Emptying the bottom of the sea: Capital accumulation in the cavities of international law

by | 21 Nov 2022

Birutė Nomeda Stankūnienė, “Emptiness” (courtesy of the artist)

Back in September, when the United Kingdom was getting used to a new Prime Minister, a seemingly minor piece of news went unnoticed by the public at large. ‘An obscure UN agency okayed the first industrial sea floor mining project’, reported Tim Fernholz for Quartz. (It may have been daring to think I could make good use of this media outlet. For while ‘anyone can read Quartz’, its owners made it clear that they target an audience of ‘global business leaders — digitally savvy, post-national executives’ keen on better navigating ‘the new global economy.’ Oh well.) The decision in question authorises mineral extraction in the Clarion-Clipperton Zone, a 7,000-km-long region across the central Pacific Ocean. Seabed buffs, including many international lawyers, had seen it coming. A bunch of corporations have been planning to mine the ocean floor for a while, supported by nation states lobbying on their behalf in the appropriate institutional locations. One of those locations is Midtown Manhattan, New York City, where state representatives gather at the General Assembly of the United Nations. And don’t let Fernholz’s piece fool you, with its nod at an ‘obscure’ UN agency secretly holding the key to the ocean floor. That agency is the International Seabed Authority (ISA), a body established in 1994 under the UN Law of the Sea Convention, whose mandate is administering access to the seabed beyond national jurisdiction. Its headquarters are in Kingston, Jamaica, where the ISA holds sessions on an annual basis, just like the General Assembly. These and many other details can be found on its neat online website.

So, there is nothing particularly obscure about this agency. Quinn Slobodian has warned against the fashionable but misleading metaphor of darkness, depicting law as a dim sanctuary where the cogs of the capitalist wheel are hidden from view. To gauge the extent to which the ISA and its surrounding regulatory regime are geared towards the reproduction of capital, we need only consider information that is publicly available, perhaps with the aid of such critical tools as have been developed by thinkers grappling with this phenomenon. A major figure among those thinkers is Rosa Luxemburg, whose insights can help us make sense of current developments in industrial seabed mining. In her 1913 The Accumulation of Capital, Luxemburg drew a key distinction between two forms of capital accumulation. The first is ‘a purely economic process’ whereby the exploitation of wage labour gives rise to surplus value. This is a normalised and ‘peaceful’ way of reproducing capital, as Luxemburg put it, one that is sanctioned by liberal-bourgeois laws. When a given economy becomes incapable of expanding through such a normalised process, however, ‘capital must take appropriate measures […] on the international stage’, extracting wealth from outer social formations by way of ‘fraud, oppression, looting’ and various forms of political violence. As far as the latter is concerned, Luxemburg mainly focused on the forceful establishment of trade relationships with non-capitalist social formations. But her work’s most important legacy is its emphasis on the ‘organic link’ which connects these two aspects of capital accumulation – commodity production in a given economy and violence on a global scale to support that same economy – so that ‘[t]he historical career of capitalism can only be appreciated by taking them together’ (ch 31).   

The rush to mine the ocean floor shows the enduring validity of this methodological direction. The seabed owes its appeal to the vast deposits of cobalt, copper, iron, manganese, and nickel that it contains. Other than fuelling geopolitical conflicts and providing a rationale for enduring forms of imperialism, these metals are critical to the manufacture of batteries for electric vehicles (EV), which makes them a staple of green-transition narratives. Given that shortages in land-based production are said to be forthcoming, tapping into the seabed would arguably put the EV industry on a strong footing. Or rather: it would put the EV industry of certain countries on a strong footing, boosting returns for the capital invested therein. The company that obtained the ISA’s permission to start mining the seabed, for instance, openly intends to erode China’s domination of the EV supply chain to the benefit of manufacturers in the United States. That this business plan has now received the blessing of a UN agency, signals international law’s complicity in designating the seabed as a space up for grabs, to decline Surabhi Ranganathan’s characterisation. In her analysis of the Law of the Sea Convention, Ranganathan listed a number of repercussions that may follow from seabed mining under the current regime. Emptying the bottom of the sea will likely disrupt coastal economies; it will undercut land-based production of cobalt, manganese, and nickel in developing countries; and it may cause irreparable environmental degradation. In this scenario, Luxemburg’s schema remains valid. As the Bank of America sounds the alarm for metal shortages that may hamper growth in the domestic EV industry – locating a key solution in ‘more efficient extraction […] on land, sea, and even space!’ (p. 8) – capitalists keen on catering for US manufacturers get ready to take appropriate measures in international waters, even if doing so will harm human communities and non-human ecosystems.

Having said that, on a discursive level, international law contributes to shaping the ocean floor as a site of accumulation. Anyone who looks at the relevant provisions of the Law of the Sea Convention might still find it puzzling that the ISA has greenlighted industrial mining by a private corporation. Just after establishing the famous principle that the ocean floor ‘and its resources are the common heritage of mankind’ (art 136), in fact, the Convention mandates that no state ‘or juridical person [shall] appropriate any part’ of the seabed (art 137). But how can a corporation sell minerals recovered from the ocean floor, without acquiring property over them in the first place? To put it differently, how can all rights in those minerals be ‘vested in mankind as a whole’ (art 137), if a Canadian company is allowed to retrieve them and sell them for processing and manufacture in US(-owned) factories? Once again, Luxemburg comes to the rescue, reminding us that the legal categories of liberal-bourgeois thought are but ‘empty, noncommittal’ phrases that express ‘absolutely nothing’. As she explained, ‘[h]istorical materialism has taught us that the real content of these “eternal” truths, rights, and formulae is determined only by the material social conditions of the environment in a given historical epoch’ (The National Question, 1909: ch 1). When we move from the law’s discursive thrust to its content, neither the principle of the ‘common heritage of mankind’ nor proscriptions around a supposedly immutable idea of ‘property’ can determine who gets to profit from the seabed’s resources, if anyone at all. Some actors have the technology to mine the ocean floor, others do not. The Covid-19 pandemic has shown that governments in the so-called ‘Global North’ are extremely reluctant to get their corporations to share profitable knowledge, no matter how widespread the benefits would be. The commodification of the intangible commons of the mind is becoming more and more pervasive, as is equating opposition to capitalism with economic illiteracy. Financial markets play a key role in channelling the money that is required to explore the ocean floor, as I argued here. Capital gathered on the stock exchange can also be used to try and convince regulators, as well as public opinion, that retrieving minerals from the seabed will have a mild ecological impact, or mild enough to be worth its while. International law’s high-sounding but empty concepts do not affect these facts of social life, thus validating Luxemburg’s words from a century ago. The discursive cavities these concepts create are easily filled by big corporations and their devotees, who are free to resort to political violence whenever the reproduction of capital is in danger of hitting a wall.   

1 Comment

  1. Excellent

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