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Tuesday, 19 May 2020

Dr Surabhi Ranganathan is a University Senior Lecturer in International Law, a Deputy Director of the Lauterpacht Centre for International Law, and a Fellow and Director of Studies in Law at King's College. She is also a fellow of the Cambridge Centre for Environment, Energy and Natural Resource Governance (C-EENRG). Her research explores histories and politics of international law, with a current focus on the designation, representations and regulation of global commons, especially the deep seabed.

 

'Law of the Sea' is a series of seven essays: Interfaces of Land and Sea; Fragile Ports; Sinking States; Expanding Shelves; Coagulating Islands; Waterworlds; The Out-of-Sight Arteries of Globalization.

These essays were first published on the Joint Center for History and Economics website at Harvard University (January 2020).

 


1. Interfaces of Land and Sea

I write this essay in an office in Singapore, where I have just learnt an arresting fact: that in the course of my arrival, via Terminal 3 of Singapore’s Changi Airport, I must have crossed – on foot – the probable spot where, more than 400 years ago, the Dutch East India Company (VOC) Captain Jacob van Heemskerk captured the Portuguese ship Santa Catarina. This incident – richly narrated by Martine van Ittersum in Profit and Principle – was a critical event for international law; from it emerged the brief that became one of the discipline’s foundational texts. While Hugo Grotius wrote Mare Liberum (or The Free Sea) under commission from the VOC, his arguments transcended this specific context to become the accepted doctrine that would long define legal engagement with the ocean.

Yet, over this period, and in an accelerated way in the 20th century, our sense of the physical differences between land and sea have undergone a shift. It is recognized, in the law and outside, that the ocean is akin to land in being divisible and appropriable. Its resources are exhaustible, and cultivation – e.g. aquaculture – is increasingly seen as essential to assure the supply of fish. A dense network of legal rules on access, use-rights, and responsibilities regulates the crowding conglomerations of interests in the oceans. In The Social Construction of the Ocean, Philip Steinberg suggests that ‘great void’ conceptions of the ocean conflict now with the evident and on-going territorialisation of ocean-space.

The law has been called upon not only to reflect the resemblances between land and sea, but also address the mutability of the relationship between the two. This mutability may follow as an intended consequence of human enterprise, i.e. projects of ‘reclamation’ such as that which accounts for the site of Terminal 3 of Changi Airport; indeed, Singapore today boasts of a 25% increase of its total land area over the past 200 years due to such projects. It may also follow, however, as an unintended consequence: with rising sea levels betokening the ocean’s own reclamation projects in the opposite direction.

This sequence of essays explores the imprints of climate change, and legal responses to it, within such and other interfaces between land and sea. The changing relationships between them provide evidence of climate change’s causes. They help us visualise also its likely consequences, as the fixed certainties – soil, resources, infrastructure – that govern our imagination of land begin to fall apart. And, they confront us with the irony that these very losses and uncertainties are driving new expectations of, and investments in, the sea.     

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2. Fragile Ports

First in his novel, The Hungry Tide, and then in his lectures on climate change published as The Great Derangement, Amitav Ghosh narrates the story of ‘one of the first Cassandras of climate science’, a mid-19th century Englishman living in Calcutta, called Henry Piddington. Piddington, an amateur meteorologist, raised early alarm about a project initiated by the (British) East India Company to construct a new port city on the banks of the Matla river in Bengal. This port was envisaged as an alternative to the older Calcutta port, which, although a major centre for the Company’s shipping operations, lay further inward from the Bay of Bengal. In 1853, in a pamphlet addressed to the Governor-General of India, Piddington warned that the planned new port would be far too exposed to a storm surge:

‘[E]very one and everything must be prepared to see a day when, in the midst of the horrors of a hurricane, they will find a terrific mass of salt-water rolling in, or rising up upon them, with such rapidity that the whole settlement will be inundated to a depth from five to fifteen feet.’

Ghosh tells this as a tale both of hubris and of forgetting. The engineers constructing Port Canning took notice neither of Piddington’s warnings, nor of the local knowledge signified by the river’s very name: matla means intoxicated or crazed in Bengali. Forgetting, says Ghosh was also at work in settlements elsewhere: in Bombay (Mumbai) and New York, Hong Kong and Singapore, all built on fragile cusps of reclaimed land open to the ocean, unlike the sheltered older ports – London, Lisbon, Stockholm, Amsterdam, Guangzhou, Malacca, Cochin, Dhaka and others; in the premiums attached to beachfront locations all over the globe; in the deliberate neglect of the tsunami warnings inscribed in medieval stone tablets placed along the Fukushima coast, saying in Japanese, ‘Do not build your homes below this point!

Rising sea waters will flood all these great hubs of human life, impacting millions of people. Of these, the worst affected will be those who have settled there neither due to hubris nor forgetting, but because dispossessed of homes and livelihoods elsewhere. Some, among them many Bangladeshis and Syrians, will be made climate refugees twice over.      

 

3. Sinking States

If mass displacement due to rising sea levels is the threat hanging over Asia’s millions, another kind of loss may be in store for their oceanic neighbours. Several Pacific Island states, among them Tuvalu, the Marshall Islands, Kiribati, and the Solomon Islands, face the prospect of a total extinction of their land areas. So do the Maldives and Seychelles in the Indian Ocean. Their low elevations make these states particularly vulnerable; several have already seen a significant percentage of their land disappear under water.

In legal terms, this possibility of total loss of territory raises further questions, beyond the important ones of resettling the populations of these states. These have to do with whether these populations will become stateless peoples. International law indicates certain criteria which much be fulfilled for a state to come into existence; inter alia there must be, to use Judge James Crawford’s phrase, ‘a territorial community under government’. What then to make of islands which will no longer be able to support a territorial community?

Even as they prepare for the practical exigencies of dislocation, these threatened island states are understandably concerned to maintain their independent sovereign status. Some have explored the option of acquiring new land: in 2014, in a desperate measure after a World Bank led adaptation programme was perceived to achieve only doubtful success, Kiribati paid out a sum of $8.77 million to the Church of England to purchase 20 square kilometres of land on a Fijian island. According to former President Anote Tong of Kiribati, who oversaw the transaction, this area may become the new home of his state’s 110,000 people. Yet, while such purchases may confer ownership of property, they cannot confer sovereignty – that must be agreed with the ceding state. Such agreements are difficult to secure. Jane McAdam relates the previous experience of Nauru, which, having suffered massive environmental damage due to irresponsible phosphate mining under the trusteeship of Australia, New Zealand and the United Kingdom (later the subject of a proceeding brought by Nauru before the International Court of Justice) had sought resettlement on a new island. Australia, willing to offer Curtis Island for the purpose, categorically refused to transfer sovereignty over it to Nauru.

International lawyers have responded to this unfair eventuality with the suggestion of ‘freezing’ the baselines from which the maritime claims of such states are measured; so that later decreases of land will have no effect on their resource entitlements. Implied here is the adoption of a collective legal fiction, an unconsciousness mental stretching of the area of each sinking state to maintain an agreed upon square mileage. Part of the elegance of this proposal is its reversal of decades of cartographic practice, which has facilitated our common mental diminution of their significance.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4. Expanding Shelves

As you walk into the ocean, crossing the low-water baseline, the ground gently declines. If you walk out far enough – of course, by now, well underwater – you will reach a point where it suddenly falls away from your feet. This may be for many reasons: a shift in the sands; or you may be teetering at the edge of a canyon. Or you may have discovered for yourself the edge of the geological formation known as the continental shelf.

The continental shelf is a ubiquitous feature of coasts around the world. It is not, however, a uniform terrain. Some coasts, such as the Atlantic seaboard of the United States, have a broad continental shelf – gradually declining over a long distance – others, like the US’s own Pacific seaboard, have narrow ones. Some shelves are relatively smooth; others are fissured and fractured by ridges and canyons. Continental shelves give on to a steeply falling continental slope, and then a gradually declining continental rise where the sliding sediments gather. Together, the three comprise the continental margin, distinct in composition from the abyssal plain: the floor of the deep ocean.

Until the Second World War, the shelf was largely governed by the principle of the freedom of the sea. But in 1945, following the discovery of petroleum deposits off its eastern coast, the US issued the Truman Proclamation, asserting jurisdiction over the resources of the continental shelves which were ‘naturally appurtenant’ to its coasts. It thereby set off a long process of ever expanding claims. The initial US claim, limited to the part of the shelf less than 100 fathoms under water, comprehended territory only a few miles out into the ocean (but, given its long coastlines, still a significant claim, obtaining, for ‘the price of printer’s ink’, effective sovereignty ‘over submerged lands equal in [total] area to the Louisiana Purchase’).

However this limit was overcome by two forces. The first was pressure from oil companies, which had developed the capability to extract oil in deeper waters and encouraged states to bring larger stretches of the shelf under national jurisdiction, so that they could offer corporations secure and exclusive tenure over drilling sites.

The second was pressure from states which had narrow continental shelves (such as many Latin American ones), and thus rejected a depth criterion altogether. They argued instead for a distance criterion that would allow all states rights to equal widths of the seabed, regardless of whether the area incorporated included the slope, or rise or even the abyssal plain.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5. Coagulating Islands

The dynamic topography of the Earth owes as much to human processes as it does to natural ones. While volcanoes, earthquakes, landslides, or just quotidian processes of wind- and water-driven sedimentation and erosion can make land appear and disappear, surface changes also result from blasting, dredging, reclamation, and the like – as they do from the melting ice and the rising seas.  

The law addresses such changes in various ways. The doctrines of accretion and avulsion, among others, provide guidance on who has sovereignty over land emerging via natural processes; while the 1982 Convention on the Law of the Sea sets out states’ rights and obligations with respect to the construction of artificial islands. Of course these are matters that give rise to frequent and complex disputes, but the law provides the framework through which the claims may be articulated and adjudicated.

The same cannot be said for a new species of accumulating mass, the so called trash islands. The ocean is today clotted with areas of concentrated plastic wastes that, released from all over the world, collect at ocean gyres. The Pacific, Atlantic, and Indian oceans all have large swirling garbage patches – a recent study suggests that the size of the Pacific patch is about 1.6 million sq. km, close to three times the size of France. The waste is not compacted into a solid body: a part of it is broken down into minute particles, though larger objects also abound; the garbage patches resemble ‘cloudy soup’ -- of enormous proportion (the study estimates a figure of 79000 tonnes for the Pacific patch).

The environmental harms that result from all this plastic are hard to overestimate: 100,000 marine animals are killed or injured by plastics every year; marine animals mistake smaller pieces of plastic for food – harmful to them, and also contaminating to the food chain; larger plastics too disrupt the food chain by blocking sunlight from plankton and other autotrophs. Plastics also leach out toxic substances into the ocean.

Despite a clutch of legal instruments, such as the London Dumping Convention, the MARPOL Convention, the regional OSPAR Convention, and the like, it is difficult to pinpoint responsibility either for creating this mess or for cleaning it up. The plastic comes from everywhere, if more from some places than others, and it collects in areas beyond national jurisdiction. The enormous costs of any clean-up operation deter even states with strong environmental lobbies from taking action in the collective interest. In effect, the garbage patches are a tragedy of the commons.

In September 2017, British media group LADbible and the Plastic Oceans Foundation started an unusual campaign: asking the United Nations to recognise the Pacific garbage patch as an independent country, named the Trash Isles. They have designed a flag, a passport, currency and stamps, and encourage people to register as citizens (nearly 250,000 people have signed up, including David Attenborough and Al Gore). The campaign website states that the Trash Isles can fulfil all legal criteria for statehood, including territory, people, government, and capacity to enter into relations with other states; and that legal recognition of its statehood will entitle the new country to demand cooperation for its clean up from other states.

The arguments are satirical of course; a brilliant pin-pointing of the scale (country-sized!) and social embeddedness of the problem (if we don’t act now, sooner or later, we will all become involuntary citizens of trash islands), as well as the difficulties in finding a solution within the framework of a state-centric international legal system.

In the wonderful Seven-Tenths, James Hamilton Patterson writes of imaginary lands as the product of desire, of the horror vacui generated by the open ocean in the minds of both mariners and mapmakers; one such island, Mayda, appeared on maps from 1400 to 1906, changing locations, but indubitably present. LADbible’s Trash Isles are also imagined, but in fearful anticipation of the real thing, a desertified ocean.      

 

6. Waterworlds

‘Welcome to seavilization’, says the website of the Seasteading Institute (‘SI’). Founded in 2008 by Silicon Valley billionaire Peter Theil and Milton Friedman’s grandson Patri Friedman, the SI is raising investments for the creation of – what they hope will be – mini ocean-floating republics. They describe the aims of their project in terms of ‘making land’ to ease the pressure on crowded urban centres; and fostering ‘societal innovation’, by liberating the residents of these republics from ‘obsolete’ political systems (read welfare and taxes):

‘Currently, it is very difficult to experiment with alternative social systems on a small scale; countries are so enormous that it is hard for an individual to make much difference. The world needs a place where those who wish to experiment with building new societies can go to test out their ideas. All land on Earth is already claimed, making the oceans humanity’s next frontier.’

SI’s pilot project, announced in January 2017, was to be a floating city built in Polynesian waters, off the coast of Tahiti. The city was intended to be composed of several detachable housing units and to accommodate a few hundred people. SI claimed that French Polynesia had agreed to grant autonomy to this city: its residents would choose their legal and political arrangements; Polynesian laws would not apply. This pilot would serve as a ‘proof-of-concept’ and inspire other experiments, including further offshore. In time, the ocean would be occupied by several such sea-steads, that would be hubs for commerce and petri dishes for various experiments in social organization; unhappy residents from one could then move to another, carrying their homes as they might a trailer.

By SI’s own estimation, this is a visionary project. And indeed, there is a form of inventive genius at work here. But in what does it consist? Not so much SI’s architectural plans, which after all recall older blueprints, such as those by Buckminster Fuller and Shoji Sadao, or Kiyonori Kikutake. Not so much also the stupendous feats of engineering entailed, for we have already witnessed the construction of oil platforms, deep sea drilling ships, and artificial islands such as Dubai’s Palm Jumeirah. Jacques Costeau (Conshelf) and the US Government (Sealab and Tektite), even built experimental structures for underwater living. Nor is the SI’s vision of autonomy – a rehearsal of libertarian ideas – a manifestation of inventive genius. Many less literal ‘off-shores’ exist already to protect individuals and businesses from the reach of taxes, labour regulations, and various social and penal laws.

In an online story, Hettie O’Brien examines what may be the actual intent underlying SI’s grand claims: changing on-shore US tax policy, by drawing attention to the threat of capital flight, as well as alternative imaginations of freedom and government. And here is where we might concede SI’s inventive genius: in the account it constructs of seasteading’s legitimacy. Its narrative transforms a plan for socially-insulated, ultra-exclusive, gated communities to a claim of creating new polities. It describes a luxury construction requiring heavy input of natural resources in terms of adapting to climate change. And it turns the idea of the free sea into a suggestion that on the ocean, unlike on land, anything goes.

But the ‘freedom of the sea’ is a legal institution, and private conduct is subject to national and international laws. These can be subverted, but they do not disappear merely because one moves a few miles off land. Ironically enough, the SI’s initial plans rest on the guarantee of a waiver of territorial jurisdiction by host states, not any anterior liberty-granting property of the ocean. Such a waiver may not be easily forthcoming in any case: a year after it reportedly concluded a deal with SI, French Polynesia announced it would no longer proceed.     

 

       

 

7. The Out-of-Sight Arteries of Globalization

In The Undersea Network, Nicole Starosielski offers the following corrections to our intuitive understandings of the global communications network:

‘It is wired rather than wireless; semicentralized rather than distributed; territorially entrenched rather than deterritorialized; precarious rather than resilient; and rural and aquatic rather than urban.’

99 percent of it relies on a technology that remains out of sight, the undersea cable. A very few links – forty-five from the continental United States, less than five from many other countries – extending outwards (and downwards) from each state support the bulk of world’s phone-calls, emails, videos and other digital exchanges. Connected in a hub-and-spoke fashion, with many newer fibre-optic systems mapping onto older telegraph and telephone routes, the submarine cable network has joined lands across the ocean for over a century.

The first transoceanic cable was laid in the mid-19th century, joining North America to Europe via Valentia Island in western Ireland, and Heart’s Content in eastern Newfoundland, Canada. It was laid by the newly formed Atlantic Telegraph Company, promoted by Cyrus West Field; commenced operations on 16 August 1858 with an exchange of greetings between Queen Victoria and US President James Buchanan; and broke down three weeks later. Following the American Civil War, the company – now reconstituted as the Anglo-American Telegraph Company, following several mergers – tried again, and in 1866 succeeded in establishing a more durable connection. Since then, more than 550000 miles of submarine cables have come to connect all the regions of the world.

Yet their ubiquity passes unrecognized, hidden as much by seawater as by ‘a historiographic practice that tends to narrate a transcendence of geographic specificity, a movement from fixity to fluidity, and ultimately a transition from wires to wireless structures’. Apart from distorting our understanding of the mechanisms that underpin global economic exchange, such a historiography occludes the social and environmental toll of submarine cables, as also the regulatory gaps that leave them vulnerable to damage.

In South East Asia, the impact of cables had preceded their presence; their distant use locally producing ‘a Victorian ecological disaster’. In the 19th and early 20th centuries, cable wires used to be wrapped in a naturally occurring latex called gutta percha to insulate them from seawater. This grew in the rainforests of (what were then) British Malaya and Sarawak, the Dutch East Indies, and French Indochina. By John Tully’s calculations, around 800,000 trees were felled to supply insulation for 1858 transatlantic cable. By the early 20th century, submarine cables had accounted for the destruction of 88 million trees.

Present-day cables rely on another Asian resource: rare earth minerals. China provides 95 percent of the world’s supply of these minerals, which are also used in the manufacture of smartphones, computers and aircraft. In 2015, a BBC story describing the environmental effects in Baotou, Inner Mongolia, said it felt ‘like hell on Earth’.

If distant environmental effects are part of the political ecology of submarine cables, so too are the – intensifying – uses of the oceans that pose direct threats to them. Cables are at risk of accidental damage from shipping, fishing, oil and gas extraction, and deep sea mining; as well as, crucially, damage that may be intentionally caused as an act of terror or war. They are at risk, furthermore, from the effects of climate change, such as alterations in temperature and currents, and extreme weather events. They may be put to covert uses such as espionage, or be tapped or hacked themselves. International law offers insufficient protections against all these threats. Cables lie at the fuzzy legal intersection of private (usually shared) ownership and (global) public interest, and the law – emphasizing the freedom to lay them – offers limited guidance on the rights and responsibilities that follow.

A current venture spearheaded by three international organizations might provide the catalyst for more comprehensive legal regulation. The International Telecommunications Union, UNESCO’s Intergovernmental Oceanographic Commission, and the World Meteorological Organization are exploring the possibility of using the vast cable network for ocean climate monitoring and disaster warning. Scientists already use cables in marine research, but the telecommunications cable network could produce data at a much greater scale; thereby perhaps also compensating for their ecological costs. The venture has proceeded slowly since first mooted, as many legal and practical hurdles arise. But this is itself a benefit, for we begin to confront issues long kept out of sight.   

 

 

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