Global warming sparks huge new commons controversies. Who owns the newly emerging Northwest Passage? Who can claim Antarctica's mineral riches?
| by Kathryn Milun
New territorial claims on islands and sea-routes emerging as the Arctic icecaps melt might make you laugh if you could forget the last 500 years of Euro-American expropriation and colonization. (See “ Arctic Ice Melts Create New Land Rush” by Robert J. Miller, May 7, 2007.) With global warming we have a ludicrous display of national patrimony along with the usual international theft. Denmark, Canada and Russia are dispatching warships to hoist flags on frozen tundra. Bottles of brandy have been buried as proof of discovery and claim. The U.S. is also making claims in the region on behalf of an international community eager to see the emerging waterways as “neutral,” open access global commons whose assets are ready for the taking by First World nations and multinational corporations. Folks, what is this nonsense of flag raising and bogus international commons all about?
In the wake of global warming there is a vast water and land grab now taking place under the guise of international law. Who are the rightful owners of the right-of-way, resources, and wealth potential now surfacing along with the disastrous effects of global warming in the Arctic region? Can the legal tradition of a global commons be invoked at the international level to secure justice in this new domain?
Yes, commons is the right vocabulary with which to sort out property rights and potential income streams to come from the Arctic melt. But not the commons as we know it today in international law. Not the “neutral,” open-access global commons that the U.S. is asserting against the proprietary claims of the Arctic’s contiguous nation-state neighbors. The U.S.-proposed global commons merely extends a wrong turn we global citizens unwittingly took in the 1970s when northern nation-states hijacked the legal reform process meant to create a fairer global commons on the open seas. In the end, the industrial North simply updated the colonial law of the seas to accommodate new technology that allowed them to extract fish and minerals and dump garbage at an industrial scale.
A “neutral,” open-access commons indeed!
What was happening in the 1970s around the law of the seas is instructive with regard to what is now happening in our deeply threatened Arctic north. Thirty-some years ago, the call to revise the law of the seas came when nation states began enclosing the ocean commons by claiming hundreds of miles of extensions from their shores as Exclusive Economic Zones, precisely what Canada, Denmark, and Russia are doing in the Arctic today. Straits and traditional rights of passage were being claimed as national jurisdictions. Unlucky inland nations complained. In many powerful quarters there was talk of a threat to global mobility and security.
During the debates about how to reform the law of the seas, the nations of the global South tried to avert the wholesale theft which the industrial North aimed to sanction. They did this by proposing that international waters be subject to the Common Heritage Principle. They wanted that principle to be invoked so that the wealth from minerals mined from the deep-seabed, which they saw as a form of common property, would be shared among all countries. This common wealth, they argued, should be predistributed to all rather than redistributed as a taxable percent of the profits made by those individual countries or corporations who had the economic means to buy the necessary equipment for mining. The global South even proposed that the U.N. create its own mining corporation that would operate as a trust to distribute common wealth as needed. In the end, the southern states lost and the Common Heritage Principle did not find its way into the laws governing technologically opened arenas of the emergent global commons.
Thus these global commons remain “neutral,” open-access commons. They are commons that reflect the interests of corporations and northern nation states who possess the technology for large-scale fishing, mineral extraction and garbage dumping on the high seas. (Up until 1993, the U.S. and Britain were two of the more vociferous protectors of the right to dump their low-level nuclear waste from energy, medical and military activities in international waters. It was only thanks to Greenpeace’s steady campaign of direct and other action that an international regulatory treaty banned this.)
The Common Heritage Principle was also raised by the international legal community when debating another area of the global commons, the moon. The Moon Treaty stipulates that minerals mined from the moon are the common property of all. But the Moon Treaty was never ratified by the U.S. or other space-faring nations. The U.S. and other non-signatories rejected the Common Heritage Prinicple, instead proposing that the. the Moon be governed as the “common province of all mankind.” Heritage versus Province. The later evokes the sense of a geographically extensive empire whose provinces would be under a centralized command. The Common Heritage Principle, on the other hand, connotes a temporal dimension to the commons: commons as domains whose wealth and well-being would be inherited by future generations.
The language that the U.S. uses to describe today’s global commons in the Arctic is coming from the law of the seas. But the international law of the seas has, in fact, done a great deal of damage to the idea of a just commons in the contemporary global order. As many international legal scholars would tell us, the high seas remain in a state of virtual lawlessness, without an effective governing regime. (I have discussed this in an earlier blog post.) They remain “neutral,” open-access global commons.
There are many reasons why the “neutral,” open-access commons described in the law of the seas should not become the model for emerging global commons domains like the internet or the Arctic region. At bottom, the modern maritime model confuses common property (res communis, things held in common) with open access (res nullius, things belonging to nobody, and therefore open for everybody [who can] to take). This is a general and extensive mistake in twentieth century economic writings on commons. “Neutral,” open-access global commons are neither neutral nor commons. As the southern nations of the world argued back in the 1970s, and as we can see clearly today, this sort of global property regime simply legitimates expropriation from our common wealth.
Legal scholars define the global commons as four jurisdictions where sovereignty is shared globally: the oceans, the atmosphere, outer space and telecommunications, and Antarctica. The Antarctic Treaty, signed in 1959, provides a governing structure that makes Antarctica unlike any of the other three global commons domains. Neither open access nor neutral, Antarctica is governed by a scientific consortium whose members come from the twelve signatory nations: Argentina, Australia, Belgium, Chile, France, Great Britain, Japan, New Zealand, Norway, South Africa, the (former) Soviet Union. In many respects, Antarctica has been governed as a kind of public trust for scientific research. Preservation of its scientific value for future generations is built into the governing model. Some eco-tourism has developed in this pristine region but, at present, it appears to be managed in conjunction with the scientific community. Since new studies have detected the presence of oil, mineral and gas supplies on Antarctica’s outer continental shelf, however, the relations between the twelve signatories have become strained.
Would Antarctica be a better commons model for the emerging Arctic region? And while we are pondering this question, what’s with the twelve signatories? Why only twelve? If global warming forces us to revisit this global commons regime, it may be an opportunity to go beyond these twelve nation-states. After all, with our new digital capacities, we have collected commons models from the wealth of our diverse human governing systems. (See the Digital Library of the Commons, hosted by Indiana University.) Which commons models can be scaled to work at the global level? Can science step in as a valued part of the executive governing body for the commons (as the French theorist and philosopher of science Bruno Latour has suggested in The Politics of Nature: How to Bring the Sciences into Democracy, Harvard University Press, 2004)? Should the common assets newly available because of global warming be directed to those who are most hurt by global warming?
Antarctica is not the only model I would suggest we look at when we consider our options for creating just commons at the global level. A clue to spur new thinking about global commons should certainly come from the historical inanities we see in the Arctic claims for sovereignty today. The fact that Denmark has buried a bottle of brandy on an emergent Arctic island is a sign that the customs of the old colonialist and imperialist Doctrine of Discovery are upon us once more. England, Spain, and Portugal all had crazy schemes to propertize for themselves lands and seaways in what they claimed was a New World. They, too, hoisted flags and buried treasures with declarations of ownership rights for their kings and queens in lands that were already, for the indigenous inhabitants of these regions, governed as complex systems of commons.
Acting like corporate “brand name bullies” with their flags in our global commons, former colonial states like Denmark invoke the Doctrine of Discovery to claim sovereignty against common property rights in the year 2007. I think there is legal leverage to be gained against the position of Denmark, Canada, and Russia as well as against the position of the U.S. by looking at how indigenous peoples have gotten colonial sovereignty claims revoked in recent years. In a future blog, I will return to look at how recent revocations of colonial sovereignty and the resulting effects for collective, indigenous property holdings may be useful for the broader picture of the global commons.
This blog was originally published 5/9/07.