A threshold question for designing liability rules is the degree of fault required to impose liability. This chapter begins with a discussion of the policy considerations that underlie the policy choice between strict liability and due diligence approaches to liability and an examination of the distributive implications of this choice. The chapter then describes the approaches to standards of liability found in the law of state responsibility and civil liability regimes, before examining the specific fault requirements that structure liability in the Antarctic, deep seabed and high seas regimes.

This chapter provides a brief overview of the international law relating to liability for environmental damage, and identifies, on a preliminary basis, potential issues arising in developing and applying liability rules in respect of environmental damage in areas beyond national jurisdiction (ABNJ). The chapter provides an overview of the current legal and institutional arrangements governing the ABNJ that are the focus of the book -- Antarctica, the deep seabed and the high seas – as well as highlighting some of the environmental risks posed to these areas by current and prospective activities.

Chapter 3 elaborates on the linkages between technology and international institutions. It also introduces the guiding questions at the core of the book: how do international institutions respond to the promises and perils associated with transformative novel technologies? When do international institutions respond, when do they not respond, and why do their responses differ? Finally, how could institutional responses be designed in order to better facilitate the realization of technological promise and the avoidance of perils? The chapter contextualizes these questions within broader theoretical discussions in international regime theory and cooperation theory. A key point is that international institutions play a limited, albeit indispensable role in the regulation of transformative novel technologies. International institutions are no substitute for regulation at other scales, including at national levels, but are vital for managing the various transboundary aspects of transformative novel technologies.

Chapter 2 discusses the linkages between technology and environmental sustainability. It starts out with some brief context on key concepts in the contemporary debate: transitions, transformations, and resilience. The chapter continues with two concepts that are central for this book: the idea of the ‘techno-fix’, in the sense of technology potentially providing partial solutions for intractable social- and political problems; and the notion of lock-in, where past technological choices may be difficult to revise or reverse in the present. Further, it develops the notion of technological ‘promises’ and ‘perils’ as key elements of my theoretical framework: transformative novel technologies could produce substantial benefits but also give rise to various types of harm, providing a rationale for governance responses that capture the former and avoid the latter. At the same time, transformative novel technologies tend to be ambiguous as the precise extent to which they entail different types of promises and perils is usually unknown, uncertain or disputed.

This chapter introduces the main claims of Democracy and Empire, which reconceptualizes imperial popular sovereignty and self-determination as imperial concepts and constructs. This requires tracing the racial capitalist logics that marked the historical emergence of claims of popular sovereignty in western polities and their reliance on imperial forms of capitalist accumulation and explicating the political ramifications of these material underpinnings. The introduction explains how the book goes beyond existing accounts of white democracy by theorizing the material and ecological components of this form of rule and conceptualizing it as a properly transnational imperial form. Vis-à-vis the literature on popular sovereignty, the book makes the case that popular sovereignty and self-determination depended on popular claims that demanded collective access to wealth obtained by imperial means and required the exploitation of nonwhite subjects. Finally, the Introduction explains how the framework of racial capitalism informs Democracy and Empire’s project and presents its contribution within this approach, to assess the interconnections between different forms of racial subjection, and to theorize migration and nature within racial capitalism. In closing, this section provides a summary of the substantive chapters of the book.

Chapter 6 turns to the potential extraction of metals from areas beyond national jurisdiction: Antarctica, the deep seas and outer space. Each of these areas contains, with varying degrees of plausibility, large reserves of metals that are indispensable for a global transition towards sustainability, particularly in the energy and transportation sectors. At the same time, extractive operations would be virtually certain to generate various types of adverse environmental impacts while also raising challenging questions related to fairness and equity: in different ways, the legal regimes applicable to each of these three areas beyond national jurisdiction give effect to collective rights that are most clearly enshrined in the concept of the common heritage of humanity. The chapter assesses institutional responses to this technological field under three international institutions: the Antarctic Treaty System, the United Nations Convention on the Law of the Sea, and the Outer Space Treaty.

This chapter theorizes social reproduction as one of the material processes that sustains collective wellbeing in democracies. Through a historical genealogy of racialized labor recruitment among Mexican and Mexican-American families, I identify the brown family as both a central unit of support of social reproduction of the US economy and society and a target of destructive measures that made it abject and decimated its own resources for self-care and reproduction. I trace how conquest, settlement, and immigration control in the US Southwest operated subsequently as regimes of domination that guaranteed access to cheap social reproduction for white waged labor. Building upon recent work on capitalism and social reproduction and Black, Indigenous, and Latinx feminist writings, I reconstruct the segmentation of labor that relegated brown workers to physically strenuous work outside and inside the home, while white workers accessed relatively more skilled and less exploitative conditions of labor. Eventually, white women left the home to access paid work. This process entailed attachments to a normative white privatized family, whose existence depended both on the social reproductive work of racialized others, and on its construction in opposition to the active creation of abject nonwhite families, which were posited as deviant and unassimilable.

This chapter opens the exploration of imperial popular sovereignty by developing W. E. B. Du Bois’s notion of democratic despotism, which recasts popular sovereignty in wealthy democracies as an impulse to partake of the wealth and resources of empire. Rather than a self-contained unit, the popular politics of the metropole issued claims to determine themselves (democratically), as well as others (despotically). This entanglement between popular sovereignty and empire works through affective attachments to possessions that require an excessive form of western self-determination that I call “self-and-other-determination.” Racial affective attachments bind citizens to material possessions and each other, but racialized ideologies restrict the range of mutual concern to a limited community, which allows for the imperial exploitation of racialized others, whose work is the basis of the commonwealth. I then engage Saidiya Hartman and Frantz Fanon to show that – despite the transition from formal imperial arrangements toward neoliberalism – affective attachments mutate to allow white polities to remain democratically despotic. I discuss the absence of these questions in the critical literature on self-determination and, in concluding, reflect on the implications of this framework for understanding contemporary right-wing populism.

In the concluding chapter, we take stock of the legal developments that are likely to shape the implementation and further development of liability rules and process in areas beyond national jurisdiction. We argue that the developments in relation to state obligations of due diligence, the widening scope of compensable damages and the potential for more inclusive rights of standing, as well as rights for states to take response measures in areas beyond national jurisdiction, provides a strengthened foundation for a more robust system of state responsibility for environmental harm in areas beyond national jurisdiction. In recognizing that the approaches to civil liability in areas beyond national jurisdiction remain underdeveloped, we examine the central challenges that remain, as well as some modest pathways towards stronger legal accountability for environmental harm in the global commons.

Chapter 7 assesses the overall findings of the book and provides outlooks and perspectives. The responses of international institutions to transformative novel technologies are mostly deficient in that they do not meaningfully contribute either to the realization of associated technological promises or to the avoidance of perils. Exceptions do exist, however, particularly where transformative novel technologies have a strong normative fit with pre-existing regulatory frameworks and can thus be assimilated by them with relative ease. The chapter also offers broader reflections on how to improve institutional responses to transformative novel technologies and then goes on to elaborate on some conceptual issues that have emerged in the previous discussion: from technology and path dependence to the role of the precautionary principle to the potential problem of ‘slippery slope’ effects in research and development. The chapter then tentatively discusses how the theoretical framework of this book would apply beyond the environmental domain. I conclude with some final considerations on the notion of ‘techno-fixes’ in the global politics of environmental sustainability.