Free the sea

Reading Chris Armstrong’s A Blue New Deal for New Scientist, 16 February 2022

Chris Armstrong, a political theorist at the University of Southampton, believes that the institutions and laws that govern our oceans are too fragmented, too weak and too amenable to vested interests to address the inequalities that exist between developed and developing nations.

Nor, he says, do they protect the marine environment from destruction, and this at a time when there’s been a 30 per cent increase in ocean acidity (since 1900), when the global fishing effort has grown ninefold (between 1970 and 2008), and the globe’s pursuit of oil, gas and minerals is increasingly being directed off-shore.

Ocean governance has been shaped by two contrary impulses: the idea of the freedom of the high seas, given shape in Hugo Grotius’s The Free Sea of 1609; and the idea — rather more familiar to landlubbers — of enclosure, by which a coastal state is entitled to exclusive control and enjoyment of its immediate marine environment.

Grotius’s vision of oceanic free-for-all allows anyone with the wherewithal to exploit an ocean resource as much and as often as they desire. Armstrong allows that this was not entirely unreasonable, given the limited technology available at the time to even the wealthiest nations. Clearly, though, it needs reform for the 21st century, given only a handful of rich nations have access to the expensive technologies involved in sea-bed mining and mineral extraction.

Enclosure is perhaps the more recalcitrant tradition. The idea behind “territorial waters” is ancient, but Armstrong sensibly explains it by reference to the 1968 article by the ecologist Garrett Hardin, in which he claimed that “Freedom in a commons brings ruin to all”.

The trouble is, this isn’t true. The historical record is full of examples of resources held in common, and governed equitably for hundreds of years. The much vaunted “tragedy of the commons” is a piece of rhetoric, not a proven truth. And as Armstrong rightly points out, “the real tragedy for individual ‘commoners’ was enclosure itself, which saw them being evicted from the land by wealthy landowners.”

In 1994, a new Convention on the Law of the Sea established Exclusive Economic Zones extending for 200 nautical miles from nearly every shore. Within these zones, resources are subject to the jurisdiction of the coastal state. By this myopic reasoning, landlocked countries were excluded from a share of the spoils of the sea. (This matters, as access to the sea is essential for economic health. Armstrong points out that 9 of the world’s 12 poorest countries are landlocked). It did nothing to prevent richer nations from licensing, on predatory terms, rights over the EEZs of countries too poor to exploit their own territory. And it gave every state-owned atoll, rock, and island an exclusive patch of sea to exploit, extending 200 miles in every direction. And which states own these rocks? Former colonial powers, of course. Thanks to the 1994 convention, the United States, the United Kingdom, France, Russia and Australia now command the resources of more than 45 million square kilometres of ocean.

What can be done?

In 1959 a treaty established Antarctica as a place of peace and international cooperation — a commons in other words. Eight years later, the Outer Space Treaty of 1967 did the same for the worlds beyond our own. So it is not beyond our legal capacities, Armstrong argues, to govern our oceans along principles of common management, benefit sharing, and even technology transfer between rich and poor nations.

Where Armstrong comes unstuck is in his ideas for enforcement. It’s all very well to dream up a “World Ocean Authority” whose deliberations no state would have the power to veto or depart from. But what omnipotent and omniscient power will drive all this selfless sharing, I wonder? Not, I would bet, the destitute seamen of the Gulf of Thailand; nor the blue whales and other non-human stakeholders of our increasingly stressed oceans.

Prudery isn’t justice

Reading Objection: Disgust, morality, and the law by Debra Lieberman and Carlton Patrick for New Scientist, 15 September 2018

Ww want the law to be fair and objective. We also want laws that work in the real world, protecting and reassuring us, and maintaining our social and cultural values.

The moral dilemma is that we can’t have both. This may be because humans are hopelessly irrational and need a rational legal system to keep them in check. But it may also be that rationality has limits; trying to sit in judgement over everything is as cruel and farcical as gathering cats in a sack.

This dilemma is down to disgust, say Debra Lieberman, a psychologist at the University of Miami, and Carlton Patrick, a legal scholar at the University of Central Florida. In Objection, they join forces to consider why we find some acts disgusting without being reprehensible (like nose-picking), while others seem reprehensible without being disgusting (like drunk driving).

Disgust is such a powerful intuitive guide that it has informed our morality and hence our legal system. But it maps badly over a jurisprudence built on notions of harm and culpability.

Worse, terms of disgust are frequently wielded against people we intend to marginalise, making disgust a dangerously fissile element in our moral armoury.

Can science help us manage it? The prognosis is not good. If you were to ask a cultural anthropologist, a psychologist, a neuroscientist, a behavioural economist and a sociologist to explain disgust, you would receive different, often mutually contradictory, opinions.

The authors make their own job much more difficult, however, by endorsing a surreally naive model of the mind – one in which “both ’emotion’ and ‘cognition’ require circuitry” and it is possible to increase a child’s devotion to family by somehow manipulating this “circuitry”.

From here, the reader is ushered into the lollipop van of evolutionary psychology, where “disgust is best understood as a type of software program instantiated in our neural hardware”, which “evolved originally to guide our ancestors when making decisions about what to eat”.

The idea that disgust is to some degree taught and learned, conditioned by culture, class and contingency, is not something easily explored using the authors’ over-rigid model of the mind. Whenever they lay this model aside, however, they handle ambiguity well.

Their review of the literature on disgust is cogent and fair. They point out that although the decriminalisation of homosexuality and gay marriage argues persuasively for legal rationalism, there are other acts – like the violation of corpses – that we condemn without a strictly rational basis (the corpse isn’t complaining). This plays to the views of bioethicist Leon Kass, who calls disgust “the only voice left that speaks up to defend the central core of our humanity”.

Objection explores an ethical territory that sends legal purists sprawling. The authors emerge from this interzone battered, but essentially unbowed.