Sunday, May 21, 2023

"The Law of the Sea: Down in the deep, the legal distinction between land and sea no longer holds."

From The Dial, Issue 4:

I write this essay in an office in Singapore, where I have just learned an arresting fact. The legal historians Antony Anghie and Kevin Tan have informed me 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 Santa Catarina, a Portuguese ship. This makes sense: in Martine van Ittersum’s rich description of the incident, she notes that it took place at the entrance of the Singapore Straits. Heemskerk, the story goes, made a wild dash to Johor from Tioman Island upon receiving news that two Portuguese carracks laden with spices, silks, and porcelain, would be moving through the Straits. Having missed the first, he awoke on the morning of February 25, 1603, to find the second, the Catarina, right before his eyes. He swiftly captured the ship just off Singapore’s eastern shoals. In the time since that event, projects of reclamation have increased Singapore’s total land area by 25 percent, and Changi airport occupies one such reclaimed part, sitting where the shoals used to be.

 The Catarina’s capture occupies an important place in the history of international law. The incident was part of an imperial struggle between European states over access to trade with the East Indies. Such trade promised fabulous wealth: the goods recovered from this event alone sold for over three million guilders in the markets of Amsterdam, an amount that was roughly double the capital of the English East India Company. Portugal was outraged by the loss, while the VOC was keen to defend its actions. On retainer from the company, the jurist Hugo Grotius—then just in his early twenties!—wrote a brief that is now regarded as a foundational text,  Mare Liberum, or The Free Sea.  

Grotius argued that the sea was entirely unlike land. Land, being fixed, cultivable and, most importantly, exhausted by its use, could be regarded as divisible, subject to public and private ownership, and demarcated by national boundaries. The sea was fluid and constantly in movement; it was indivisible, unoccupiable, inexhaustible, indeed unalterable for better or worse via human activity. As such, it was irreducible to private ownership or state sovereignty. That being the case, it was Portugal that had acted wrongfully in claiming exclusive rights of maritime navigation and commerce with the Indies.

The Grotian imaginary of the sea persisted for centuries. The principle of the freedom of the seas came to define oceanic activities from navigation to fishing. Indeed, modern international law continues to express a principle of maritime freedom, though it is a far narrower form of freedom than Grotius initially claimed.

Today, international treaties, states, institutions, corporations, and courts all recognize that the ocean is divisible and, in parts even appropriable, in the same way as land. Oceanic resources are exhaustible and can also be enhanced by human endeavor: cultivation through new methods like aquaculture is increasingly seen as essential to assure the global supply of fish. In the decades since the Second World War, a dense network of legal rules on access, use-rights, and responsibilities have developed to regulate the crowding conglomerations of interests and territorial claims upon the oceans.

Moreover, international law has been increasingly called upon not only to articulate the ways land and sea resemble each other, but also to address the mutability of those very categories. Thanks to legal and technological innovations, what was once sea might become land: the reclamation projects that have accounted for the site of Changi Airport are but one example. In the other direction, rising sea levels and intensifying critical weather events can quickly turn what was once land into sea. Down in the deep, the binary between land and sea is confounded by formations which appear as neither fully one nor quite the other.

The shifting relation between land and sea reflects the scale of human impact on the environment. This unstable relation forces us to confront the consequences of climate change, as the fixed certainties — soil, resources, infrastructure – that have for so long governed our imagination of land begin to fall apart.  As a result, we must contend with new expectations of, and investments in, the sea.       


I.   Fragile Ports

A mid-19th century Englishman called Henry Piddington is said to have been “one of the first Cassandras of climate science.” Cassandra, you might recall, is a figure from Greek mythology: a Trojan priestess cursed to be disbelieved despite possessing the power to make accurate prophecies. Much the same was true of Piddington.

An amateur meteorologist in colonial Calcutta, Piddington 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 would replace the older Calcutta port, which, although a major center for the Company’s shipping operations, lay further inward from the Bay of Bengal. Concerned about this project, in 1853, Piddington published a pamphlet addressed to the Governor-General of India. In it, 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.”

The pamphlet went unheeded. The engineers constructing the new 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. Piddington was of course proven right, although he did not live to see it. The new port, grandly inaugurated in 1864, was struck by a devastating cyclone three years later, and the port town was soon abandoned. The novelist Amitav Ghosh tells the story well in his novel, The Hungry Tide, and later in his lectures on climate change published as The Great Derangement. He tells it as a tale of hubris and of forgetting.

Forgetting, says Ghosh, has also been 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 port cities of 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, which read, “Do not build your homes below this point!”.... 

....MUCH MORE 

And for a bit of contrapuntal history, a repost from May 2021:

"Global Warming, It’s Always a Shore Thing"
Cute title. I was going to try to get even cuter with "On this day in history, Jericho founded 9600 B.C.", the joke being that no one knows when/what day Jericho was founded, just that it's been around for a long, long time.
As a joke it is not all that funny. Sorry.
 
From Australia's Quadrant Magazine:

The history of all hitherto existing society is the history of global warming.

Biologically speaking, human beings may have emerged 200,000 years ago. Geographically speaking, they apparently spread to cover the entire Old World of Afro-Eurasia some 50,000 years ago. But socially speaking, our paleolithic progenitors didn’t amount to much. It may have taken a dozen ancient hunters working together to bring down a woolly mammoth, but you don’t have to be very social to organise a hunt. Just ask the English.

You can only hunt and gather your way so far down the road to civilisation, and that’s not very far. Meaningful human society only becomes possible when people put down roots and put up walls. The anthropology profession may not like to hear that, but Bruce Pascoe gets it. You can’t claim native title to “no fixed address”.

The earliest known permanent human settlement is Jericho, whose own walls famously fell to the blows of rams’ horns. The first village at Jericho is believed to date from around 9600 BC. It’s probably no coincidence that 9600 BC is also the conventional date given for the end of the last Ice Age. As the glaciers retreated, the truly big game got scarce, and people switched from hunting mammoth to herding sheep. Sheep’s wool turned out to be much more spinnable than mammoth wool, mothers starting knitting baby boots, and the rest is, well, history.

It is just possible that human society got its start in Jericho, smack in the middle of the land that God would later promise to Abraham and Moses. (God may be “infinite, eternal, and unchangeable in his being, wisdom, power, holiness, justice, goodness, and truth”, but no one ever said He was fair.) Soon after the death of Moses, Joshua led the ancient Israelites into Canaan, and Jericho was the first city to go. The Israelites “utterly destroyed all that was in the city, both man and woman, young and old, and ox, and sheep, and ass, with the edge of the sword”. Joshua went on to flatten Ai, Makkedah, Libnah, Lachish, Eglon, Debir and Hazor, but it’s Jericho that gets all the press.

Jericho lies 850 feet below sea level, but it is a mere forty miles from the sea. If it weren’t for the intervening hills, it would be completely swamped by water from the Mediterranean. In fact, it has been suggested that the fabled walls of Jericho were actually flood levees. But cut off as it was from Mediterranean trade, it seems more likely that ancient Jericho was a remote desert village than a bustling desert metropolis. For the first three thousand years of its settlement, Jericho didn’t even have pottery. If Joshua really did destroy “all that was in the city”, it may have been because there wasn’t much worth keeping.

As attractive as the Holy Land is to the holy, most reasonable people prefer to live by the sea. That was even more true in the ancient world than it is today. Until the coming of the railway, moving anything overland was hard work, with the sole exception of meat on the hoof. Inland life was fine if you were a shepherd watching over your flock by night. For everyone else, the ocean was where the action was.

But where was the ocean? Back in the glory days of prehistoric Jericho, sea level was 200 feet lower than it is today. That suggests that all the best neolithic city sites are probably now resting, undiscovered, under 200 feet of water. The world map looked very different ten thousand years ago. Albion didn’t become an island until 6100 BC. The Black Sea was a blue lake until 5600 BC. When archaeologists excavate neolithic settlements that are now on dry ground, they’re uncovering the remains of the uncouth mountain folk of deep antiquity. All the truly civilised cities probably went the way of Atlantis.

Sea level rose by an average of more than three feet for every century between 9000 and 4000 BC; it’s no wonder that every ancient culture has a flood story. The Bible’s flood story doesn’t say exactly where Noah lived, but the Epic of Gilgamesh gives a similar account of “the” flood, and Gilgamesh was the king of Uruk in what is now southern Iraq. He seems to have reigned around 2700 BC. Gilgamesh got the story from an old man named Utnapishtim who claimed to have actually lived through the flood. Fortunately for him (but unfortunately for us), Utnapishtim was immortal, so the fact that he was still alive to tell the story in 2700 BC doesn’t do much to fix the exact date.

Noah’s descendant Abraham washed up in Ur sometime around 2000 BC. Ur was then on the shore of what is now the Persian Gulf, some fifty miles to the south-east of Uruk. Abraham would have heard the flood story first-hand from his great-great-great-great-great-great-great grandfather Shem, who lived to be 500 years old. Shem was a young man of ninety-eight when his father Noah rounded up his family and loaded them on the ark. That places the biblical flood sometime around 2400 BC, more than two centuries after the reign of Gilgamesh. Maybe it was a different flood.

Either way, it seems a safe bet that amidst all the floods of the neolithic Middle East, “the” flood took place somewhere around the Persian Gulf. The flood story may be an almost historical memory of a catastrophic tidal wave that hit Mesopotamia in the 2000s BC. That’s the romantic view. Or it might be a much dimmer memory of the slowly rising sea levels that submerged some of the primest real estate of the neolithic world way back between the 8000s and 6000s BC.

The oldest known city site in Mesopotamia, Eridu, dates from 5400 BC and is just a few miles from Ur—that is, the ancient coastline. Ironically, despite the ensuing rise in sea level, Ur and Eridu are now stranded some 150 miles inland. Salt water initially inundated the flat, marshy plains of southern Mesopotamia, but then sediment from the Tigris-Euphrates river system built the land back up again. The net result is that any earlier cities that might once have dotted the shores of the ancient Persian Gulf would now lie 150 feet under the muds of Basra....

....MUCH MORE

Bring on the scuba-diving antiquarians/archaeologists/treasure hunters. 

It is easy to forget just how long some of these places have been around. And how in geological terms it's all just the blink of an eye.