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Isabel Feichtner (University of Würzburg) has been following the international negotiations on deep seabed mining from an international law and political economy perspective for several years. In this interview she talks about value, values and valuation, the bias of international legal institutions and gives an inside perspective on negotiations at the International Seabed Authority.

Value(s) seem to be a common thread throughout your work. Can you tell us more about the role of value(s) in your research?

Value only recently crystallised as a focal point of my research. Initially my work focused on the legitimacy of international economic law, the potential for its flexibilization and democratisation. This interest explains the choice of the WTO’s waiver power as the object of my doctoral research – the waiver being an instrument that may be used to enhance WTO members’ policy space, that can be employed to coordinate the WTO with other international legal regimes (an example is the Kimberley waiver) and that has also been used to modify WTO rules in order to take account of members’ joint (or common) interests (the TRIPS waiver being a prominent example in this regard).

Since the completion of my book on waivers I have been trying to understand better the constitutive role of (international economic) law in the broader political economy; its contribution to persistent (and increasing) inequality and exploitation. My attention therefore shifted from individual international institutions and institutional linkages to transnational law (as consisting of all legal norms structuring a particular field). I have focused on resource extraction as it is a field where not only inequalities (between the Global North and the Global South, between investors and miners/local communities) are most apparent, but also the impossibility to separate “the economic” (investment in minerals) from “the political” (land as habitat and natural resources as common heritage). I have asked how law enables, facilitates and shapes natural resource extraction and how it distributes the costs and benefits of/from extraction. This research focus on the constitutive role of law means that also less obvious legal regimes and their role in driving extraction come to the fore: to understand what drives extraction we need not only to look at investment and trade law, but, most importantly, also at the law of money and finance.

Against this background, asking questions about value, values and valuation becomes a way (1) to understand the world-making power of value represented by money (as a legal institution), (2) to explain why economic value production (as legally structured) is so misaligned with what societies value (as expressed, e.g., in their constitutions, human rights or environmental law) and (3) to imagine legal designs (of money or property) for alternative modes of value production and valuation.

 

You had already published multiple texts on environmental concerns and natural resources before you got involved in deep seabed mining. How did you get into the topic of seabed mining? What role does this research now play within your overall body of work?

With the international seabed regime we can observe a political economy (based on the expansion of extraction) in the making, with questions concerning value and valuation right at the centre. The current negotiations of the mining code (the regulations which will form, together with UNCLOS, the legal basis for mineral exploitation at a commercial scale) address questions such as the value of manganese nodules in the absence of a market for manganese nodules; the rate of return that – from the perspective of mining corporations – must be attained for seabed mining to count as profitable, the “benefits” of seabed mining vis-à-vis the benefits of leaving the ecosystems of the deep seabed intact and how these should be distributed between states; the valuation of damages and possibilities of insuring against ecosystem losses in the deep seabed.

We can see here quite clearly how the legal institutions of property, money and finance introduce a bias in favour of extraction (and against redistribution) and how even those seeking to protect the marine environment frequently resort to valuation in monetary terms. These debates stand in stark contrast to a frequent portrayal of the law of the deep seabed as an international law utopia with common heritage at its centre. In my view, international lawyers should pay more attention to this operationalisation of their cherished common heritage principle that is currently unfolding at the International Seabed Authority. By closely observing developments in the law of the deep seabed, we may understand better international law’s implications in a global extractive political economy.

 

You have been following the International Seabed Authority (ISA) for several years now. And you joined an ISA session earlier this year. What is it like for a relative outsider to participate at such a session?

It was fascinating to see all the different actors (state delegations, contractors, NGOs) in one room seeking to negotiate their interests; to see some of my intuitions regarding the serious interest conflicts that characterise the International Seabed Authority confirmed. One especially depressing moment was when the CEO of DeepGreen Inc. took the floor as part of Nauru’s delegation and called on states not to stand in the way of contractors saving future generations from climate change through the “harvesting” of seabed minerals. It is a common trope in the debates to point to the “need” for “scarce” resources; to the opportunities of mining the seabed until this need is met and thus to avoid greater dangers posed by land-based mining. The focus on money and finance is particularly helpful in countering such narratives, to show that what primarily drives extraction is the “rate of return” and that “needs” for resources as well as their “scarcity” are not a given, but produced by a legally structured political economy.

I was also intrigued by observing the observers, many of them scientists and environmental activists. They are providing a huge public service just by being in the room, observing, critically commenting, informing delegations about new scientific findings. At the same time they need to constantly navigate a narrow path. If their views become too radical, they may lose their access to those in power, their ability to influence effectively the content of the mining code. This made me ask myself – as an outsider as you say – about the relative values of being an outside and an inside critic.

 

ISA is based on Jamaica. And regarding deep seabed mining there seem to be significant stakes for island states and developing countries in general. What role do these states play within the ISA? What power do they have in the ISA negotiations?

As the negotiations progress, the African Group at the ISA insists more forcefully on the distributional promise of the seabed mining regime (Art. 140 UNCLOS requires an equitable sharing of benefits) and on the operationalisation of the Enterprise, the ISA’s own mining enterprise as provided for in UNCLOS.

Yet, the developing countries at the ISA do not all pursue the same objectives. While those who are not themselves sponsoring states of mining enterprises (like the members of the African Group) may have an interest in increasing revenue for the ISA (which may then be redistributed), a number of small Pacific island states that act as sponsoring states rather hope to generate revenue directly by taxing the enterprises they sponsor. The current negotiations clarify how the design of the seabed regime works to undermine solidarity among the poorer states. At the same time it is quite clear that neither group can hope to obtain significant revenue from seabed mining. While only funds that remain after coverage of all administrative costs will be distributed through the ISA, the small Pacific island states most likely will not gain much by way of direct taxation either. Competition had led them to offer very favourable terms to mining corporations and the processing of mined minerals will take place not within their territories but elsewhere.

A history of false promises as concerns the sharing by developing countries in “the riches of the sea” appears to perpetuate itself at the ISA.

 

What’s next for you? Will you continue working on deep seabed mining? Or will your focus shift to other topics?

I will continue paying attention to what happens in deep seabed mining (and to parallel developments with respect to asteroid mining). I intend to continue work on deconstructing the justifications (based on need, scarcity etc.) of extraction in the hope of contributing (from the outside) to the endeavour to limit the further expansion of extraction. I experience, however, also great urgency to move beyond critique and to engage more seriously in institutional imagination. In my coming sabbatical, and within the framework of a research project on the democratisation of money and credit, I therefore plan to focus more on alternative institutional designs of money that operate not to further a logic of profit maximisation and competition, but seek to better align economic activity with societal values – to promote a political economy based less on extraction and exploitation and more on solidarity.