The CCAMLR could therefore be said, unlike traditional fishing regimes, to regulate rather than facilitate the “rational” extraction of marine living resources (recognizing that this jargon does not change the fact that the CCAMLR governs animal life and death). To achieve this end, it deploys a web of disciplinary and regulatory measures onto state and state-sanctioned actors to attempt to ensure compliance. These include:
“…port state controls (catch documentation—import, export, and transshipment); flag state controls (vessel licence [sic.] conditions—construction, design, equipment, and management, including vessel monitoring technologies); coastal state controls (harvest licence conditions—monitoring, observing and inspecting, hot pursuit, boarding, and arrest); and interstate cooperation that is supportive of these measures (information sharing—vessel identities, licences, movements, catches and non- compliance records, blacklists, and collective sanctions).”52
This mechanism – which, some argue, minimizes illegal, unregulated, and unreported (IUU) fishing53 – creates a disciplinary regime based on observation, inspection, and documentation. The aim is not only overt enforcement and monitoring, but the development of self-monitoring on the part of states and fishermen. The ultimate aim is to change human behavior vis-à-vis the regime and nonhumans as both the CCAMLR’s rules and the ecosystemic approach itself are internalized. In the absence of an overarching power to ensure compliance – in other words, in the absence of sovereignty in the classical sense – new norms are established through scientific expertise (co-constituted by, but also weighed again, economic interests) that is at the heart of the multilateral regime. It is within this system that the MPA for the Ross Sea is being proposed.54
While other no-catch MPAs have been established, very few have been attempted on the high seas, and none on the scale of the Ross Sea. As such, this proposal would be
the Ross Sea proposal would be precedent-setting for two primary reasons. First, unlike for instance the controversial Chagos Islands MPA, it is not tied to control over any physical territory and therefore “the environment” is not placed in contradistinction to the local interests of human populations.55 Second, unlike the existing South Orkney Islands Southern Shelf MPA which was established under the auspices of the CCAMLR, the proposed Ross Sea MPA would be not only much larger but directly interfere with ongoing fishing interests, specifically in highly lucrative toothfish.56
The Ross Sea is, first and foremost, a human creation. It is water that flows through a given area, a part of the global oceanic system, home to certain species, and a transit route for more migratory ones. And yet it is defined as “bounded to the north by the 3 000 m depth contour and by the 69°S line of latitude; to the south by the permanent ice shelf; to the east and west by land, and the 160°W and 170°E meridians.”57 This area, bounded by imaginary lines, subject to the CCAMLR’s governance regime and to competing fisheries claims, is also among the global marine ecosystems least affected by human activities (be it through direct exploitation, pollution, or sustained human presence or activities).58 Given this unique nature and the region’s importance as a site of scientific study, it is an obvious candidate for being suggested as a marine protected area.
What does it mean, however, to declare a no-catch MPA in international waters governed only obliquely by consultative treaties and institutions? If ecosystems and marine species are granted protection from human intervention, they are in effect granted the “right” to develop and continue to exist as they would without destructive human intervention? While they are granted this space for biological self-determination, this does not mean they become self-determining or sovereign in a human political sense, nor does it mean they gain the capacity to defend their newly-received rights against human aggression.59 Even as norms change with regards to nonhuman nature, the anarchic character of the high seas would provide no insurance against self-interested incursion on the part of states or state-sanction actors.
Attractive as such an image might be to environmentalists, protected ecosystems do not coalesce into a (perhaps literal) Hobbesian leviathan. Indeed, the proposed Ross Sea MPA would entail a strict disciplinary regime aimed at the surveillance, evaluation, and shaping of state and commercial actors’ norms of behavior. It would also entail extensive surveillance and scientific intervention into non-human life for both non-human and human biopolitical purposes. Given that an MPA would entail specific power relations and practices that would involve both human and non-human actors and complicate interspecies relations, the proposed human-nonhuman interaction under a Ross Sea MPA as well as the human regulatory regime bear examining more closely.
While a preservationist ethic is generally construed, as it is by Wapner (2002), as “accepting the natural others’ ability to just be” and “entails allowing the unfolding of an entity’s existence free from significant human intervention,”60 in practice, and especially outside sovereign territory, such an approach would actually require considerable surveillance of and intervention into both human and nonhuman worlds.
There are two distinct dimensions to the argument made in favor of making the Ross Sea a no-catch MPA. The NGO and broad environmental civil society discourse take a tack similar to Wapner’s. Their call for a return to unspoiled nature echoes Mick Smith’s assertion that “the whole point of environmental ethics and radical ecology has always been to deny the claims of human sovereignty over the world.”61 The NGO focus is specifically on informing citizen-consumers about the dangers fishing poses to the Ross Sea (to impact on their consumer choices) and to call for national-level support for the MPA proposal.
For instance, The Last Ocean Project, a joint United States and New-Zealand-based non-profit, pitches its preservationist message as follows:
“The Ross Sea, Antarctica is the last intact marine ecosystem on earth. [It is] a living laboratory, providing our last chance to study and understand how a healthy marine ecosystem functions. But the natural balance of the Ross Sea ecosystem is now under threat. An international fishing fleet is targeting Antarctic toothfish, sold as "Chilean sea bass" in up-market restaurants around the world. There is still a chance to protect the Ross Sea. The international body providing governance for the waters around Antarctica has made a commitment to designate a network of Marine Protected Areas by 2012. … The Last Ocean endorses the establishment of a comprehensive no-take Marine Protected Area for the Ross Sea. We would like New Zealand, as the instigator of fishing in the Ross Sea, to lead by example - to phase out commercial fishing and encourage other member nations to do the same.”62
Supporting this mission statement, however, is an appeal to preservationist aesthetic and naturalist sentiments aimed at an environmentally-aware but not necessarily scientific audience.
The Ross Sea is described as an area where “top predators are still abundant [and] drive the system, shaping the food web below in a way that's totally unique.”63 It hosts “the richest diversity of Southern Ocean fishes, an incredible array of benthic invertebrates and massive populations of mammals and seabirds” as well as penguins, whales, seals, and orcas, as well as the commercially coveted toothfish.64 It is likened to World Heritage Sites like Lake Baikal in an appeal to precedent and socially-approved norms. Here and in other NGO discourse related to the Ross Sea, science is quoted alongside evocative description in support of full preservation.
The preservationist argument made by the scientists themselves within the structures of international governance, however, presents science rather than the ecosystem itself as the primary reason for establishing the MPA. The “Scientists’ Consensus Statement on Protection of the Ross Sea” being circulated by the Antarctic and Southern Ocean Coalition to drum up public support for the implementation of the no-catch MPA is explicit on this point. It bears quoting at length:
“Few large intact ecosystems remain in the world’s oceans. In the Southern Ocean we have a narrow window of opportunity to protect one of these special places: the Ross Sea. …
We, the undersigned scientists, believe that it is essential that the entire Ross Sea, including its shelf and slope, is [sic.] afforded protection by designating it as a fully-protected marine reserve. Only by adding fisheries to the already excluded minerals extraction, and ensuring that other significant human pressures are removed or minimised, can we preserve the intrinsic values and ecological integrity of the Ross Sea.
Its unique ecology, relatively undisturbed state, and long history of ongoing scientific research make the Ross Sea a ‘living laboratory’ essential for the study of marine ecosystems and of the effects of climate change independent of complicating factors.
Establishment of the Ross Sea Marine Protected Area by the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR) would provide a crucial component of a comprehensive and representative network of marine reserves across the Southern Ocean. It would stand as a shining example for the rest of the high seas.”65
Indeed, proposals made to the CCAMLR focus predominantly on both the need to continue scientific inquiry in the region and to use preservation instrumentally for a number of ends. A number of documents currently under consideration by the CCAMLR (which cannot be directly cited but are available online)66 claim that the pristine ecosystem should be preserved sui generis, but also that, by virtue of being pristine, the Ross Sea is the ideal setting to study the effects of climate change and other environmental disturbances. Moreover, these submissions recognize human fishermen as competing with natural predators and thereby imbricate humans in the biopolitical models of ecosystem management. Indeed, other reasons given for the creation of a no-catch MPA in the pro-preservation submissions is the notion of using the MPA as a sort of control area to understand fisheries impacts in areas of the Southern Ocean covered by CCAMLR but not granted full protection. Moreover, the proposed preservation area is presented as a potential living proof of human knowledge; the MPA would be a testament to the veracity of the theory of evolution and a model of biodiversity.
The implication is that the preservation initiative will be good for science, for humanity, and for ecosystems (and maybe even for fishing interests). While these findings are supported by recent publications,67 central here is the fact that the preservationist argument is not made in the sense of removing human activity entirely from the Ross Sea. Rather, the stated purpose is entrenching the human biopolitical presence and thereby imbricating the Ross Sea in broader circuits of knowledge and power. This, in turn, would be institutionalized through the CCAMLR and supported by the exercise of the various disciplinary mechanisms discussed earlier. In the no-catch MPA envisioned by the scientific community, sovereignty over the ecosystem would not be done away, but its purpose would change.
Both sides are attempting to push for what from outside seems like the same project, one working at the level of civil society and the state and the other at the level of institutional governance, and both are seeking to alter state behavior based neither on security arguments, economic appeals, or references to the state of the world system.
Currents of Preservationist Norms and Alternative Conceptions of Sovereignty
The proposed “Last Ocean” MPA scheme would mean the creation of a politically-delimited commons that would be (perhaps paradoxically in the terms we usually imagine a “commons”) off limits to anyone except scientists and the region’s nonhuman inhabitants. A central question the idea of a high seas MPA raises is the following: Why would states enter into a preservationist governance regime whose aim is primarily not the management of resource extraction or security interests, but rather outright environmental and species protection?
Critics of constructivism would argue that this question is not even the correct one to ask. Downs (2000), for instance, suggests that constructivist notions of identity and the role of civil society in crafting environmental regimes are overstated. Drawing implicitly on game theory, he posits that the true reason for states engaging in environmental governance is “the unspoken knowledge that one party’s violation will lead to a comparable relaxation of the agreed-upon standards by the other party.”68 This argument holds on to a traditional epistemology of the development of state behavior which not only disempowers non-state actors, but fails to account for the possibility of changing reasons of state. It fails to recognize, for instance, that states may take on norms that go against the Lockean ideal of claiming anything in the commons as property (even taking into account the potential of a Lockean Proviso) to an engagement with nature that is not primarily an acquisitive one.
A different explanation can be found in the work of constructivist thinkers like Finnemore and Sikkink (1998), Epstein (2006, 2008), and Eckersley (2004) Finnemore and Sikkink assert that “from a constructivist perspective, international structure is determined by the international distribution of ideas.”69 They argue that states or groups situated throughout society and state structures can take on the role of what they term “norm entrepreneurs,” who call attention to or “create” issues, thereby challenging “what is seen as natural or appropriate.”70 If norm entrepreneurs succeed in the contested market for ideas (in the case of the Ross Sea, they are opposed by fishing interests and their links in federal fisheries ministries), they can change identities and interests at the state level. Charlotte Epstein argues that this is precisely what has happened with the “scientization of nature discourses” and the proliferation of international norms pertaining to animal species.71 The development of concepts, backed by scientific knowledge, such as “endangered species” has led to the development of a sense of duty at the civil society and state level to protect certain animals, duties which have been enshrined in agreements like CITES. Changing norms also apply to the application of science itself. Epstein suggests that early marine resource management regimes and agreements like the International Whaling Commission (which was established by whaling interests) were rooted in a “Weberian rationalization of nature use on a global scale. This comprised two aspects: the utilization of natural resources was organized increasingly on a model of scientific rationality founded in a Cartesian domination of nature.”72 As evidenced by the Ross Sea MPA proposal, this has at least party changed. While science remains at the heart of the “management” dialogue, its purpose – if not its sovereign role – can shift to one of preservation, which in turn can shape governance regime and state actions. Epstein does not suggest that a change in norms ensures global adoption of those norms of compliance with the moral or legal frameworks that arise around them, but rather that to a lesser or greater degree there is an awareness of the legitimacy of new issues or meanings. Nor does she suggest that norms will entirely replace power politics, but rather that the two can coexist and that, by extension, within an anarchic system, norms can lead to the creation of new governance models and new reasons of state.
This is the argument taken up by Robin Eckersley in The Green State. She suggests that notions of legitimate state conduct can change, including ceding aspects of sovereignty to regimes and institutions that limit the scope of actions available to a state.73 She sees the potential for the emergence of “green evolutions in sovereignty” within states74 and for “binding external [presumably institutional] limits on the means by which domestic economic goals are pursued.”75 While Eckersley undervalues the role of NGOs and civil society in actually generating norms, her thesis is borne out in extensive state participation in various conversation and governance treaties as well as in unilateral initiatives that privilege ecological concerns over economic or security interests. It appears that such norms also lead to a feedback mechanism, whereby accepted practice is then re-analyzed and reinforced at various levels of discourse. For instance, preservationist arguments that have led to the creation of marine reserves are supported post-facto in academic commentary, thereby legitimating further application of the norm.76 “Greenness” is here nestled into state sovereignty because, as Eckersley argues, “the principle of state sovereignty is not a self-justifying norm but rather takes its meaning from the changing constitutive discourses that underpin it.”77
Such ideas, leading as they do to more and deeper state involvement in (and enforcement of) environmental politics, are not without critics. Mick Smith argues that it suggests a “green state welfarism” dependent on a powerful state.78 He sees two problems here. First, that under modern global capitalism welfare states and state capacity in general are being weakened, and so a “green state” would have little power to do its duty or prevent itself from a neoliberal slide toward a focus of resource extraction. Second, drawing on the critiques of sovereignty and the state of Agamben and Schmitt, Smith argues a sovereign state not only holds the power to declare states of exception that can obviate politics, but also relies on systems that can strip some or all members of the population of the political capacities, reducing them to “bare-life.”79 In such a system, ecological crises may lead to emergency measures and technocratic solutions that are both counterproductive to the environment and to the very “ecological politics” that allowed its emergence.80
The solution, then, might be either “imagin[ing] a world without sovereign power, without human dominion,”81 or, as some theorists have suggested, granting sovereignty (or something like it) to nonhumans. Goodin et al., for instance, argue that the notion of sovereignty is desirable for the protection of nonhumans but only if it is directly extended to (at least some of) them. They suggest that some great apes not only have the pre-requisites for self-determination but already display complex politics within their own societies; indeed, that simians are human enough to merit sovereignty. Based on the 1993 Declaration of Great Apes, they argue that simians should be granted sovereign “homelands.” Similarly, Kymlicka and Donaldson argue that “wild animals,” namely those who fall outside regular interaction with or reliance upon humans, should be granted sovereignty over both the territories they normally inhabit and potentially over the migratory paths they take through human territory. They root their idea not so much in animals’ capacities as in norms of international justice, wherein human citizens of sovereign states would “identify our obligations to wild animals.”82 This theory would disallow humans the right to intervene in or govern in wild animals’ territory, thereby setting up a basis for interspecies relations. Kymlicka and Donaldson argue that traditional views of sovereignty can be “rehabilitated”83 and that sovereignty here has a moral purpose.
These critiques are, however, slightly misplaced. Smith’s reading of Eckersley is imperfect as he falls into the trap pointed out by Litfin of “emphasiz[ing] the state’s autonomy relative to actors within its own borders.”84 Eckersley’s ideal – and, it bears underlining, in fairness, this is an ideal - “green state” is not an eco-authoritarian one, but rather a democratic one which does not exclude ecological politics or non-state ecological activism. The nature of “democratic” decisions, of course, varies from state to state, and this is not to suggest democracies cannot declare exception, but rather that the green state as suggested by Eckersley seems to suggest inclusive and multi-level environmental governance rather than centralization and the sort of technocratic securitization Smith associates with the work of James Lovelock. Indeed, the problem here is Smith’s totalizing and reified reading of the very nature of sovereignty, which he casts as a monolith of dominion representing the interests of global capital.85 Interestingly, Smith specifically cites the Antarctic Treaty as “an imperfect real-world example … of the (purportedly) indefinite suspension of the power to make a decision that turns entire continents into standing reserve.”86 And yet Smith reads this international decision not as itself a multilateral sovereign decision but rather as an exemplar with the “potential to be turned toward a weakening of the metaphysical ideal of sovereignty and dominion altogether.”87 Such a reading of a sovereign decision as being somehow extra-sovereign misses the real politics behind it and the underlying capacity of states to change their prerogatives. Indeed, and paradoxically much as the scientists and NGOs supporting CCAMLR’s decision, what Smith seems to be opposing is an unchecked capitalist market system rather than “sovereignty” as such.
But if sovereignty is “stretched” to include protection rather than exclusion of nonhumans, it can in some instances offer more secure protection than NGO- or speech-act-based ecological politics. Moreover, such sovereign protection need not be exploitative, but merely protective, as per various international models of national parks and protected areas. While I am not denying that states undoubtedly engage in environmentally destructive actions, this does not mean that sovereignty in and of itself is detrimental to the environment. Moreover, Smith’s appeals to non-state politics seem to offer little solution to actions like fishing, which are capital-intensive and happen far away from the sight (and imaginary) of most humans. How would one organize global resistance to fishing as a practice and generate the scientific knowledge to back these political actions? One option would be to suggest marine species are sovereign and that engaging with them is a form of international politics.
However, the sort of stretching of sovereignty suggested by Goodin et al or Kymlicka and Donaldson seems highly problematic. Both of these approaches not only attempt to anthropomorphize animal societies, but attempt to drag specific interpretations of animal societies into human political categories in which they do not fit. This is especially problematic since the authors do not suggest that animals are or can ever achieve full “personhood” and will therefore need human trustees as might “underage heirs [or] incompetent elders.”88 Goodin et al seek to soften this critique by arguing that “bifurcation of sovereignty is sometimes morally suspicious, smacking of the sort of apron-string ‘tutelary democracy’ practiced by colonial powers … [but] applied to the great apes … there is a clear and compelling reason for granting them internal but not external sovereignty-reasons to do with their clear capacity to exercise internal authority, conjoined with their clear incapacity to participate as full equals in international negotiations and adjudications.”89 But this set-up does not create an independent animal polity. What they are describing, then, is a system similar to that described by Jackson (1990) as one involving “quasi states,” one which paradoxically would seem to require the existence of the sort of green-minded states described by Eckersley. Moreover, there is a difference between governance in the sense of human inter-state relations and governance as it applies to nonhuman populations. As Rose and Milligan note, environmental governance “embraces coordination between actors”90 and “includes horizontal management activity that crosses institutional boundaries, utilizing cooperation between governmental managers as well as networks between them and other stake-holders...”91 Animals and ecosystems covered by such governance systems are not, however, agential participants in these processes. While animals might be granted “sovereign” space for biological self-determination, this does not mean they would necessarily gain the capacity to represent or defend their rights in human political settings. Finally, and perhaps most damningly, such proposals privilege animals over other parts of the ecosystems they inhabit, suggesting another taxonomic exclusion. These suggestions offer little tangible potential beyond that of well-managed conservation efforts or parks, which require human sovereign power to legislate into existence and protect.
Conclusion: The commons are what we make of them
If the proposed Ross Sea MPA is implemented, it will spell not the liberation of a marine ecosystem, but its imbrication – perhaps in perpetuity – in a specific, and malleable, form of sovereignty. But it would be one (arguably) “preferable” to the marine species it would protect. As Ainley and Brooks ask, “What could be more rational than setting aside a large area of Earth, including the ocean portion, for the sake of peace, science and future generations?”92 This sovereignty would be based not in the nature of the anarchic world system, or the anarchic nature of the high seas, but in international governance institutions and the norms to which these might adhere. These norms, in turn, are developed at various levels of society and by scientific interests operating within extra-democratic institutions.
The constructivist approach to the study of international relations helps us account for the very possibility of the emergence of preservation regimes that privilege ecosystems over economic interests and scientific inquiry over pure preservationist ideals. Cooperation between states cannot be guaranteed, and if sovereignty is to be used to preserve rather than conserve of exploit, it must be through changing civil society norms and challenges within existing institutions which will shape the interests and identities of states. The biopolitical account, on the other hand, demonstrates that preservation need not mean the granting of sovereignty or rights to nonhumans. Instead, it shows that specific forms of sovereignty lead to the entrenchment of interspecies relations that can become central to the very purpose of governance regimes and the identities of states.
New forms of sovereignty and new forms of environmental protection are possible, and the Ross Sea MPA presents the possibility of an unprecedented political experiment. Such an experiment could only have emerged through norm
creation and systems of power outside traditional accounts of state responses to anarchy. But it also shows that while constructivism helps explain the emergence of new environmental regimes, it must take account of creation of new forms of power and sovereignty that go beyond current conception of ecological politics and the green state. CCAMLR is not a silver-bullet model; indeed, it is not only unique to its context and (extraterritorial space), but it has proven to be a flawed organization marked by a precarious balance of power between conservation and fishing interests. On the other hand, it provides a forum where science and preservationist interests can come to the table with – and speak against – the sort of acquisitive, purely economic interests that normally govern human interaction with aquatic species. Moreover, marine MPAs do not signify a teleological step forward in the very nature of how we engage with the nonhuman world or a holistic shift in the nature of sovereignty. Rather, they show that “ecological sovereignty” can be rooted in contested politics and that, faced with a real tragedy of the commons, some forms of sovereignty can be, from an ecological perspective, the lesser of two evils. The challenge going forward is to recognize that the commons are what we make of them (and, in doing so, to not lose sight of the fact that we are what the commons make of us).
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