A Concise Primer on Contemporary Maritime Thinking and Action/ Itamar Mann

Traditionally, the law of the sea is one of the driest subfields of international legal research. But due to the sea’s role as protagonist in the unfolding momentous climate crisis, the law of the sea has taken on new life. As Renisa Mawani writes, the ocean has become a “methodology” – a general perspective from which we can reexamine the most fundamental assumptions in other areas of the law. I think of this this quite often when I am in water. From the perspective of swimming or sailing a hundred meters from the coastline, Haifa and the Carmel Ridge behind it look different and distinct. Those accustomed to seeing them from land will experience a certain defamiliarization. Similarly, a lawyer who observes territorial legal arrangements from a maritime vantage point, will see a different picture, compared to her onshore colleagues. The climate crisis and the threats it brings with it make this unique perspective more relevant than ever.

The roots of maritime thought in the seventeenth century

To establish the ocean as a “methodology”, Mawani returns to two principal thinkers in the history of the law of the sea: seventeenth-century Dutch jurist Hugo Grotius, and twentieth-century Nazi German jurist Carl Schmitt.

Grotius is often credited for the freedom of the high seas, an idea with far-reaching consequences that still applies today. Representing The Netherlands’ interests as a maritime power seeking to open trade routes, Grotius argued that the sea by its very nature cannot be divided, nor can sovereignty or private ownership be imposed upon it. Grotius’s thinking emerges from a clear imperial context. But it is also characterized by an aesthetic dimension: for him, the physical-material qualities of the sea – its vastness and constant change – are what allow its legal distinction from terra firma. Consequently to Grotius’s theoretical contribution, the oceans were recognized as a global commons. With the exception of specific cases, the movement of maritime vessels cannot be restricted beyond a limited coastal strip over which countries may impose sovereignty. Similarly, beyond that strip, the sea cannot be conquered or purchased for money. “Mare Liberum”. 

However, formulating the legal idea of a “free sea” did not necessarily transform the sea, at least not in Grotius’s time, into a democratic or necessarily liberating space. Indeed, the phrase can even be misleading! The sea is replete with law and legal regulations. Its laws applied, for example, to merchant ships sailing the high seas. Every ship carried a flag, and brought its laws with it; a kind of “floating territory”, as lawyers thought. Or, to use Lauren Benton’s words, every ship was an “island of law”. Thus, in Grotius’s time, the sea became the most important traffic artery for the emergent project of colonialism. Although the sea was constructed as a commons, it was in effect controlled by a number of maritime powers: Great Britain, Spain, and The Netherlands, all of which exploited and transported natural resources, laborers, and slaves around the world.

Alongside the maritime powers, and amidst this saturation of maritime laws, pirates emerged in the seventeenth century, (seemingly) the sworn enemies of seafaring empires. Precisely because the sea fell outside the bounds of sovereign control, and became a main transportation route for treasures from all corners of the world, it also presented certain opportunities for those who did not align themselves with the maritime powers’ economic objectives. Pirates became known in the history of the law of the sea as the first to exploit the unique perspective created by that body of law.

The European way of life had begun spreading all over the world. With European expansion, European culture trampled over forms of indigenous political organization, which did not share their basic premises on, e.g., private property, family, and permanent settlement. Against this backdrop, pirates came from Europe and used the rules that European powers introduced – against them. Their subversive action was devoted to private accumulation, and their iconic black flag marked them as an anomaly in a world where maritime powers strove to impose their order. Pirates became known as hostis humani generis: Enemies of humanity. And yet, the dichotomy between the powers and the pirates was never airtight. 

Sunset in Bat Galim, Itamar Mann, 2021

Control of the seas in the twentieth century

Schmitt wrote three-hundred years after Grotius, during World War II. In his work, we find a second foundation for legal-aesthetic maritime thought. While The Nomos of the Earth is perhaps better known, the relevant book is a relatively short essay published earlier, in 1942, Land and Sea: A World-Historical Meditation. From a political perspective, what interested Schmitt above all was how the British Empire gained near exclusive control of the world. From a philosophical perspective, what interested him was how we live in the world; specifically, how the world was united in a “planetary spatial revolution”. According to Schmitt, by the mid-twentieth century, “Man holds the whole world in the palm of his hand”. He did not think this was a necessarily good thing. 

According to Schmitt, the sea, which connects all parts of the world, is not an environment for human habitation. Thus, the sea had restricted humans and their control over the Earth’s resources. With British control of the seas, says Schmitt, humanity’s way of life changed beyond recognition. By means of a technological and logistical revolution, humans gained, for the first time in history, dominion over the world’s space. But this also flattened the plural human existence that Schmitt preferred to see. 

In the shadow of the climate crisis, one answer to Schmitt’s question, how the British Empire came to control the world, focuses on the Industrial Revolution. Nineteenth-century England started to consume energy produced from the burning of fossil fuels. This released carbon dioxide accumulated by the Earth’s flora over thousands of years into the atmosphere, and enabled the unprecedented spread of capitalist economy in the twentieth century. Schmitt of course knew nothing of the climate crisis and took a different approach. For him, the roots of British global political reach originated earlier in history, and stemmed from the kingdom’s extra-legal control over the resources available in maritime spaces. 

Pirates are key figures for Schmitt. The early predatory capitalism of the English, he explained, was based on one basic formula: along with the Royal Navy and how the English conducted themselves as a maritime power, they also built their wealth on looting and plunder throughout the world’s oceans. For the English, the distinction between “humanity” (the powers) and “enemies of humanity” (pirates) was in fact not strictly dichotomous. Or perhaps it was indeed ultimately merely a pretense. In actual fact, the Royal House and other elements of the kingdom inhabited both sides of the divide at one and the same time: Great Britain stood on the public side of a colonial power, but at the same time also backed and lived off the work of pirates who exploited the new world system for personal gain.

The determining period, according to Schmitt, predated Grotius. These were the forty-five years from 1558 to 1603 during the reign of Queen Elizabeth. Schmitt writes that despite her air of “virginal innocence”, Queen Elizabeth did exactly what innumerable members of the aristocracy and bourgeoisie did at the time: “They all took part in the great business of loot. Hundreds and thousands of Englishmen and Englishwomen at that time became ‘corsair capitalists’”. That, too, is part of the fundamental shift from land to sea, which the British helped bring about. According to Schmitt, with its projection of maritime power, Great Britain managed to usher in a new historical period, to destroy the old, and to change the fate of humanity forever.

Solidarity in maritime thought

Compared to Grotius, who laid strong foundations for modern public international law, Schmitt’s writing is oppositional to a global rule of law. Although he objects to the unification of the world, on some level Schmitt seems to also admire their project, in which law is always bound up with power, and the more law advances political power, the more it counts as creative and meaningful. From a different perspective, it is also easy to see a continuity between Grotius and Schmitt. They represent two important parts of a tradition of European legal thought that conceptualize processes of spatial expansion coupled with accumulation of wealth and dominion.

Grotius and Schmitt are both essential parts of a history that brings us all the way up to the present reality of the climate tragedy. According to such a narrative, Grotius laid the foundations for international trade and transportation of merchandise over great distances; Schmitt identified how the United Kingdom utilized these foundations to disseminate an exploitative capitalist economy in every direction, accumulate power, and change humanity beyond recognition. With the Industrial Revolution, the worldwide capitalist infrastructure that had already been established, armed itself with fossil-based energy. Neither Grotius nor Schmitt could write about this last step, but it is entirely of a piece in the narrative of expansion connecting between the two. These maritime milestones are inseparably intertwined with globalization, which is indeed at the core of the climate crisis.

How, then, can contemporary maritime thought provide us with a conceptual and practical toolkit to face this crisis? The sea’s role as protagonist in the climate tragedy is primarily due to rising sea levels. We’re all in the same sinking boat. At the same time, in the shadow of the crisis, the sea’s role as a basin for carbon capture is increasingly being advanced. 

The task facing us today, I believe, is to take advantage of the distinct legal-aesthetic perspective the sea offers in order to open up opportunities for international solidarity, such that territorial space may conceal. We might learn something from the pirates, who applied, for the first time and most acutely, the maritime perspective as a methodology. Presumably we cannot, nor should we, completely disengage from the territorial perspective available when standing on firm land. But is it not possible, as with Schmitt’s buccaneering British Empire, to simultaneously uphold the sea-borne perspective on things?

In the past, the law of the sea created a certain framework of mutual solidarity among the world’s seafarers, all of whom were exposed to sudden storms and unforeseen weather damages in maritime space. What enabled rival powers to come together and formulate rules for mutual assistance between their ships was a common external enemy – nature. Conditions today are different. Most ships are much less vulnerable to extreme weather events in one place or another. And the threat common to them all, namely the climate crisis, does not come from the outside. It is a direct result of the actions of all the developed countries – production, but also transportation of course. It is a direct result of how powerful states have been inhabiting the seas. 

If maritime trade has indeed culminated in the final unification of global space, the question is how this unification may nevertheless serve global solidarity. How can the maritime space enable us to mitigate the disastrous effects of the climate threat, while hopefully dismantling exploitative power dynamics that may lead, now or in the near future, to the sacrifice of large parts of humanity?

The best-known example of this kind of action relates to the movement of migrants and refugees, many of whom have been uprooted due to circumstances caused by the climate crisis. When asylum seekers move across the sea to a new country, they rely on the legal assumption of unrestricted movement at sea; and they further depend on the duty of rescue at sea – part of Grotius’s old legacy. Writing about the duty of rescue, Grotius probably thought of merchants in need of assistance during a storm. Today, however, refugees and migrants trigger these duties with their bodies for other objectives: to protect themselves from a life that may not be worth living (including due to climate related degradation). 

Groups of rescuers and volunteers moving across the Mediterranean Sea to extend a helping hand, also frequently make use of laws that were enacted in another era. They carefully choose flags with a view to the unique system of authorities created at sea, and rely on rules that were created to allow unrestricted movement for merchants and colonialists. 

As legal scholar Frédéric Mégret shows in a recent article, the law of the sea now opens up a potential for new forms of solidarity. Mégret writes about solidarity with refugees, but also underscores how the maritime space enabled new forms of action for Greenpeace activists who travelled the seas to protect the marine environment; and also, how the feminist group Women on Waves took to sea in order to operate exterritorial abortion clinics off the coasts of countries where abortion is prohibited. For Mawani, the emancipatory potential of the law can only come from engaging Western legal thought with a more silenced history of non-European life with, and by means of, the sea. That too is surely a crucial part of building a new vocabulary of solidarity around the sea. 

The examples and directions of thought differ among scholars in important aspects. But they are all trying to say something simple: In the face of the current crisis, there is a need to rethink the basic, legal, economic, and political categories of our shared living. Moreover, there is a need to take advantage of opportunities for action inherent in a non-territorial legal system. Perhaps it is no coincidence that political parties experimenting with new forms of democratization have frequently called themselves pirates, and have sometimes adopted the Jolly Roger as an emancipatory symbol. If we can benefit from the shifted perspective created by the law of the sea, just like the pirates did, the sea may provide us with new opportunities for action.

Further reading:

Barak, On. Powering Empire: How Coal Made the Middle East and Sparked Global Carbonization, 2020.

Benton, Lauren, and Nathan Perl-Rosenthal, eds. A World at Sea: Maritime Practices and Global History. Philadelphia, 2020.

Braverman, Irus, and Elizabeth R. Johnson, eds. Blue Legalities: The Life and Laws of the Sea. Durham, 2020.

Grotius, Hugo. Mare Liberum, 2012.

Heller, Charles, and Lorenzo Pezzani. “Liquid Traces: Investigating the Deaths of Migrants at the EU’s Maritime Frontier.” Revue européenne des migrations internationales 30, no. 3 (2014): 71–107.

Mawani, Renisa. Across Oceans of Law: The Komagata Maru and Jurisdiction in the Time of Empire. Durham, 2018.

Mégret, Frédéric. “Activists on the High Seas: Reinventing International Law from the Mare Liberum?” International Community Law Review 23, no. 4 (January 21, 2021): 367–402. https://doi.org/10.1163/18719732-12341454.

Schmitt, Carl. Land and Sea: A World-Historical Meditation. Edited by Samuel Garrett Zeitlin and Russell A. Berman. Candor, NY, 2015.

—. The Nomos of the Earth in the International Law of Jus Publicum Europaeum. Translated by G. L. Ulmen. New York, 2006.