Covering more than 70% of the total area of the planet Earth, oceans do not escape from disputes over its control. By exploring the relations between norms and material power, Dr Rodrigo Fracalossi de Moraes shows how states acted to push for an emerging ocean order after World War II that expanded states’ sovereignty over oceanic resources.
In order to do so, Dr Moraes examines the evolution of the modern ocean’s regime, arguing that legal distinctions between the regimes in areas under and beyond national jurisdiction are much less prominent in the political reality of states’ relations and effective control. To sustain his argument, Dr Moraes present three case studies (Brazil, China and the United States) that demonstrate how different countries, with divergent capabilities and interests, resort to the current international regime of the oceans for its control under the norm of sovereignty.
The author of the article “The parting of the sea: norms, material power and state control over the ocean,” published in RBPI (v. 62, n.1 – 2019), was interviewed on his views about the article by Igor Magri, member of RBPI team.
1) In your article, during the discussion of the control in areas beyond national jurisdiction (ABNJ), you explain that even though the nature of the Area regime differentiates from the regime of the areas under national jurisdiction because it is legally defined as common heritage of mankind, its regime resembles very much what underlies the norm of sovereignty. Taking into account that a new treaty for biodiversity beyond national jurisdiction (BBNJ) is under negotiation, would you characterise this process as an extension, in general terms, of the same phenomenon that happens to the Area, that is, BBNJ being recognized as common heritage of mankind, but functioning closer to the norm of sovereignty?
Indeed, while the EEZ and extended continental shelves are areas where states have ‘sovereign rights’, the Area is considered in international law as ‘common heritage of mankind’. Yet, this difference of language is misleading: if the principle of a ‘common heritage of mankind’ were applied to the Area, there would be a system to redistribute resources or technology, as well as to encourage partnerships between countries with different levels of development. Furthermore, although there are different rules for each of these spaces, states – or those sponsored by them – have exclusive rights over parts of the Area, very much like they have over areas under national jurisdiction.
Concerning biodiversity beyond national jurisdiction, the situation resembles a ‘freedom of the seas’ type of regime. There are various regulatory and governance gaps, so that this issue currently falls under the high-seas regime. This explains why the number of patents is concentrated on a few countries and why only a small number of companies have accumulated knowledge and patents on this.
In the negotiations for a treaty on BBNJ, evidence suggests that, regardless of the language adopted in an eventual treaty, a ‘freedom of the seas’ regime is likely to prevail. Although the ideas of ‘common heritage of mankind’ or ‘common concern of mankind’ may be legally adopted, it is likely that control of resources will remain concentrated in companies with capacity to conduct research and exploit them. This does not prevent the regime, of course, of having a few compensations for developing countries. It is unlikely, however, that these compensations will be substantial.
Finally, although evidence indicates that the BBNJ will not resemble a regime based on the norm of sovereignty, its creation is part of a long-term process through which states and other actors have expanded exclusive control over sea resources. The difference in the case of biodiversity is that control occurs to a great extent through knowledge and patenting.
2) You cite the work of Blasiak et al. (2018), which explores the role of private actors in gene patenting. Also, you describe the formation of the modern ocean order as state-centred, in which states heavily relied in international law for its construction and thus legitimisation. However, it seems impossible now to continue in its construction without dialoguing without other actors, mostly the private ones, such as enterprises that hold a great share in ocean-related activities. How do you see nowadays the role of private actors in the construction (either for its maintenance or change) of this state-centred ocean order?
Regardless of whether private actors formally participate in negotiations, the fact is that they have increasing influence on the construction of regimes, either directly or indirectly. As argued by Amitav Acharya, there is now a ‘multiplex order’, in which power is increasingly redistributed from states to other actors, such as corporations, civil society organisations, international organisations, regional arrangements and transnational criminal groups.
In sea areas beyond national jurisdiction, private corporations are the main actors exploiting resources, and dominate patents derived from marine biodiversity. By having substantial resources, as well as accumulated knowledge, they are able to influence states’ decisions. This is reinforced by the fact that most states lack expertise and resources, being unable to discuss in details the technical aspects of marine biodiversity, especially in areas beyond national jurisdiction.
3) Still in the theme of the BBNJ negotiations, it is clear that the North-South cleavage dominates part of the debate, especially in the questions related to benefit-sharing from marine genetic resources, and capacity building and technology transfer. One of your case studies, Brazil, is thought to play an intermediary role, and with certain leverage, considering its 15-year authorization to explore the Rio Grande Rise and its role in the South Pacific, including Antarctica. How do you envisage Brazil’s role in the global governance of the oceans, especially in regard to the current BBNJ negotiations?
Brazil has benefitted a great deal from the current regime of the oceans, as it has extended control over 3.7 million km² of EEZ, and it is likely to extend this further when its claims over extended continental shelves are recognized. Brazil’s oil and gas reserves are concentrated in the seas, something that had a great impact on the country’s development in the last decades. For this reason, Brazil has strong incentives to maintain the current regime of the oceans.
Concerning the BBNJ, although there is not much public information about Brazil’s position in negotiations, Brazil has strong incentives to emphasize redistribution of resources and technology. As institutions in Brazil have limited capacity to do research and exploit resources in areas beyond national jurisdiction, a redistributive system would increase the likelihood of international partnerships and transfer of technology. This is not what most developed countries are proposing, however, as they prefer a ‘freedom of the seas’ type of regime. This would allow a few institutions in these countries to do research in areas beyond national jurisdiction, which comprise 64% of the surface of the oceans and 95% of its volume.
Furthermore, as Brazil is one of the few megadiverse countries, a focus on environmental protection can be used as a comparative advantage, partially compensating for weaknesses in other areas. This position was in part observed in the creation, in 2018, of marine protected areas around the Saint Peter & Saint Paul and Trindade & Martim Vaz archipelagos.
Blasiak, R., Jouffray, J.-B., Wabnitz, C.C., Sundström, E., Österblom, H., 2018. Corporate control and global governance of marine genetic resources. Sci. Adv. 4, eaar5237.
Read the article
Moraes, Rodrigo Fracalossi de. (2019). The parting of the seas: norms, material power and state control over the ocean. Revista Brasileira de Política Internacional, 62(1), e003. Epub April 15, 2019.https://dx.doi.org/10.1590/0034-7329201900103
About the authors
Rodrigo Fracalossi de Moraes – PhD in International Relations at University of Oxford and Planning and Research Technician of the Institute for Applied Economic Research (Ipea) (e-mail: firstname.lastname@example.org).
Igor Magri de Queiroz is a senior undergraduate International Relations student at the University of Brasília, scholarship holder for the project “A Estratégia Brasileira para a Gestão Sustentável dos Recursos Marinhos Vivos” (Projetos Estratégicos, DRI/CAPES).
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