Introductory text for the film:

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lthough they seem far removed from the sea, questions of law, regulation, and governance should be a central part of the discussion around the UN Decade for Ocean Sciences. Witnessing the slow suffocation of the ocean from pollution, heat, acidification, and deoxygenation, we must consider what the ocean’s illness means for law and, vice versa, how law has been making the ocean sick. The United Nations is currently negotiating a treaty that would apply to areas beyond national jurisdiction. Addressing the fraught state of the deep sea in such areas, and of the ocean more generally, would entail an unmaking of existing modes of law, which are deeply rooted in the binary between land and sea as well as other colonial legacies. The film is available here.

Script of Film:

Most legal thinkers see law as fundamentally terrestrial. Indeed, European law, at least, ultimately imagines itself as beginning and ending on land, which is then juxtaposed with the empty and unruly sea. The legal way of thinking enshrines the fundamental land/sea divide into governmental infrastructures and institutions. Such a legal fixation on the land/sea binary has brought about disastrous implications on other-than-human lifeworlds. The representation of land and sea as oppositional juridical spaces was particularly central in the Dutch tract Mare Liberum—“The Free Sea”—where the high seas is constructed as a space beyond national and imperial claims to sovereignty. 

The mare liberum concept was later developed by Nazi jurist Carl Schmitt in his 1942 thesis Land and Sea. There, the legal scholar claimed that the juxtaposition between land and sea is the basic law of the planet. The human, for Schmitt, is a land-being. In his words: “Among the four traditional elements . . . the earth is the element that is prescribed for humans and that most strongly defines the human” (Schmitt 2015: 6). This definition denies humanity from all those defined as non-land dwellers and, more broadly, from “cosmopolitan” people who were understood as lacking grounded roots, and from Jewish people in particular. The sea-land binary also manifests in the battle of the great fish, the Leviathan, against the great land animal, the Behemoth. In the political arena, England was perceived by Schmitt as holding the power of the Leviathan over the world’s oceans against the land-dwelling people of Germany (Schmitt 2015: 6; see also 2006 and Schmitt Reader 2016).

Witnessing the slow suffocation of the sea from pollution, heat, acidification, and deoxygenation, we need to consider what the sea’s illness means for law and, vice versa, how law has been making the sea sick. If the death of the sea as we know it could prompt a death of law as we know it, then also the death of law might bring about hope for biodiverse life at sea. Our commitment to addressing the fraught state of the ocean would entail an unmaking of existing modes of law, and a rethinking of the relationship between property, territory, sovereignty, and jurisdiction. 

At this time, negotiations over a treaty that would apply to areas beyond national jurisdiction are underway. Marine scientists refer to this process under the acronym “BBNJ.”  Scientists, legal practitioners, and policy makers debate how, but not so much if, to extract (Braverman, 2022). We worry that—yet again—an opportunity to promote more-than-humans up the ladder of human priorities might be slipping away. It is in this context that we have issued an urgent call on the participants of the BBNJ treaty process to step up to the challenge and to “unmake rather than fix” ocean law.

Ultimately, the question is whether contemporary Western law is capable of pushing beyond its mythical imaginaries and its imperial and colonial legacies—which are founded upon the land-sea binary, among other divides—so that it corresponds with, rather than ignores or attempts to fix, the dynamic and relational nature of oceanic entities. We refer to this as “amphibious legal geographies.” This is a call to recognize the shared materiality and the symbolic qualities of both land and sea, and our continued existence as an “edge species” that thrives not only by the sea but also with the sea (Gillis, 2012: 198). 

And so a new field of critical legal ocean studies is emerging. Thinking with the oceans and their lively creatures through the lens of solidarity and care provides a fresh opportunity to challenge the existing modes of governing oceans, and to bring about a more fluid and adaptable mode of governance (Johnston et al., 2020; Probyn, 2016). The binary between land and sea is complicated by tracing the connections and relationships among these spaces. Focusing on law’s overlapping and fluid existences in multiple ecologies, we envision pluralistic, relational, dynamic, and just legal geographies that move beyond the land/sea binary toward amphibious legal geographies.

The central question is whether modern Western law, and international law in particular, is capable of such an amphibious rethinking. Specifically, are alternative legalities of the sea even possible, or is Western law so steeped in colonial histories and legacies, which carry on “in its wake” (Sharpe, 2016) to this day, that change is impossible (Khalili, 2020; see also Gómez-Barris, 2017)? Is international law so infused in such colonial and capitalist frameworks that it cannot be fixed but only unmade? Relatedly, could the UN Convention on the Law of the Sea (UNCLOS) serve as the foundation for change, or would such change require a charting of an entirely new regime—a move beyond international law to a planetary regime even? In answering these questions, we might take our cues from Indigenous systems of law, which suggest that an alternative legalities of the sea already exists. 

Using the law to subvert itself from within is a powerful form of amphibiousness. The Forensic Oceanography project (2012) is an excellent example of such amphibious resistance from within as it is executed on the ground and at sea (see also the Forensic Architecture Project, 2021). By utilizing legal technologies such as mapping, survivor testimony, and counternarrative, this project transforms the legal knowledge generated through means of surveillance into evidence of responsibility for the crime of non-assistance. Black studies scholar Christina Sharpe describes this “as another kind of wake work that might counter forgetting, erasure, [and] the monumental” (2016: 59). The continued relevance of law as a powerful adjunct of coercion at sea highlights the relevance and urgency of this collection’s study of law’s amphibious geographies.

References

Braverman I (ed.) (2022) Laws of the Sea: Interdisciplinary Currents. London: Routledge.

Carl Schmitt Reader (2016) The distribution of air power and the ‘nomos’ of the earth. Available here. 

Convention on the Law of the Sea. 2002. 1833 UNTS 397, opened for signature 10 December 1982, entered into force 16 November 1994. Available here. 

Forensic Architecture Project (2021) Agency. Available here. 

Gillis, JR (2012) The Human Shore. Chicago: University of Chicago Press.

Gómez-Barris M (2017) The Extractive Zone: Social Ecologies and Decolonial Perspectives. Durham: Duke University Press.

Heller C and Pezzani L (2012) Forensic oceanography report. Brooklyn: SITU Research.

Johnston K, Lee N and Probyn E (2020) Sustaining Seas: Oceanic Space and the Politics of Care. Washington, DC: Rowman & Littlefield.

Khalili L (2020) Sinews of War and Trade: Shipping and Capitalism in the Arabian Peninsula. London: Verso.

Probyn E (2016) Eating the Ocean. Durham: Duke University Press.

Schmitt C (2006) The Nomos of the Earth in the International Law of Jus Publicum Europaeum. Trans. GL Ulmen. New York: Telos Press Publishing.

Schmitt C (2015) Land and Sea: A World-Historical Meditation. Trans. Samuel Garrett Zeitlin. Candor: Telos Press Publishing.

Sharpe C (2016) In the Wake: On Blackness and Being. Durham: Duke University Press.

United Nations (2002) Intergovernmental conference on marine biodiversity of areas beyond national jurisdiction. Available here. 

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Irus Braverman is Professor of Law and Adjunct Professor of Geography at the University at Buffalo, The State University of New York. Her books include Planted Flags: Trees, Land, and Law in Israel/Palestine (2009), Zooland: The Institution of Nature (2012), Coral Whisperers: Scientists on the Brink (2018), and Zoo Veterinarians: Governing Care on a Diseased Planet (2021). Braverman’s latest monograph, Settling Nature: The Conservation Regime in Palestine-Israel, is forthcoming with the University of Minnesota Press.

Katrina Brown is a human geographer, filmmaker, and Senior Researcher at the James Hutton Institute in Scotland. Her research focuses on the more-than-human practices of governance and innovating video and film methods to better articulate and respond to the wide range of human and nonhuman perspectives and practices that shape our use and management of environments.

Katrina Rønningen is a geographer and senior researcher at Ruralis, Institute for Rural and Regional Research in Norway, and coordinator of the Bioshare project. She studies landscape and natural resource utilization and conservation, commodification, policies, and distribution of rights and benefits/disadvantages.

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