Towards Blue Justice: Common Heritage and Common Interest in the Maritime

Peter Sutch, Cardiff University

The importance and complexity of our political, economic and environmental relationship to the sea makes the evolution of a contemporary normative vision of the maritime essential. We need Blue Justice for the blue economy and for the increasingly contentious politics of the maritime. In this blog I want to make a plea for a renewed political theory of the Maritime – A second Grotian moment that generates a Mare Iustitia rather than a Mare Liberum.

In a recent and fascinating piece on this website, Barry J. Ryan urged a critical engagement with the sea and its architecture of freedom and argued persuasively for a normative vision for the sea. Because readers of this blog will have access to that work I want to start there and begin to outline the contours of blue justice. Barry Ryan took the tensions between the freedom of the sea and the idea that the sea is the common heritage of mankind (as well as our outdated distinction between politics on land and politics at sea) as the starting point for his critical and normative argument. He also showed how powerful states carve up this common heritage securing for themselves, rather than mankind, the commercial and military benefits of our common freedom of the sea. We can learn a lot from this – we clearly need normative principles that encourage us to pursue activities in the maritime with at least some concession to the common good. But the foundations of blue justice are such that determining the common good is even more complex than this suggests. The multiple and fragmented legal frameworks that apply to the sea divide the maritime as much as the freedom grabbing of littoral states.

Only the idea of blue justice can help

Both Mare Liberum and the common heritage of mankind have their roots in natural law but in their modern iterations are refined, compromised and reordered by normative orders created by fragmented, positive legal frameworks that reject assumptions of inexhaustibility, respond to new military and commercial technologies and draw on distinctive normative principles inherent in human rights and environmental law (among other regimes). While the rhetoric that hails UNCLOS as the constitution of the oceans is common the reality is that the maritime is ordered by a broad range of legal frameworks that are not disciplined either by a constitution or by a shared, natural, moral law. Yet the need for a shared normative vision is, as Barry Ryan argues, palpable and only serious engagement with the idea of blue justice can help. Perhaps the simplest way of exploring this is to look at the common heritage idea and its relation to other key maritime norms.

The deep seabed: How normative understandings have evolved

The answer to the question ‘how ought we to govern the sea?’ has changed significantly over time in response to distinct sets of normative pressures. The question is still being asked and we can get a sense of the key elements in play in discussions about blue justice by looking at these pressures and at the ways we respond to them. Most people interested in the maritime are familiar with the speech Arvid Pardo made to the UN General Assembly. His vision of establishing the deep seabed as the Common Heritage of Mankind drew on security concerns that might arise from situating weapons systems and of the conflict that might arise from a ‘scramble’ for the riches and strategic advantages of the ocean floor. The scramble metaphor also reflected the concern that the rich, technologically developed states might attempt to secure these advantages for themselves to the detriment of the developing world leading to a renewal or enhancement of colonial political inequalities.

Deep Seabed Governance: A fascinating legal fabric

The institutional fabric of part XI of UNCLOS III, that section that deals with the exploitation and distribution of benefits of the resources in the ‘Area’ – the deep seabed beyond national jurisdiction – and that declares those resources the common heritage of mankind remains fascinating. The initiative that led to it, drew on still broader principles from those groups of states pursuing a New International Economic Order, and those promoting capitalist and broader socialist agendas. The idea that management of this global commons would require a governing body (the International Seabed Authority) and a more technical arm, (the Enterprise) that would oversee commercial activity, require site-banking and technology transfer in order to safeguard the needs of less technologically developed and landlocked states as well as future generations is one of the most innovative regimes in international law. But the story of the emergence of the Area and the Common Heritage of Mankind is one that sits next to other normative pressures. The redevelopment of Part XI of the treaty in the 1994 New York agreement reflects precisely the tensions that Barry Ryan identifies as key. Major seafaring nations including the USA, the UK and Germany, refused to accede to the treaty unless Part XI was significantly revised and the common heritage principles considerably watered down.

Legal fragmentation and the broader normative context

Normative pressure has also come from outside the treaty framework. We see this firstly in the fragmentation of global commons regimes. The Outerspace Treaty, and the decision to treat space, the moon and other celestial bodies as the common province of mankind, alongside the failure in real terms of the attempt in the Moon Agreement to redesignate space as the common heritage of mankind is instructive here. The vision of Ambassador Pardo and of Ambassador Cocca (who thought space law could herald a new ius humanitatis) was frustrated by the decision to treat commons regimes as inherently separate or sui generis rather than as commons law more generally. This is acknowledged as a significant weakness in commons governance and one of the many things that allows the most technologically advanced states to push against the common weal. And it is not just commons law that is fragmented. Even the law governing the Area is constituted by regimes that work against each other. For example the tensions between the rules governing the bioprospecting in the deep oceans and those governing mining around the hot vents where we find both the richest biodiversity and much of the mineral wealth of the seabed appear in deep tension. If we move beyond the Area to the maritime more broadly we find a complex of applicable regimes at the international level (Hague and Geneva law, human rights law, environmental law, WTO law – especially TRIPs rules) that sit awkwardly with UNCLOS at times and in flat contradiction to its ordering principles at others. At the regional level we see still greater diversity with some regimes supporting the underlying common heritage principles of UNCLOS (take the African Integrated Maritime Strategy as an example) and others seeking, as Ryan shows, to secure their own freedom of the seas.

It is time for blue justice

So how do we begin to think about Blue Justice? What might a normative or constitutional framework for the maritime look like? The idea that we might establish a hierarchical common heritage regime that establishes a ius humanitatus is fanciful. But, the key is the recognition that despite fragmentation in legal regimes and between jurisdictions and exclusive economic zones we do have a common interest in a well-ordered maritime. A just blue economy is essential for sustainable development and for distributive justice within states and between richer and poorer states. Concern for fisheries has to make space for concerns with free navigation or cable laying. Mining and bioprospecting needs to make space for environmental protection. The prospect of significant resource gains for some from our common spaces needs to take account of the rights of all (including the human rights of future generations).

In the intersection between these fragmented legal orders and maritime governance is a set of community interests that speak to our common interest in the maritime and to our common humanity. The application of human rights and humanitarian law to those who work on (or seek refuge in) or near the sea and the purpose of principles of sustainable development and environmental governance is to recognise these common interests that exist in a fragmented and heterarchical order and the reach of the importance of the maritime to humanity as a whole. While the common heritage ideal of Pardo and others was a bold, even unique experiment in international law the core motivating idea – that the maritime is a space of common interest and common humanity – does not fade away with the pressures that shaped the debate over the original common heritage regime. Instead, human rights and environmental sustainability pick up the baton of our community interest in the maritime to offer us the foundations for blue justice. The maritime, in all its fragmented complexity, does more to emphasise the concept of common humanity found in international law, sustaining the normative importance of universal jurisdiction, shared responsibility, distributive and intergenerational justice more than any other regime. As such it is once again at the forefront of thinking about global justice. A modern normative vision for the maritime must pick up on these threads and craft a conception of blue justice from these materials.

Justice is not something we discover, it is something we create. We create it by talking about it, we constitute it in our work. The beginnings of blue justice will be found in the practise of those who emphasise our common interest in all aspects of maritime governance. But we must not just focus on the distribution of our ‘common heritage’ or on the ‘community interests’ inherent in human rights. We must not only emphasise humanity’s ‘common concern’ in the protection of the environment or the ‘global partnership’ at the heart of the post 2015 sustainable development programme. For each of these iterations of the common interest exist in separate frames. A plea for blue justice is a plea to take the common wherever we find it and place it at the centre of our practise as the constitutional or ordering principle. Our common interest is everywhere in the maritime yet we build barriers to working in service of the common interest even as we attempt to create rules to help us realise it. If blue justice is the basis for our shared normative vision then, in the words of Grotius as he introduced his Mare Liberum to the rulers and peoples of the free and independent nations in 1608, ‘we leave to your sense of righteousness and of fairness what you ought to think about this matter and what course of action you ought to pursue’.

About the Author

Peter Sutch is Professor of Political and International Theory in the School of Law and Politics, Cardiff University. He is the author (with Edwin Egede) of The Politics of International Law and International Justice (Edinburgh 2013) and with Peri Roberts The Global Commons: International Politics from Sea to Space (Edinburgh 2017 forthcoming)

References and further reading

König, Doris (2008) ‘Genetic Resources of the Deep Sea — How Can They Be Preserved?’ In König, D., Stoll, P.-T., Roeben, V., Matz-Lück, N. (Eds.),  International Law Today: New Challenges and the Need for Reform? Springer

Okereke C (2008) Global Justice and Neoliberal Environmental Governance, Routledge

Roberts P and Sutch P (2015) ‘The Global Commons and International Distributive Justice’ in Boisen and Murray (eds) Distributive Justice Debates in Social and Political thought: Perspectives on Finding a Fair Share, Routledge

Ryan, Barry (2017) International Relations must challenge the freedom of security at sea, http://piracy-studies.org/international-relations-must-challenge-the-freedom-of-security-at-sea/