READ: Sea Change: Challenging the International (State) System (Kylar Cade)
American University of Beirut: Politics of the Sea
By: Kylar Cade
“This Convention will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations in conformity with the principles of justice and equal rights and will promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles of the United Nations as set forth in the Charter,...” These words ring well in a global environment marked by a lack of fulfillment of peace, cooperation, justice, social advancement, and the other objects to which the United Nations Convention on the Law of the Sea (UNCLOS) should work towards advancing. Recent years have seen thousands of deaths of migrants on the Mediterranean Sea and the securitization of ports and the continued operation of offshore tax havens and flags of convenience, both of which support a capitalism that has encroached on the lives of many with disproportionate benefits and losses.
As the effects of climate change have been making clear, seas are key to balancing life on this planet--everyone has the potential to be affected. Changing seas, whether it be in the form of increased acidification, higher temperatures or its rising level, demands a sea change in human-to-human (e.g. government-society, business-society, community-community) and interspecies interactions. Whatever measures and countermeasures are put in place to reverse, adapt to and/or mitigate effects of climate change, states will no doubt play an outsized role as the most prominent subjects of international law. Yet there has been an expansion of subjecthood to commercial enterprises (arbitration) and the individual human being (criminal law), and there exists a plethora of actors and networks, connections and flows that transcend borders.
Tellingly, in the words of law professor Mégret, who writes of and quotes German legal scholar Itamar Mann: “the focus on the High Seas ‘allows access to aspects of our experience that may otherwise remain concealed’” (p. 381). The fluidity of the seas gives it a latent quality and it also provides a space of commons and a place where new modes of human solidarity can be tested and challenged.
The International (State) System
Law upholds the international system, an imaginary that gives its authors--states--the justification and source by which they can pursue their political and economic interests, both of which in turn can be centered on further imaginaries. Hence borders can be opened, closed or managed in such a way as to permit select individuals to enter or be denied access and commons can be exploited, regulated or left untouched (at least temporarily). Furthermore, the relationship between law and state is one of property, the latter controlling or regulating it by means of the former and the former further cementing this process. Originally, monarchs took the place of states and they viewed themselves as owners of the property of the territory of their reign; this dynamic was transposed into the relationship between modern states and their interaction with each other, each having sovereignty over its “property” whereas the state and property came to have less of an entwinement domestically. Thus, international law, such as UNCLOS, is very much state-centric and an unnecessary tension is seen between society and property, to the detriment of other actors such as individuals, non-governmental organizations (NGOs) and businesses, especially considering that nowadays political participation of the population and the associations and enterprises they form is called for (Allot, pp. 769-772).
Nevertheless, “[i]f one were seeking to determine the natural relationship of humanity to the sea, one would certainly not begin supposing it to be a relationship involving a set of assorted so-called states” (Allot, p. 772). Later, the opening up of politics of the seas will be seen.
Challenging the International (State) System
State dominance in international affairs is tightly entwined with law. Yet the very law that upkeeps the status quo is not solid as there are gaps (Mann) and areas that it does not cover, at least not thoroughly, but which it still seeks to and in practice can influence. One such area is that of the high seas where, piracy and maritime civil disobedience and direct action take place beyond the borders of states, the former for personal gain and the latter two for reasons of solidarity and/or to uphold the commons.
Borders
It has been noted that there has been a “proliferation and heterogenization thereof…[and] new experiences of space, often mediated by new information and communication technologies; new practices of mobility; new assemblages of authority, territory, rights...all concur to produce a geography of power, accumulation, and struggle” (Mezzadra & Nielson, p. 302). And struggle there is, though it is not new. It took place for example in the context of the issuing of letters of marque (“which [signifies] “boundary” and “border” (Cowen, p. 141)), which saw state-backed ‘piracy’/privateering, only for the issuance of the letters to be stopped in order to facilitate the rise of capitalism in the form of the Atlantic slave trade. Thus, those individuals who were once positively sanctioned by governments were then deemed to be hostis humani generis, against all states and, consequently, liable to be the target of all.
Cowen reveals how the very identification of the term ‘pirate’ is connected to the modern international system of states, which is predicated on the existence of a legal order that includes an ungovernable space--the high seas--beyond the jurisdiction of governments. And so even “as national states assumed a monopoly on political authority, so too was violence...de-democratized, demarketized, and territorialized” (p.140), it is at a state’s discretion whether or not to pursue, say, a pirate, in the high seas. This is a legal and conceptual border that is reflected by the ‘border’ activity of NGOs; that is, within the past years, such organizations have acted in ways that are on the border of revolutionary/disobedient and obedient, as deemed by Mégret. In fact, the Sea Shepherd Conservation Society (Sea Shepherd), an environmental NGO, has experienced its being labelled as a terrorist, a relative of the pirate, by Japan in its direct action against whalers by means of “boarding, ramming, disabling and scuttling whaling ships” (Mégret, p. 374) (among other actions).
Less revolutionary and more creative is NGO Women on Waves (WoW) performing abortions on their ship(s) on the edges of the oceanic borders of states that at the time did not permit that medical procedure on their territory. SOS Méditérannée (SOS) rescues shipwrecked migrants at least in the maritime commons/high seas, an area beyond the legal territorial limits of states.
Each of these three NGOs find themselves at the legal ‘borders’ of both territory and legal thought. The former was determined in relation to WoW and SOS. But possibly more consequential to the functioning and survival of international law is the stretching of legal thought to justify their actions, thus attacking the system from within. Sea Shepherd, as stated on its website according to Mégret, “assume[s] a law enforcement role as provided by the United Nations World Charter for Nature,” in connection to Article 21 and/or Article 24, and works in relation to International Whaling Commission regulations (p.374). WoW looks to UNCLOS and human rights law to back its action, and SOS on Article 98 of UNCLOS.
Additionally, in possible contradiction to the primary role and subjecthood of states, a number of these very actors have not prevented such NGOs as mentioned above from doing what only states should do according to international law--enforcement of law. “The attitude of many States…[has] been one of relative laissez faire, bordering on acquiescence” (Mégret, p. 387). This paucity in strong counteraction could simply be an acknowledgement of the complex reality of international governance and affairs these days whereby states cannot do everything and there are a plethora of other actors, such as NGOs.
Commons and Commonality
Tied to borders is the observation that “[b]order struggles are prominent among struggles to establish and maintain commons, because the latter necessarily face questions of limitation, space, scale and capital...they [can] pose a strong challenge to understandings and practices of the common predicated on the appeal to an already existing and forever bound community” (Mezzadra & Nielson, p. 306). Commons are pursued because of the commonality that is assumed to be had among people, and even with animals: the need for a habitable place and both healthy environment and consumables; this produces solidarity on the part of individual persons and groups towards others. But limited resources and/or desire for power, control and (ir)rational self-interest produces contestation of the commons and a narrowing of the definition of community, from inclusive to exclusionary.
The struggle is real in the cause of solidarity and the securing of access to and maintenance of the commons. For example, “Malta and Italy have held rescue vessels such as the Sea Watch 3 and the Iuventa...In Greece, solidarity volunteers such as Syrian swimmer Sarah Mardini (23) and Sean Binder (24) have been detained for long periods of time” (Mann, p. 599). Earlier this year, a trial was launched in Greece against over a dozen people involved in helping migrants who had traveled on the Mediterranean and/or another sea. There are also the contestations on the part of coastal residents and others to ensure that EU marine spatial planning (MSP) takes their interests into account, an interaction that is potentially one-sided in favor of the planners. The “participatory ecosystem-based MSP as a site of politics in which restrictive regulatory frameworks, knowledge epistemologies,...particular constructions of the marine “problem”,...may function to govern subjectivities and knowledges towards preconceived neoliberal MSP objectives and outcomes while marginalizing their alternatives” (Tafon). For example, the preference for a science that is deemed more rational and relevant than experiential knowledge of locals. A commonality of language could help to cultivate a commons.
Furthermore, when states have already agreed to bind themselves to international law, such as UNCLOS, which “is hardly indifferent to the importance and even centrality of obligations to rescue the shipwrecked, freedom of navigation…; international environmental law...to the protection of fishing stocks and whales”, it is no wonder that NGOs and activists think that they can justify themselves with “the right to fulfill an obligation...in fulfilment of a prior injunction orchestrated by the international community itself” (Mégret, p. 387, 388). He goes on to state that “[i]t is almost as if that common space [oceans] were, by nature, more susceptible to incarnate some of what are, at any given time, the prevailing ideals of the international community” (p.388) when talking about the occurrence and then abolition of the slave trade.
Whereas letters of marque were earlier used for narrow interests (not in furtherance of a solidarity), and flags of interest may be used for ill-purpose these days, the pursuit of commons has rendered the equivalent of such letters (state funding) and flags of interest as tools for NGOs, such as SOS (Mégret). For example, an NGO can select for its ship a flag country that is indifferent and/or will not interfere with the activist performance. Separately, “rescue activities are a form of transnational civil disobedience that should be recognized as part and parcel of international law...It is thus not human rights tribunals or committees...that has the primary responsibility to provide accountability where no other accountability exists” (Mann, p. 616). He sees accountability as residing in the people who work for NGOs.
Democratic Action and A New World System
The inconsistency that arises between borders (of states, and the sovereignty and representation of the people that springs forth from such delineations) and the commons (of the welfare of all humankind, and the particular ways in which it is manifested, from indigenous conceptions of specific waters being animated by spirits to local communities basing their livelihoods on adjacent fisheries to multinational corporations operating their supply chains across oceans) impacts democratic action. Relatedly, “it is a matter of realism for the political project of the common to refuse the idea of positioning itself within existing bounded institutional spaces and to look for the necessary production of new political spaces…[where NGOs...attempt] to introduce criteria of transparency and accountability into the structures of global governance” (Mezzadra & Nielson, p.303-304) at the state, sub-state, supra-state and extra-state levels.
Before moving non-state political spaces, it must be seen that human rights arise on the basis of and in relation to states. Hence, Mann thinks it appropriate to suggest, at least with regard to assisting shipwrecked refugees, that the rights of “solidarity activists” (such as those who work for SOS), which are founded on their citizenship of a state that grants those rights (as per national and international law), provide them with a right to perform rescue at sea. More in line with solidarity
New political spaces have already been developed, and in the case of this paper, the sea has been one of them. Moreover, in the case of the sea, this development took place centuries ago, although the manifestations and implications now are different because of the modern international (state) system, among other changes. “The pirate ship was democratic in an undemocratic age…[and] was egalitarian in a hierarchical age, as pirates divided their plunder equally, leveling the elaborate structure of pay ranks common to all other maritime employments” (Linebaugh & Rediker, p. 162, 163). This hydrarchy was juxtaposed with that of the state’s very own, the many-headed hydra of dispersed and decentralized protestatory movements of a multifarious and multinational crew striking at different instances, even after one movement (head) had been put down (cut off) by the authorities.
And just as WoW not only challenges international law and the preeminence of states in countering the patriarchal idea of the role of women in society, so too did female pirates in the eighteenth century, “[o]perating beyond the reach of the traditional powers of family, state, and capital, and sharing in the rough solidarity of life among maritime outlaws,...at a time when the sphere of social action for women was narrowing” (Linebaugh & Rediker, p. 167).
In this day and age, besides the import of attacks on democracy, the lack of equality, oppression, and women’s issues, there is also the potentially existential problem of climate change, and the sea change that entails. Helpfully, “[t]he naturally communal character of the sea space is no longer so clearly differentiated from the no-longer-exclusive character of land territory” (Allot, p. 767). In other words, the once strong territorial sovereignty of states has been diminished. And with the view that the sea is crucially connected to land and air, is the same author’s view that it should be moved “out of its anachronistic social and legal isolation, to integrate it into the total social process of international society...The sea is naturally neither mare liberum (Grotius) nor mare clausum (Selden) but mare nostrum (our sea)” (p.768, 773).
What needs to take place is what Allot terms a new international law of the sea, although it does not necessarily need to be just as he says. UNCLOS, in his view, was promising in its language and/or spirit, moving beyond “traditional property relations,” distinguishing between different types of states (which would affect their needs), and its inclusion of “social objectives” (pp.784, 785). The new law would make room for the participation of the public and its accountability of government, which would be so constitutional (given this feature domestically), though it be at an international level.
The sea is a space where contestation and democratic action can take place. The public should make use of it while it can, before international law is generated that continues state-centricity and decreases the opportunities for challenging the status quo.
References:
Allott, P. (1992). Mare Nostrum: New international law of the sea. American Journal of International Law, 86(4), 764-787.
Cowen, D. (2014). The Geo-Economics of Piracy: The "Somali" Pirate and the Remaking of International Law. In The Deadly Life of Logistics: Mapping Violence in Global Trade (pp. 129–161). essay, University of Minnesota Press.
Linebaugh, P., & Rediker, M. (2013). The many-headed hydra sailors, slaves, commoners, and the hidden history of the Revolutionary Atlantic. Beacon Press.
Mann, I. (2020). The Right to perform rescue at sea: Jurisprudence and drowning. German Law Journal 21, 598–619. https://doi.org/10.1017/glj.2020.30
Mégret, F. (2020). Activists on the High Seas: Reinventing international law from the Mare Liberum?. International Community Law Review (2020) (non edited version, consult ICLR for finalized version), Available at SSRN: https://ssrn.com/abstract=3691932 or http://dx.doi.org/10.2139/ssrn.3691932
Mezzadra, S., & Neilson, B. (2013). Border as method, or, the multiplication of Labor. Duke University Press.
Tafon, R. V. (2018). Taking power to sea: Towards a post-structuralist discourse theoretical critique of marine spatial planning. Environment and Planning C: Politics and Space, 36(2), 258–273.