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If only. All of us on this interconnected planet are deeply beholden to our oceans; but all too few of us, all too infrequently, pay them heed. Surabhi Ranganathan explores one too-seldom considered dimension in which we need to address that deficit: the “Law of the Sea.” As she explains, the growing international competition for reclamation, navigation, cabling, and undersea resource rights, against the backdrop of climate change, demand a radically-revised approach…

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…       

Down in the deep, the legal distinction between land and sea no longer holds– and that’s a problem: “The Law of the Sea,” from @SurabhiRanganat in @thedialmag.

* Hermann Broch

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As we go deep, we might recall that it was on this date in 1911 that RMS Titanic was launched from the boatyard in Belfast in which it was built, the largest passenger ship of its day. A state-of-the-art steamship, it set sail from Southampton on its maiden voyage on march 10th of the following year, bound for New York City.  Four days later, after calls at Cherbourg in France and Queenstown (now Cobh) in Ireland, the “unsinkable” Titanic collided with the iceberg that sent it under in the North Atlantic, 375 miles south of Newfoundland.

When the location of the wreck of Titanic was discovered in 1985, there was fear that extant Admiralty law would allow for the “looting” of what its discoverer believed should be “a monument.” In an example that the Law of the Sea can in fact be revised, the RMS Titanic Maritime Memorial Act was passed in 1986. (After the Act’s passing, the Department of State proposed an agreement with the United Kingdom, Canada and France (as well as other interested countries) to enact the policies from the 1986 Act on an international scale… the U.K. ratified it briskly, but the U.S. didn’t get around to it until 2019. France and Canada are pending. In the meantime, the wreck of Titanic has been revisited on numerous occasions by explorers, scientists, filmmakers, tourists and salvagers, who have recovered thousands of items from the debris field for conservation, public display… and sale.

(For perspective on scale)

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