Tuesday, July 25, 2023

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

Following on yesterday's stories, another look at sea level rise and the land sea interface.

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!”.... 


Most recently from The Dial:

"Can Anyone Stop Paris From Drowning?"

And speaking of land sea interactions the Science and Operations Officer of the National Hurricane Center is Christopher Landsea, rather an occuponymous name, eh what?