Ocean Legalities: The Law and Life of the Sea

Workshop: February 23 & 24, 2017

Abstracts

INTRODUCTION

Untangling Ocean Legalities

Irus Braverman and Elizabeth R. Johnson

In a short introduction to Ocean Legalities, the editors provide a historical and interdisciplinary context for this collection. They review the work that has already been performed in the law/ocean/culture nexus and present the central themes underlying the current collection and the ways in which it radically alters the existing discussion about ocean life and law.

 

SECTION 1. FEEDBACK: HISTORIES, LEGALITIES, AND MARINE MATTER

Fishing as Art, Law as Technology: Herring, Grotius and the Republican Ideal of the Inexhaustible Fishery

Alison Rieser, Geography, University of Hawaii

The Atlantic herring (Clupea harengus) is a marine animal whose abundant numbers, fluctuating migrations, and schooling instincts inspired many juridical and biological ideas about life in and on the ocean. These ideas in turn shaped Western notions of the economy’s relationship to the state. From the Middle Ages to the Great War, the properties of herring provided nothing less than the motivation, means, and metaphors for the political evolution of Europe. These means and metaphors include Elizabeth I’s laws on foreign trade and political Lent, Grotius’s theory of free seas, Adam Smith’s warnings about economic nationalism, and Thomas Huxley’s biological justification for laissez-faire in the Industrial Revolution. If cod is “the fish that changed the world,” herring is the fish that made the world need changing.

 

Whales and the Colonization of the Pacific Ocean

Zsofia Korosy, Law, University of New South Wales

From its inception in the late eighteenth century, the Pacific whaling trade involved a complex interplay of nationalities and national interests. Notable in this account is that royalty, nobility and wealthy merchants in distant England and Spain were able to claim legal rights to the cetaceous (and other) life of remote, unseen waters—and to have these rights respected. They were able to do so by demarcating the latitudes and longitudes in which their monopoly zones extended. The work of legal geographers such as Blomley (1994) and Mahmud (2007), along with scholars such as Harvey (1989) and Hau’ofa (1994), allows us to understand the centrality of map-making in assertions of imperial power and its reproductions in international law. By tracing the ways that claims over whales in the Pacific were made and contested, this chapter explores the intersections between cartography, constructions of space, and assertions of legal rights. To the explorer’s eye, the open ocean is flat and featureless. Unlike on land, it is impossible to stake permanent physical boundaries or to communicate claims of dominion by reference to tangible landmarks. As Jones (2016) notes, such claims can only be made through technology and abstraction: technology, in the measuring of longitudes and latitudes and one’s position in relation to them; abstraction, in the reproduction of such measurement into the symbolic form of lines on a map. In their conceptualization of the whale as an exploitable resource, the early British whalers accepted that their rights to hunt and trade depended not on any feature specific to the whale, but on the positioning of their ships relative to these mapped lines. They engaged in renegotiating the placement of those lines, but accepted the underlying assertion that this abstracted cartographical construction circumscribed their interactions with the life of distant seas.

 

Held in Suspense: Chemical Legalities in the Gotland Deep

Astrida Neimanis, Gender and Cultural Studies, University of Sydney

Following World War II, several hundreds of thousands of tons of chemical warfare agents (CWA) were dumped in the world’s seas. At the time it was thought that the ocean would absorb any chemicals that might leak out, underlining a pervasive environmental imaginary that understands water as an alchemical zone for magically disposing of our anthropogenic detritus: the sea is so vast, so deep, so un-terrestrial, that surely anything we do to it would be literally just a drop in the ocean. Yet despite being dumped with casings intact, these CWA pose various threats: spontaneous detonation, reactivation when disturbed through fishing, dredging, and pipe-laying, and more pervasive contamination of marine ecosystems. These threats each highlight the complex spatiotemporal modes of oceanic anthropogenic incursion; in the ocean, space and time have different logics. In this chapter, I use concepts from the feminist posthumanities, such as transcorporeality (Alaimo 2010), thick time (Neimanis and Walker 2014), posthuman gestationality (Neimanis 2016), and chemical infrastructures and toxic latency (Murphy 2013) to productively disturb our comfortable western ontologies grounded in terrestrial space, linked to a post-Enlightenment individualism and atomism of bodies. These concepts elicit complex questions about CWA dumping: ‘when’ does this incursion occur, if its affects have not yet arrived, and might never? ‘Where’ is it, if water communicates chemical substances across bodies and ecologies that do not stay put? And perhaps most interestingly: as a powerful solvent, water erases as much as it archives, making it difficult to track these chemical incursions back to their source—so how to attribute accountability when evidence trails disperse and dissolve? These questions in turn challenge the fit of both human and terrestrial legal concepts and premises. While various international legal instruments have been developed to address this problem (The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter; the 1993 Chemical Weapons Convention), this chapter asks about the adequacy of these mechanisms, and the aqueous ecological understandings (or lack thereof) on which they are built. To explore these questions, I will introduce a case study that considers mustard gas dumped post-WWII in the Baltic Sea in an area known as the Gotland Deep, and some of the ways the uncanny legalities of mustard gas continue to surface.

 

Solwara 1 and the Sessile Ones

Susan Reid, Department of Gender and Cultural Studies, University of Sydney 

In Forests: The Shadow of Civilization (1993) Robert Pogue-Harrison recounts how the etymologies of Western law and ecology share a kinship, which has ancient roots in forests and in even earlier concepts of gathering and dwelling. It is an account that suggests and deepens the ocean’s ancient and prevailing outsidedness from these institutions, and the attendant ethical and relational challenges. My chapter considers how the ocean body and its dynamic systems can take us beyond ethics to myriad enactments and offerings of relationality. I import Lorraine Code’s ecological thinking into the ocean domain, bringing it into my engagement with marine scientific texts as a way to discern stories of ocean relationality. Two relational meditations ensue: Scattering layer and vertical migration, which explores the dimensional relations of marine inhabitants and their long-range, cyclical, nocturnal ascensions from the benthic floor and mid ocean zones through fluid vertical layerings to, or near, the moon-lit ocean surface; and Whale Falls and Detritus Rain, which considers the material drifting down to the ocean floor and the lively feedback of dead matter and things to the ocean.

 

SECTION 2. LIMINAL STATES, LIMINAL LEGALITIES

Liquid Territory, Shifting Sands: Property, Sovereignty, and Space in Southeast Asia’s Tri-State Maritime Boundary Zone

Jennifer L. Gaynor, Department of History, College of Arts and Sciences, University at Buffalo, SUNY

This chapter puts the growth of the global dredging industry and its role in massive land reclamation projects at the center of an investigation informed by science and technology studies, political ecology, environmental history, and cultural anthropology to examine spatial changes in what I call Southeast Asia’s tri-state maritime boundary zone. Historically, most states have increased their territory by making land grabs. In contrast, recent territorial increases in Singapore, Malaysia, Indonesia and their surrounding seas have resulted from literally making land. China’s activities in the contested Spratly Islands are only the most high-profile example of construction efforts in which giant suction dredges vacuum up sand from the sea bed, and then spew it out like so much liquid onto a particular shoal until the floor of the sea rises above the high-water mark and effectively becomes "land." Often justified as efforts to mitigate the effects of climate change, such as sea level rise and land subsidence, by dredging and moving sand in these massive land reclamation projects, developers and states have both expanded territory and created a great deal of desirable property. The technological intervention employed for such large-scale land production impacts local ecologies, transforms social relations, and attempts to alter international maritime boundaries. Sometimes pouring sand to make land in one place comes at the expense of accelerated erosion or an island sinking elsewhere. Here, I trace how a subset of these land-making projects resulted in disputes adjudicated or settled through international legal organizations. These projects, with their new technological, geophysical, and ecological realities that alter the littoral zone, present challenges for legal thinking unaccustomed to bridging land and sea, and new arenas in which to analyze the boundary between public and private international law.

 

Edges and Flows: Exploring Legal Materialities and Biophysical Politics at the Sea Ice Edge

Philip E. Steinberg, Geography, Durham University
Berit Kristoffersen, Sociology, UiT - The Arctic University of Norway
Kristen L. Shake, Geography, Clark University

In this chapter, we contribute to a growing body of literature on the ice edge -- a dynamic zone that challenges the fixed ontologies of ocean legalities -- to consider the ice edge’s often neglected biological element. As has been well documented, the ice edge is a fundamental space of primary production, the process by which the sun’s solar energy is utilized in the synthesizing of sugars by organisms. Algal communities in particular are abundant at the ice edge, where they provide the base energy for the marine ecosystem. Plankton consume this energy, and the plankton are then themselves consumed by a complex network of larger marine fauna, including humans. Community in this sense is indeed an appropriate term, as the community of marine plankton species that originates at the ice edge has a vibrancy and vitalism that moves in response to larger order physical oceanographic forcings. Around the ice edge, frontal systems, such as the polar front, interact with wind, temperature, and currents in a web of complexity that confounds attempts to identify discrete tipping points. It is to these larger order, more-than-biological oceanographic forcings and complexities that we turn as we seek to explore how the ice edge upends the assumed static and binary divisions that are the basis of legal reasoning. In doing so, we explore how the ice edge not only challenges divisions between geophysical spaces (e.g. land versus water, water versus ice) or between legal classifications (territory versus non-territory) but also how it challenges assumed divisions between packages of earth system processes and scalar categories. The ice edge forms a vital link between physical, chemical and biological systems, in the polar regions and beyond. We thus extend our past critiques of the ice edge’s geo-ontology to assert that any attempt to rework the ice edge in our (legal or political) worlds must also remain attentive to the ways in which the ice edge confounds idealized divisions between the geophysical, the biological, and the climactic and between local and global processes.  A more-than-human legal geography of the ice edge must account not only for sea ice’s dynamism in both space and time but also for the way that it makes the connections between physical, chemical and biological processes that all too often are perceived in isolation by scientific scholars.

 

Wave Law

Stefan Helmreich, Anthropology, MIT

How are waves in the ocean legal objects? This chapter examines the history of treating waves — as empirical phenomena, as data — as entities that exist within jurisdictions, national and international, and it takes a comparative approach. In the US, waves have been officially considered part of the weather since 1973, when the UN ratified the Convention for the Safety of Life at Sea, which tasked national meteorological rather than oceanographic agencies with wave measurement. In Australia, waves-as-data are curated by states rather than the federal government. In Europe, still other rules pertain. The World Meteorological Organization names only particular features of waves as legally pertinent to ship reports. This chapter dives into the history of these legalities and what they can tell us about how oceanic and human agencies are imagined and institutionalized.

 

SECTION 3: ALTER-LIFE & ALTER-LEGALITIES AT SEA

The Pirate as a Limit of the Human: Siting and Reciting Sovereignty in the Indian Ocean

Stephanie Jones, English, University of Southampton

As a legal term of art, “the pirate” both defines and troubles legal castings of other atypical forms of life. He dis/appears through centuries of national and international legal histories in which he looks-like-but-not-quite a traitor, a mutineer, a terrorist, an exile, a thief. But while the pirate has long been defined by his marginal distance from other forms of life, he has also long been defined by proximity to the sovereign: that is, while the pirate’s short but certain distance from the edges of contiguous forms of life has given him curious definitional power, his uncertain distance from the sovereign compounds his jurisprudential effect and affect.  In this chapter, I read a key (arguably the key) Anglophone story of piracy (A General History of the Pyrates, 1724-26) to interpellate theoretical discussions of sovereignty and forms of life, as well as ideas of sovereignty and forms of life that emerge from the historiography of maritime predation in the Indian Ocean. In doing so, the chapter indicates the potential for tracing a strong genealogy of Anglophone story-telling and legal narrative in which the Indian Ocean is imagined as a site for theorising sovereignty by thinking about pirates. This leads to the further idea that the Indian Ocean is a peculiar and significant citation in Anglophone conceptions of the limit of the human.


Robotic Life in the Deep Sea: Deploying Killer (and Other) Robots to Make Live

Irus Braverman, School of Law, University at Buffalo

In its 2012 report “Losing Humanity: The Case Against Killer Robots,” Human Rights Watch concluded that “fully autonomous weapons should be banned and that governments should urgently pursue that end.” In March 2016, two high-ranking UN experts in the Human Rights Council in Geneva issued a similar report that includes a call to ban fully autonomous weapons, recommending that: “Autonomous weapons systems that require no meaningful human control should be prohibited.” But what if such autonomous killer robots were to deployed against nonhumans—and at starfish in ocean environments in particular—in order to safeguard the increasingly imperiled coral populations of the Great Barrier Reef? Killing is not the only way in which robots have been helping corals. In fact, myriad robots and machines have already been used underwater for several decades, mainly for monitoring and surveillance purposes—and the future promises to present plenty other fanciful applications. My chapter will draw on interviews with conservationists and engineers to explore the relationship between human scientists, nonhuman animals such as the crown-of-thorns starfish and deep sea and tropical corals in the Great Barrier Reef of northwestern Australia, and robotic entities such as the COTSbot, AUVs, and OceanOne humanoids. I will discuss the existing regulation pertaining to the use of robotic devices for conservation and conclude by asking whether it matters, physically and legally, if the acts of making live and making die are carried out by machines rather than by humans

 

Marine Microbiopolitics: Haunted Temporalities and Abyssal Relations

Astrid Schrader, Sociology, Philosophy, & Anthropology, Exeter University

Foucauldian biopolitics—the production and control of standardized life—is not limited to human society, as Cary Wolfe and many others have shown. Even though extendable to nonhuman animals, biopolitical thought and figures seem to remain inherently anthropocentric. One reason for this is that the governance of life has been based on a fundamental distinction between life and non-life, which seems rather inadequate for many nonhuman forms of life. According to anthropologist Elizabeth Povinelli, such an opposition can no longer account for power formations in an age of climate change. In addition to an opposition between life and non-life or bios and geos, biopolitical thought has (more often than not) relied on the distinction between zoë and bios, the mere fact of living or bare life (as Agamben calls it) and ways of life or political life. I am interested here in the relationship between these two oppositions between life and non-life and zoë and bios, and how they are undone by marine microbes, in order to explore a less anthropocentric “marine microbiopolitics.”  I borrow the notion of microbiopolitics from Heather Paxson, who introduced the term to frame questions of food ethics and governance. Together with Stefan Helmreich, Paxson suggests that our accounts of microbial communities have a normative dimension; our view about microbes reflects how the relations between human and other organisms should be. For microbial forms of life, the fact of life cannot be easily distinguished from ways of life, whether the “fact of life” is considered reproduction, metabolism, or includes the ability to cooperate (as John Dupre and Maureen O’Malley argue). If, as Judith Butler points out, for humans “bodily autonomy is a lively paradox,” for microbes it is a death sentences. No single cell survives on its own. But it gets weirder. Take cyanobacteria for example. Those microbes, who 2.5 billion years ago oxygenated our atmosphere, only seem to exist hauntologically. Chronobiologists have shown that they maintain a circadian rhythm, entraining their endogenous clocks to environmental cycles, even though individual cells may not survive a single day. In this case, the life of the individual is haunted by the life of a population in the most physical or material sense. How might the microbes’ haunted temporalities and our abyssal relations to them confound our way of knowing and governing “life at sea”?


Kauri and The Whale: Oceanic Matter and Meaning in New Zealand

Katherine G. Sammler, Geography, California State University Maritime Academy

Aotearoa New Zealand has taken the lead in constructing legislative frameworks for governing emerging activities within the offshore territories granted under the UN Law of the Sea treaty. Passing the Foreshore and Seabed Act in 2004, the government claimed all submerged lands and associated resources as property of the Crown. This controversial law become a focal point for friction between two clashing worldviews: one embracing a western land/sea binary; the other based in indigenous Māori cosmologies, which do not recognize this division, but believe in customary rights from mountains to sea. Māori discourses of cosmology understand land and sea, human and more-than-human as coproduced and emerging relationally. This is demonstrated by the Māori origin accounts of whales and kauri trees, where the tree taught the whale his songs and the whale gave the kauri his oily skin as protection from the corrosive ocean. The ontological rift exposed by the Foreshore and Seabed Act fractured New Zealand society. In the midst of ambitions towards seabed mineral development, it forced reorderings of the ambiguous and unique legal seascape of English customary law, historical possession, and the Treaty of Waitangi. Complicated by delimiting a shifting coastline, it also codifies distinction between resource use, recreation, and navigation on and in the subsoil, water column, and airspace above. While eventually this Act was repealed, struggles nonetheless continue over the status of ocean spaces and resources. Indigenous and transnationalist movements offer an alternative way of governing that extends beyond the essentialism of national sovereignty, imagining and organizing ocean space in ways that offer “a profound alternative to the human presumption of sovereignty over the natural world” (New Zealand Parliament, 2014a). This chapter will engage such alternative ontologies and environmental activism in the sea to suggest new possibilities for imagining and managing offshore spaces, seabed resources, and oceanic life.

 

SECTION 4: REENGINEERING OCEAN SPACE, LEGISLATING THE FUTURE

The Hydra and the Leviathan

Elizabeth R. Johnson, Environmental Studies, Hobart and William Smith Colleges

This chapter will explore how the US Department of Defense and DARPA engineers are reimagining underwater space in the context of twenty-first century “asymmetrical warfare.” In 2013, the US Defense Advanced Research Projects Agency (DARPA) publically announced a new direction in unmanned vehicle development. While the media has lavished attention on unmanned aerial vehicles (UAVs)—commonly referred to as drones—this new program would expand into the space on, below, and above the ocean’s surface. Under the moniker “Hydra”, DARPA is working to build devices capable of performing surveillance and reconnaissance, detonating underwater mines, and delivering various “payloads” in shallow international waters. “Hydra” follows on two decades of research into the management of the violent water space of the “littoral zone” with unmanned robotic craft. Throughout the 1990s and early 2000s, DARPA funded the development of an assortment of small-scale unmanned underwater vehicles (UUVs), many of which operate on principles of biomimicry. Robotic lobsters, clams, tuna, and crabs have all marched (or swam) forth from DARPA’s coffers to demonstrate the potentials of robotics in military security. Beyond territorial containment, I will show how the Hydra program is part of a desire to “secure the volume” (Elden 2013) of underwater space beyond the limits of human life, economic constraint, and the material force of ocean waves. But the development of the Hydra also reflects an increasingly fractured geopolitical landscape, one in which the modes and means of future warfare are difficult, if not impossible, to anticipate (Anderson 2010).

 

The Technopolitics of Ocean Sensing

Jessica Lehman, Geography and the Holtz Center for Science and Technology Studies, University of Wisconsin - Madison

In this chapter, I analyze the impacts of new robotic ocean observing technologies in legal, geopolitical, and affective registers. A new generation of autonomous sensing technologies is revolutionizing oceanography. In concert with satellites, underwater robots roam every corner of the world ocean and remotely deliver temperature, salinity and other data, for a fraction of the cost of ship-based measurements. The data these technologies collect are invaluable to oceanographers trying to unravel the mysteries of climate change and other challenges. They also make oceanographic information available to an unprecedentedly wide audience. However, these new technologies pose serious challenges to conventional regimes of maritime sovereignty, contesting the capacities of individual nations to control who enters their territorial waters and what data is collected there. They also affect who senses the ocean and how, and thus reshape global networks of expertise as well as individual experiences of going to sea for science. While recent scholarship in the humanities has analyzed new representations of the world ocean (for example, Google Ocean), this chapter inquiries into relations engendered by the knowledge practices that underlie these representations. Data products such as Google Ocean are the end result of processes that challenge the United Nations Convention on the Law of the Sea, enlist seals and other marine mammals in data collection, and launch a fleet of technologies with lives of their own, amongst other heterogeneous world-making relations. By taking these registers together I argue that the ocean is reconfigured as a space of potentiality and uncertainty even as it appears to become more transparent to modern technologies.

 

“Climate Engineering Doesn’t Stop Ocean Acidification”: Addressing Harms to Ocean Life in Geoengineering Imaginaries

Holly Jean Buck, Sociology, Cornell University

When discussing solar geoengineering (methods like stratospheric aerosol injection to reflect sunlight), it is commonplace for scholars to note that solar geoengineering does nothing about ocean acidification. Recent research also indicates that carbon dioxide removal or “negative emissions technologies”, most involving CO2 storage, would not ameliorate the effects of previous carbon dioxide emissions upon the oceans for centuries (Mathesius et al. 2015).  However, this often remains a footnote within the broader geoengineering discussion, which typically takes global mean temperature as its object.  In this chapter, I explore what viewing the ocean as an aggregation of life, with rights, would add to the geoengineering governance discussion. The starting point is the Convention on Biological Diversity’s decision X/33, a 2010 decision that called for a technical review of the impacts of geoengineering on biodiversity.  This chapter, however, goes beyond “biodiversity” as an object to address key questions: What does it mean to look forwards towards a technology that potentially ameliorates climate harms and damages for humans (as well as some terrestrial ecosystems), but allows ocean life to continue to die? What kind of vision of ocean lives and processes could make oceans more visible in assessing the potentials of negative emissions and solar geoengineering? And what kind of legal perspective would nudge society towards a more rounded and just outcome of geoengineering deliberation?

 

“Got Algae?” Putting Marine Life to Work for Sustainability

Amy Braun, Geography, University of North Carolina at Chapel Hill

“Got algae?” Riffing off the successful “got milk?” advertising campaign, this t-shirt for sale at the National Center for Marine Algae and Microbiota neatly situates algae as part of a healthy national bioeconomy, in which ocean-based “blue biotech” plays an increasingly prominent role (National Bioeconomy Blueprint 2012). Investments in this blue economy (re)configure global oceans as spaces for “sustainable development” and put algae to work in service of this agenda. These organisms are caught in a tangled web of political priorities: used for a variety of biotech applications from omega-3 health supplements to military jet fuel, algae are positioned as a promising renewable resource to meet human health, environmental, and security needs. This chapter focuses on the development of algal biofuel as a petro-fuel substitute that purportedly avoids the “food vs. fuel” debates surrounding fuels derived from corn and soy. Drawing from Melinda Cooper’s (2008) work on how neoliberalism shapes and is shaped by “emergent possibilities” within the life sciences, I examine how entanglements of genes, human and nonhuman life, institutions, laws, and technologies are shaping algal biotech. Specifically, I ask what property relations are produced through making algal biofuels, and the role of biotech science therein. How does the speculative and promissory nature of marine biotech, coupled with investment in ocean life’s reproductive capacities, affect the property relations informing sustainable development discourses and policies? I suggest that different processes of optimization make and remake algae into alienable objects of accumulation, objects of intellectual property rights, and future energy potential; when united around concerns over ocean health, biodiversity, energy politics, and climate change, these practices strain the legal divisions between subject and object, individual and collective body, and owner and property. Algal biofuels point toward a rethinking of property relations in this era of sustainable development at a nexus of debates around environmental protection, capitalist and military growth, and energy use.

 

AFTERWORD

Stacy Alaimo, Professor of English, University of Texas at Arlington

Alaimo’s afterword will highlight the contributions of this volume and bring together shared themes and insights.