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Whoops, wrong tweet - that’s an English fan firing shots at Italian cuisine. Of course, the Italian internet wasn’t going to put up with that sacrilege:
Now that the Euros are over, our sportphobic readers can relax. We won't talk sport again until the next Olympics.
How the next world war could start: freedom of navigation under international maritime law.
How the next world war could be avoided: is deep-sea mining the answer to our rare earth problems?
📧 Oh and of course, a warm welcome to our 16 intriguing new subscribers this week! If you reached us from the web, you can subscribe for free here👇
Freedom of navigation under international maritime law
A lawyer is a person who writes a 10,000-word document and calls it a ‘brief’.
- Franz Kafka
*Very droll, Franz. The cost of turning 10,000 words into ~800 is that there will be omissions from and exceptions to what I write below. It’s a price worth paying, I’m sure you’ll agree.
New York Times headlines five years ago today:
David Cameron Gets Hustled Out of Downing Street, but the Cat Stays
New Evidence on van Gogh’s Ear Continues Debate on Painter’s Mental State
Too Old for Sex? Not at This Nursing Home
Simpler times. Also this:
But Tony, what is ‘freedom of the seas’?
Freedom of navigation of the seas is a ~500 year old concept that ships are free to go almost wherever they please without harassment.
It’s an early example of game theory in international relations - if your nation could plunder my ships at sea and my nation yours, then naval strategy would quickly become a race to the bottom (of the ocean).
So, the freedom of navigation concept developed organically and became what's known as ‘customary international law’ - a.k.a the world’s been doing it this way for ages so don’t be a d***.
Freedom of navigation became explicit international law under the United Nations Convention on the Law of the Sea (UNCLOS) in 1982. A few key definitions:
⚔ Territorial waters: the area of the ocean up to 12 nm off the coast. This is considered the territory of the coastal state.
🎣 Exclusive economic zone (EEZ): the area up to 200 nm from the coastline. The coastal state has rights to economically exploit this area, but it isn’t considered territory.
🐙 High seas: the ocean that lies beyond 200 nm from a coastal state and thus, belongs to the kraken.
Innocent passage: an integral part of freedom of navigation
‘Innocent passage’ is the right of a ship to sail (almost) wherever its captain directs, including through territorial waters. A coastal state may not harass, stop, or exclude a ship from any waters.
To qualify, the ship’s journey must be ‘continuous and expeditious’ (lawyer talk for don’t loiter), and ‘innocent’:
[P]assage is innocent so long as it is not prejudicial to the peace, good order, or security of the coastal State
- Article 19 of UNCLOS
Random anecdote: in 2014, I attended a conference at the US Naval War College. The US was trying to build international support for a right to ‘interdict ships on the high seas’. In plain English, US officials wanted the right to ‘stop and frisk’ North Korean ships suspected of carrying drugs and weapons. Did I mention that the US is one of three countries that hasn’t ratified UNCLOS?
The hotspots of (not so) innocent passage
The Biggun’: the South China Sea (SCS).
There are two complex issues at work here:
China claims a frankly absurd amount of the SCS as territorial waters under what it calls the ‘nine-dash line’. Part historical fiction, part entirely fiction, China’s claims were rejected by the Permanent Court of Arbitration in 2016 (see Secretary Blinken’s tweet above).
China requires ships to apply for permission to sail through the SCS, contrary to international law.
That’s why you might have heard about naval task forces sailing through the SCS on what navies call ‘freedom of navigation operations' (FONOPS).
FONOPS are a way for other countries to tell China:
we don’t accept your territorial claim to the nine-dash line;
and even if we did, we don’t accept that we have to apply for permission to sail through the SCS.
Crimea: recently a sodden pile of top secret documents was found at a bus top outside London. The documents revealed details of the British warship HMS Defender’s ‘innocent passage’ within 12 nm of Crimea on 23 June. Whether this was Ukrainian or Russian territorial waters is another dispute entirely.
Arabian Peninsula: a timeless classic. The natural choke points in the Persian Gulf and the Gulf of Aden have led to countless freedom of navigation skirmishes. Gulf is such a weird word.
Why do navies insist on measuring their… ships?
If you have a sibling, did you ever divide a room into two and banish each other to your own sides? How long did it take one of you to stick a toe over the line, just to see what happened?
If the other sibling reacted violently, a more persuasive boundary was established.
But if that sibling ignored the transgression, the territorial division of the room soon wasn’t worth the chalk line that demarcated it in the first place.
Congratulations 🎉, you now completely understand the dynamics of maritime-based geopolitical conflict.
But for the sticklers among you, here’s a more profesh answer to the above question:
to reassert a legal position: courts will often decide territorial claims based on how countries have acted over time. Have they always acted consistently with the position they are now claiming, or is this an entirely new territorial claim?
to show force and build a narrative: when HMS Defender transited Crimea last month, there were several journalists on board. Those journalists dutifully snapped pictures of Russian warplanes and reported that Russia responded aggressively. The UK Government would like you to remember that Russia is very scary.
to gauge an adversary's reaction: a country’s reaction to FONOPS can tell you something about the chain of command, response times, intelligence capabilities, and perhaps even the psychology of its leadership.
The ‘Law of the Sea’ provides the most predictable and safe framework for diplomatic and military skirmishes.
I certainly don’t mean that FONOPS aren’t dangerous. But the relative clarity of international maritime law, the slow pace of warships, and the distance from civilian centres, all mean that if you’re going to play these military-measuring games, it’s best to do it at sea.
That is of course a double-edged cutlass. Because these contested bodies of water are skirmish destinations of choice, they are also more likely to be the scene of a tragic accident or, even worse, the start of a war.
In fact, if I were a betting man, and I am, I’d wager that the next major world conflict will kick off in the South China Sea.
🌊 Deep-sea mining: a race to the bottom
This week, I mined the depths of my krill-er humour to bring you this rare gem on the current geopolitics of deep-sea mining. OK, sorry, I’ll stop with the sea-ly puns before they get out of sand.
ICYMI, Nauru, the small Pacific island-state, recently nabbed global headlines. If you haven't heard of Nauru, here are two things you need to know:
The 21 km² island is coated in a thick layer of guano (aka migratory bird poop that makes for top-shelf fertiliser).
Its main 'industry' is hosting Australia’s most notorious offshore immigration detention facility.
But this week, Nauru’s President Lionel Aingimea announced to the United Nations that Nauru, in partnership with mining company, The Metals Co, plans to start extracting precious metals from its surrounding seabed, a.k.a. deep-sea mining.
This announcement is important because it gives the UN only two years to finalise deep-sea mining regulation before Nauru breaks… water. Interestingly, two years on planet International Law world is roughly equivalent to 12 earth seconds - not enough time to achieve anything.
Nauru’s announcement triggered a tsunami (sorry) of international reactions, including from neighbouring Pacific states, the EU, civil society, multinational corporations, stock markets, and, most importantly, living treasure Sir David Attenborough 🌏 .
The Wild Pacific: the gold rush of our times
What is deep-sea mining?
Deep-sea mining is the extraction of mineral deposits from the ocean’s floor from depths of 200 metres or more. ~65% of the Earth’s total surface qualifies as deep-sea ocean.
Deep-sea mining only became a thing in the 1960s, when geologist John Mero Jr. wrote of the ocean bed’s ‘limitless’ abundance of precious metals, such as copper, cobalt, and nickel: a.k.a. the stuff that powers our high-tech smartphone and electric vehicle batteries.
These delicious minerals come primarily from the ‘Clarion-Clipperton Zone’ (CCZ), a deep-water plain which extends across 1.7 million miles of ocean floor between Hawaii and Mexico:
Why isn’t deep-sea mining already a thing?
Until recently, technological challenges and low metal prices gave little incentive for anyone to pursue deep-sea mining. But dwindling minerals deposits on land and our thirst for metals have reinvigorated a desire to dig at the bottom of the ocean.
This is especially the case for Pacific island states hunting for income after Covid-19 battered their tourism-reliant economies.
Who’s in charge… wait there is someone in charge, right?
Not someone, but rather 167 countries are in charge. The UN Convention on the Law of the Sea (aka John’s first love 😍) set up the International Seabed Authority (ISA) to regulate deep-sea mining in 1994.
So far, the ISA has granted ~30 deep-sea exploration contracts to private companies, which allow these companies to prospect for minerals on the seafloor.
Also, the ISA is headquartered in Jamaica, which might explain why I’ve just received a text from John saying that he’s seriously considering other opportunities.
Deep-sea mining: for and against
Not all mining = ☠️ for the Earth:
Deep-sea mining is less damaging than land mining, e.g. on freshwater ecosystems, indigenous peoples, carbon-storing forests, and flora/fauna. New technologies are less intrusive, and vacuum up the seabed rather than drilling into it:
Compared to land deposits, deposits found in the deep-sea are richer and of better quality. This creates a more carbon-efficient production process with reduced energy consumption - there’s enough to fuel a global fleet of Teslas (Elon no doubt frothing at this).
The ISA will (in theory) distribute funds from deep-sea mining to emerging economies because the deep-sea is a ‘common heritage of mankind’ under international law.
The practice gives cash-strapped Pacific-island states like Nauru more control over their economic destinies.
The status quo for traditional precious metals mining is not sufficient or sustainable - deep-sea mining presents a more viable, long-term alternative.
Opponents of deep-sea mining say we’re all Jon Snows and know nothing. We’ve explored even less of the ocean than we have outer space:
Unlike landmines errr... mines that are on land, there’s very little monitoring and inspection for deep-sea mines, which means operations may not be held to a high standard.
The lack of studies on the environmental impacts of deep-sea mining means there may be irreversible damage done to Earth’s primary ecosystem.
The ‘less invasive’ technologies for deep-sea mining still cause enormous disruption to marine life ecosystems, e.g. by stirring up seabed sediment, causing noise pollution, and increasing water temperature.
Like other UN bodies, the ISA is still political, and has the arguably conflicting mandate of both facilitating deep-sea mining and protecting the deep-sea environment.
The fact is, scientists simply don’t agree on whether deep-sea mining is a good or bad idea.
That uncertainty means that politicians, companies, and environmental groups can plausibly argue either side of the issue, depending on their interests. Just last month, the European Parliament called for a moratorium on deep-sea mining until we know more about the ecosystem.
Surprisingly, companies like BMW and Volvo backed the call, despite their plans to shift towards electric vehicles that require ever-more precious metals. Perhaps we’ve reached a stage where potential environmental harm is more important to corporations than profit.
Or perhaps they know something we don’t…
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➕ Extra intrigue
This month, WTO members should reach an agreement to curb harmful fishing subsidies that contribute to overfishing. There have been “genuine attempts at compromise” according to negotiators, but the deadline this month will test whether the WTO is able to turn positive momentum into actual outcomes.
Over the weekend, protests by supporters of former-President Zuma in KwaZulu-Natal and Gauteng provinces in South Africa turned violent, killing at least 45 people. Zuma was jailed for failing to attend a corruption inquiry, leading to riots, highway blockades, and lootings. Zuma hopes to get the sentence reduced (obvs), but legal experts say his chances are slim.
Haiti’s President Jovenel Moïse was assassinated last Wednesday in his private residence. The operation involved 28 people, including Colombian mercenaries with links to a security company in Florida. The police chief accused Haitian-American doctor Emmanuel Shanon of masterminding the operation, stating that Shanon wanted to become Haiti’s next president. Not even Bond films are this wild.
Iran’s new president-elect Ebrahim Raisi was the target of cyber attacks last week. Hackers attacked Iran’s railway system, causing massive delays. As a final flourish, the hackers directed commuters to the Supreme Leader Ali Khamenei’s office phone number for customer service, leading to millions of one-star Google reviews for the Supreme Leader. Okay, the Google reviews bit didn’t happen, but everything else did.
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