Law and the Deep

Anyone crossing the Pacific Ocean between Hawaii and Mexico will find themselves, for a very long time, above the Clarion-Clipperton Zone. This fracture zone, which is the size of Europe, is known for its manganese nodules running as a belt through large parts of the seafloor at a depth of 4000 meters. At first glance the nodules look like burnt cauliflower. They lie on the seafloor, blackish and shimmering, and grow at a breathtakingly slow rate of a few millimeters over the course of a million years. Darkness and silence envelop the nodules as well as ghost octopuses that lay their eggs in them.

Yet, that profound silence could be coming to an end: the nodules are full of valuable and hotly contested metals. Caterpillar-like vehicles might descend to the ocean depths to harvest the nodules and bring them up to the surface. So far not a single one of these harvesters has cut a swath through the seabed. But if certain states and private companies have their way, it is only a matter of time before the seabed and its highly complex ecosystem are churned up by these machines.

For Surabhi Ranganathan, Professor of International Law at the University of Cambridge, the manganese nodules are more than just a raw material. Rather, behind the nodule’s handling, we find whole stories about the Cold War, decolonization, international law – and what Ranganathan calls our imagination of the ocean. Studying the history of the nodule and its legal regulation opens the door to radically different visions of the world which range from liberal ideas of global competition, to socialist dreams of just cooperation, through to libertarian utopias of state-free civilizations.

Ranganathan grew up in Delhi – “very, very far from the ocean”. So it wasn’t some early proximity and affinity to the ocean that led her to the law of the sea but rather her interest in large-scale multilateral conferences and the negotiation of international treaties. After studying in Bangalore and New York, Ranganathan earned her doctorate at Cambridge with a thesis on conflicts in international treaty law. It was during this time that Ranganathan recognized that international law was the twentieth century’s most important arena for competing visions of the ocean. The onset of decolonization not only changed the land map but the ocean’s cartography. At a total of three major international conferences (UNCLOS I, UNCLOS II, UNCLOS III) which led to the 1982 United Nations Convention on the Law of the Sea, the newly independent states of the Global South emerged as self-confident and well-organized in putting forth their revolutionary demands. Whereas international law had hitherto been regarded as the Global North’s instrument of hegemony, deeply shaped by colonialism, the UNCLOS conferences were seen as an opportunity to end the North’s dominance and promised to usher in a new era of international law. Particularly with regard to the seafloor, the G77 called for revenues from deep-sea mining to be distributed both globally and equitably. The seabed should not be exploited by private mining companies but – at least primarily – by a joint international mining company called the Enterprise. The Enterprise was to be given a monopoly on deep-sea mining, equipped with the financial and technical firepower of the community of nations, and subject to the supervision of an international authority. Even though the Enterprise has not yet seen the light of day, Ranganathan believes that the idea shows how international law might have developed.

And this brings us to the heart of Ranganathan’s research project at the Wissenschaftskolleg. It goes by the name “Fantastic Oceans” and is shaking up some basic assumptionsof the law of the sea. Ranganathan’s point of departure is the notion that how we think about the ocean is in great part pre-structured by law. Whether it be the “freedom of the seas” or the ocean as a “resource,” neither of these ideas is natural but the result of specific historical constellations. Ranganathan again instances the manganese nodule, whose potential for the world economy also electrified delegates to the UNCLOS conferences. While the deep sea was long imagined as an open hunting ground that could be used by all states largely as they saw fit, the promise of the nodule suddenly led to the deep sea being thought of as an investment space and thus as a realm that must be secured and ordered by legal title. As a result of this shift in view, the famous legal principle of the deep seabed as a “common heritage of mankind” eventually emerged to guide the exploitation of manganese nodules and other resources – a principle that, according to Ranganathan, on the one hand enriched international law but on the other hand remained entrenched in the view of the ocean as a resource to be exploited. By contrast the view of the ocean as a “wonderful environment” to be valued and studied but also feared, rather than exploited, has not inscribed itself in law.

Ranganathan is particularly fascinated by lacunae in the law of the sea. In national constitutional processes there is always good documentation as to which voices and ideas clashed, who was outvoted and passed over, and how alternative ideas of constitutionalism looked like. The law of the sea, on the other hand, is clouded over by a liberal narrative that obscures our view of alternative visions. But where to find those alternative visions? Where to find what Ranganathan calls the “gaps and silences” in the law?

Partly, Ranganathan’s search for clues leads to sources that are well known to legal historians. These include books and articles written about the UNCLOS conferences, and one of these which she regularly takes to hand is a two-part article which appeared in The New Yorker in 1983. Such source-material throws an interesting light on matters, to be sure, but in reading Ranganathan was struck by something. Although UNCLOS III was a mega-conference with more than 5000 participants that lasted for many years and brought together an immense number of interest groups, political movements, corporations and NGOs in addition to 150 states, the picture painted of the conference by her various sources was very much the same – the same crucial moments, dynamics and personalities were always singled out. Positions of the Global North were presented in a nuanced and contextualized way; the Global South, on the other hand, was depicted as an abstract mass divided into “moderates” and “radicals”. Such representations not only hinder our understanding of the genesis of the UN Convention on the Law of the Sea but also cut us off from ideas and argumentative resources that could still be useful today.

Ranganathan thus argues that if we want to uncover the counter-narratives which have been deposited like sediment beneath the layers of the dominant UNCLOS historiography, we must perforce reorient ourselves. Such an epistemic broadening of our gaze involves, first of all, taking those conference delegates from the Global South seriously as legal innovators. For example the notion of the Enterprise as an international monopoly on deep-sea mining was quickly and unequivocally rejected as part of the “radical” bloc, even though little is known about its concept as well as genesis. Similarly, major international conferences such as UNCLOS III should not be understood merely as instances of liberal multilateralism, where sovereign equals sit around the table and negotiate, but as places whose very procedures, routines and rituals help determine which knowledge does or does not prevail. Speech cultures, staffs, working forums – all these have an impact on just what becomes international law. Finally, the biographies of delegates might also help us to understand how the ocean is imagined in law beyond the dominant grand narratives. For example there is Paul Bamela Engo, a diplomat from Cameroon, whom Ranganathan has placed at the center of a work produced at the Wissenschaftskolleg. Engo has been portrayed in the press as a heavy-handed negotiator. According to the 1983 New Yorker article for example, he lacked both depth and effectiveness. Ranganathan suggests that such judgments do an injustice to Engo’s complexity and the way UNCLOS III was adroitly utilized by delegates from the Global South. Engo was many things: pan-Africanist, internationalist, Third World advocate, and supporter of anti-colonial liberation movements while also being part of an increasingly authoritarian post-colonial state apparatus. Moreover, he was a lawyer who knew how to skillfully exploit the rules and rituals of international diplomacy while simultaneously subverting them. Thus, Engo’s biography is one of many lenses through which the counter-narratives of the Global South in international maritime law can be perceived and understood.

Although Ranganathan’s view of the conference halls of international maritime law is chiefly of a (legal-)historical nature, she is also concerned with the future because the ocean has always been the object of people’s utopian visions and other imaginative projections. For example in 1967 the Maltese diplomat Arvid Pardo, in a speech to the United Nations that lasted several hours, envisaged an ocean where humanity would cultivate the bulk of its foodstuffs and where dolphins would herd schools of fish as “shepherd dogs of the ocean.”

Today the visions are different. Libertarians and tech investors are employing the ocean for their technocratic mind games – like their notion of floating modules that will free their inhabitants from the legal and political ties of the nation-state world. Whether in socialist-inspired forays from the Global South or late-capitalist plans for libertarian archipelagoes, when it comes to the ocean our human fantasy thus always played an important role. It is no accident that the international company which was to monopolize deep-seabed mining was dubbed the Enterprise, says Ranganathan at the end of our conversation, for it was deliberately named after the eponymous spaceship from the “Star Trek” television series of the 1960s. The USS Enterprise not only explored the infinite expanses but was visionary, internationally staffed – and had set forth on its voyage in the interest of all mankind.