efficient solution to the problems of scarcity and resource depletion.
In reality, the carving out of EEZs from international waters, by sequestering raw materials and partitioning markets between territorial states, is something of a regression to pre-1945 arrangements involving fragmented zones of nationally-based access and operations.
It’s well-known that the international legal principle of freedom of the high seas was advocated by Grotius just as the Dutch East India Company (along with English and French merchants and navies) sought to penetrate marine routes monopolized by Portuguese and Spanish traders. And in 1918 the second of Woodrow Wilson’s Fourteen Points was the demand for ‘absolute freedom’ of navigation outside territorial waters – something immediately rejected by the other great naval powers, eager to maintain their colonial privileges. The 1930 League of Nations Conference for the Codification of International Law, held in The Hague just as the world economy began fracturing into autarkic blocs, granted states legal authority over territorial seas, subtracted from the high seas: ‘A State possesses sovereignty over a belt of sea around its coasts; this belt constitutes its territorial waters.’
From 1945 the Atlantic Charter and postwar GATT allowed the US to break down the old international system of exclusive economic zones. The latter had of course been established during the high-colonial era, when the ruling great powers granted their firms sole rights of investment in colonized territory, with fractured markets protected against competitors by customs barriers. Such restrictive arrangements, which prevented ‘access on equal terms’ to the ‘trade and materials of the world’, were later forbidden by multilateral treaty agreements such as the WTO.
Yet the terms of the UN Convention on the Law of the Sea (to which most states had granted ‘customary’ recognition if not ratification by the 1990s) re-created just such discriminatory barriers. Under its provisions, coastal states are held to possess, within their EEZs, ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds…’
With respect to fishing:
The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements… give other States access to the surplus of the allowable catch.
The Convention on the Continental Shelf assigned rights over ‘the mineral and other non-living resources of the seabed and subsoil’. It came into force in 1964, in time for North Sea oil and gas to be divided between the UK and Norway:
The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources… The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal state.
The previous absence of clear demarcation had led to international skirmishes like the Cod Wars. While attribution of rights and jurisdiction through EEZs now deters similar low-level conflicts, it also elevates contests into a winner-takes-all matter. In a world divided into territorial states – each with the power to claim as revenue a portion of the surplus product extracted within its borders by privately-owned production units selling goods and services for profit – such disputes become a cause for strategic conflicts that inevitably are militarized.
This is true, above all, for marine areas containing hydrocarbon reserves, once offshore and later deepwater exploration and production became technically feasible and profitable. Firstly, the amount of capital tied up in the fixed investments required for oil and gas production (especially offshore) is huge and has correspondingly long turnover times. The (political, diplomatic, price, etc.) stability required to make such undertakings economically feasible demands a nexus of oil industry and state leadership. Secondly, and more crucially, the indispensable strategic and military worth of oil (e.g. the possibility of wartime interdiction) makes maritime zones containing energy reserves into grand strategic prizes. They are worth the price of diplomatic incident and military standoff to attain (though again, mostly for public consumption, such conflicts are usually presented as arising from disputes over ‘sustainable harvesting’ of fishing stocks).
Matters concerning oil supply bring into relief the impossibility of a peaceful alliance of global states and propertied classes for the joint exploitation of the world. They also make plain the purpose and consequences of dividing the oceans.
For example, in the Sea of Okhotsk there is a small enclave of the high seas (the so-called ‘peanut hole’) surrounded on all sides by waters falling within Russia’s EEZ. During the 1990s Moscow proclaimed a moratorium on all fishing within the enclave (which was mostly conducted by Japanese-, Chinese- and South Korean-owned vessels). It then enforced the ban by staging military manoeuvres and surveillance, effectively excluding fishing fleets. Around the same time the Russian government signed a production-sharing agreement with various oil majors to allow offshore oil and LNG extraction; production off Sakhalin began in 1999. In 2006 Shell was forced to sell its stake in the consortium to Gazprom, after Moscow threatened to revoke operating permits, using environmental violations as a pretext.
Meanwhile the publicly-stated purpose of US maritime strategy is to employ military assets to ‘deter the ambitions’ of regional competitors:
Today, the United States and its partners find themselves competing for global influence in an era in which they are unlikely to be fully at war or fully at peace. Our challenge is to apply seapower in a manner that protects U.S. vital interests…
Expansion of the global system has increased the prosperity of many nations. Yet their continued growth may create increasing competition for resources and capital with other economic powers, transnational corporations and international organizations. Heightened popular expectations and increased competition for resources, coupled with scarcity, may encourage nations to exert wider claims of sovereignty over greater expanses of ocean, waterways, and natural resources—potentially resulting in conflict. Technology is rapidly expanding marine activities such as energy development, resource extraction, and other commercial activity in and under the oceans. Climate change is gradually opening up the waters of the Arctic, not only to new resource development, but also to new shipping routes that may reshape the global transport system. While these developments offer opportunities for growth, they are potential sources of competition and conflict for access and natural resources.
Credible combat power will be continuously postured in the Western Pacific and the Arabian Gulf/Indian Ocean to protect our vital interests, assure our friends and allies of our continuing commitment to regional security, and deter and dissuade potential adversaries and peer competitors.
From 1945 Washington became the dominant naval power in the Pacific Ocean. And now, invoking Wilson and Grotius, US diplomats such as Hillary Clinton routinely assert a ‘national interest’ in defending ‘freedom of the seas’ and unimpeded navigation in the region, especially in the South China Sea, Yellow Sea and Sea of Japan. Since 1979 the US Navy has conducted what it calls a Freedom of Navigation program. This involves practical demonstrations of might, whereby US military vessels deliberately detour into waters over which coastal states (such as China and Iran) assert a ‘security jurisdiction’ (i.e. in which they request prior notification of transit, and authorization for exercises, by military vessels). Washington asserts the right to conduct military surveys, manoeuvres and reconnaissance within the Chinese EEZ. Beijing rationally regards intelligence gathering within its coastal waters as preparation for armed conflict, and declares itself authorized to prohibit such activity as prejudicial to its security.
These practices betray the reality obscured beneath the rhetorical ploy. Washington – with the aid of its chief military allies in the Asia-Pacific region, Canberra and Tokyo – now plays the old role of the established European powers in the Atlantic, seeking through rampant bellicosity to maintain naval pre-eminence against a rising commercial and strategic competitor. Its partners seek to uphold Washington’s global reach, and thereby their own interests, against the expansion of Beijing’s regional naval prerogatives.
A document prepared for the Royal Australian Navy’s Sea Power Centre for maritime research presents a public version of Canberra’s objectives:
There are a number of ways in which an increasingly restrictive navigation regime internationally might affect Australian interests. First, ADF ships, submarines and aircraft might find their access to certain areas of the ocean and super-adjacent airspace becoming restricted or subject to unacceptable limitations. Prior entry notification, navigation on the surface for submarines, and the restriction of international straits and ASL are not currently permissible at international law, and would limit the ADF’s operational effectiveness throughout the region. It could also impede the transit of allied navies in times of heightened tension or armed conflict, also hampering the efforts of coalitions of which Australia is a part.
In fact, Canberra itself violates the UNCLOS on unimpeded passage through international shipping channels, having imposed a system of compulsory pilotage for movement through the Torres Strait.
Similar strategic objectives to those held by the US governing elite were at work when, in 2004, Canberra announced creation of a Joint Offshore Protection Command (now Border Protection Command) comprising ADF and Customs personnel. Along with patrols centred on the energy-rich Timor Sea and the northwest coast abutting the Indian Ocean, the BPC was to oversee a Maritime Identification Zone, covering all vessels passing within 1000 nautical miles of Australian coastline. This would oblige all vessels seeking to enter Australian ports, as well as those merely having strayed inside the Australian EEZ, to provide Australian authorities with information regarding location, speed, crew, cargo and course of transit. International law provided no basis for imposing such requirements on foreign-flag vessels. The area involved stretched into the territorial waters of Indonesia, Papua New Guinea, East Timor, New Zealand and New Caledonia.
Meanwhile Anthony Bergin and Sam Bateman from the Australian Strategic Policy Institute have described some of the strategic issues underlying Canberra’s claims to Antarctic territory, including its adjacent waters and extended continental shelf.
In such circumstances, by demanding the expansion of Canberra’s maritime jurisdiction outside its territorial waters, and by providing pretexts under which this bailiwick might be enforced by military patrol boats, the Australian Greens (and environmental activists) present the national state as having a ‘progressive’ mission in world affairs, as being (potentially) an instrument of the angels. This fanciful vision is possible because, regarding political divisions over matters concerning fisheries management in the Australian EEZ, the Greens obscure the underlying questions of property relations and imperial rivalry that dwell beneath superficial disputes over morality. They thereby contribute once again to bestowing Canberra’s regional ambitions, and its all-but-certain participation in future military conflict between nuclear powers, with a degree of popular legitimacy and a ‘progressive’ sheen.
Tags: Australia, Australian Antarctic Territory, Australian Greens, Australian Whale Sanctuary, China, Exclusive Economic Zones, fisheries management, law of the sea, Southern Ocean Sanctuary, UN Convention on the Law of the Sea, United States