/ / Amy Balkin

Free Seas, Free Skies
Amy Balkin


In 1609 Dutch jurist Hugo Grotius published “The Free Sea”. In this maritime legal treatise, he argued that the high seas were open and empty stages on which sovereign nations were free to exert state power. The seas were international territory that all nations could use for trade and no nation could deny others access to. Further, he claimed the sea was more similar to air than to land, in that its limitlessness made it common property of all.

This similarity is worth considering in light of how the atmosphere is currently utilized as another seemingly limitless, open, and empty space. The contradictions between these ‘free and open’ spaces as global commons and simultaneously as stages for the exercise of state power and capital can be seen in conflicts over trans-boundary air pollution, negotiations in recent climate change conferences, and the commodification of greenhouse gases, all which provide case studies against which to consider these contradictions.

The sea and sky are both spatial regimes that can be considered as ‘offshore’, extra-state, ‘exceptional’ spaces; difficult to inhabit, and for states to exert police power upon; gray areas for the exercise of extraction, often defined by maps and legal frameworks. Both are major components of the Earth’s biological system, together comprising the same hydrologic cycle, where water cycles between liquid and gas.

I’m going to broadly discuss some relationships between the sea and sky as commons, stages for state power – economic and military, and as sites of extraction and expropriation. I’ll also discuss the sky as a place difficult to inhabit without advanced technological infrastructures, and how and where resistance takes place as a result.

IMAGE: Free Seas by Hugo Grotius
Hugo Grotius Mari libero et P. Merula De maribus (Leiden, 1633).
Rare Book Collection, Lillian Goldman Law Library.

Grotius and Free Seas

In 1609, Hugo Grotius was hired to write a defense of the seizure through force of a Portuguese ship, the Santa Catarina in 1603, by a privateer working for a subsidiary of the Dutch East India Company, in the context of a Dutch war against Portugal and Spain. A desire by shareholders to keep the wealth of the captured ship was complicated by demands from the Portuguese for its return, and questions about the legality of the appropriation under Dutch law. Working from The Hague, Grotius wrote a tract, On the Indes, which defended the seizure with an argument based in natural law.

His next work was “The Free Sea”, which furthered the argument that the seas were international territory, free for all nations to access for trade. The context for this argument was the legitimization of Dutch use of force against other nations’ ships at sea, with the intent of damaging other states’ trade monopolies.

The creation of “The Free Sea” was intertwined with the maritime beginnings of international law. The political benefits from the ideological pretext of the ‘limitless seas’ as a “neutral, solvent arena for the passage of other things” was deliberate and essential to the development of colonial trade (Miéville “E-mail”).

Arising out of European maritime expansion, and conflicts over state piracy, Grotius and Free Seas set the stage, in the framing by legal opinion of the seas as international territory, for the development of international law through this foundational document, and the political function that international law plays as companion to state violence.

Grotius later dropped his argument for ‘Free Seas’ when it suited his ideological purposes. Four years later, in 1613, when the English against its author quoted “The Free Sea”, which had been developed expressly for the Dutch state, he constructed arguments “against free seas, on the basis of contract theory” (Miéville 213). However, importantly, both his earlier and later arguments, while contradictory, support the “mercantile state as political-economic agent and…the sea as the arena in which that agency is exercised” (Miéville 214).

So rather than freedom referring to equitable access to the seas, for Grotius, ‘Free Seas’ was a really a “justification for an act of maritime plunder” (Miéville 210), over state-monopoly control of lucrative shipping trade routes, a euphemism (much like the ‘free trade’ of NAFTA), set against a period of internal European enclosure and a search beyond Europe’s borders for labor, treasure, and other commodities to be taken at sea.

Since then “the practice of states in the matter of maritime jurisdiction has remained since [Grotius’] time as much a provocation of legal ingenuities as a symptom of the changing emphases of political power” (Peace Palace Library).

As China Miéville says in his book, Between Equal Rights, A Marxist Theory of International Law, “The attempt to replace war and inequality with law is not merely utopian but is precisely self-defeating. A world structured around international law cannot but be one of imperialist violence. The chaotic and bloody world around us is the rule of law” (319).

IMAGE: Treaty of Tordesillas Papal demarcation
Alberto Cantino, Fragment of world map, 1502
©The British Library Board

Early Development of International Law

European feudal treaties, such as the 1494 Treaty of Tordesillas, divided the world between Spanish and Portuguese control, using a demarcation line drawn 370 miles west of the Cape Verde Islands – East was Portuguese, and West was Spanish. A new spatial politics emerged, combining religious sanction by Pope Julius II, the nascent sovereign state’s ascendancy, the first global lines of division based on an understanding of the globe as a sphere, with the maritime world beyond Europe appearing as a new ‘free’ space, a tabula rasa for expansion.

International Law began to coalesce in Europe the 1600s, marking a transition from Papal law to the sovereign nation-state as central agent, replacing the ‘International Code of the Middle Ages’. This transition coalesced against the development of the nation-state as a ‘political-economic’ agent, and growing colonialist expansion (Mieville Ch. 5).

As the state usurped feudal relationships, the legal form, as “the process of the clash of abstract sovereign rights” was used to negotiate the exchange process between landholding sovereign states as abstract equals, with ‘equal’ rights based around commodity exchange by property holders (Mieville Ch. 5).

Then, as now the differences in these ‘equal’ abstract subjects was revealed in the treaty-making process, when states with inferior military power were compelled to sign unequal treaties. International Law, backed by the threat of force – military or economic – revealed this inequality, as Grotius suggested in his later work, On the Law of War and Peace (1625), that “engagements of this kind may be called injunctions or commands rather than treaties” (172).

This inequity between sovereign states is also a way to consider how climate talks collapsed in Copenhagen last December, from the attempt to create a binding treaty, to the result of a ‘political accord’ that was merely ‘noted.’

IMAGE: Lockheed Advertisement

The status of the atmosphere in law

Both seas and skies are sites of ongoing contestation for legal, economic, and political control, as stages for state agency and conversely, as sites of extraction, and for control of the future social function of, equitable access to, and environmental viability of the climate-biosphere system.

Like the seas, the atmosphere has more recently undergone the processes of mapping and technological advancement, such as in aviation and rocketry, that has allowed the lower atmosphere to become a medium for transportation and occupation, as well as a store for anthropogenic gas emissions. These developments were paralleled by new opportunities created for state action in the sky, and the concurrent development of legal opinions and laws framing this new sphere of opportunity transcending international boundaries.

Under Roman property law, light and air were ‘res communes’ – things common to all, or collective property, like the sea. For Grotius, the freedom of airspace began beyond the range of a hunter’s weapon. As with the seas, ‘use’ involves access, spatial control via police power, and resource extraction, which with the atmosphere is inverted, as use is often additive – such as with anthropogenic gas emissions and particulate matter.

In creating a legal framework [for the air], jurists have also framed how [the atmosphere] is to be imagined. With the advent of aircraft and sustained flight, the metaphor of seafaring was transposed to air and space travel, with maritime law and imagery used as legal model and metaphor for framing the Earth’s atmosphere, even extending the analogy to outer space as a further ‘new ocean’, to the point of depicting Magellan’s ship ‘The Trinidad’ floating above Orion’s Horse head nebula in an advertisement for American aerospace company and missile producer Lockheed (Prelinger 142-3).

In the Netherlands the first doctoral thesis on air law… “Aerial Navigation according to the Law of Nations” [from 1910] compared air law with the legal regime of the seas [and asked] “Was air a ‘mare liberum’? Was air a ‘res nullius’? Is air free without limitations?” (Peace Palace Library).

IMAGE: Postcard. Trail, British Columbia, Canada

The Trail Smelter Arbitration

The Trail Smelter Arbitration was a key case in the development of international law and environmental law in the 20th century, which revolved around trans-boundary air pollution, which had drifted from Canada into the United States.

Trail, in British Columbia, Canada, is the home of one of the largest iron and zinc smelter complexes in the world. In the 1930’s, Consolidated Mining and Smelting Company – Cominco’s – 400-foot high smokestacks sent sulfur dioxide and other air pollutants downwind across the United States border to the Columbia River Valley, damaging crops farmed there. The conflict over compensation to the United States for cropland damage, the farmer’s losses, and the further demand to reduce pollution became a foundational case for how international law functions in cases of trans-boundary pollution between states. The Trail Smelter Arbitration became the first international ruling on trans-boundary air pollution, and established that states have a duty to prevent transboundary environmental harm, and that the ‘the polluter’ should pay for the harm they cause.

IMAGE: Slag cleanup at Black Sand Beach, Washington State, 2005

Smelting in the town of Trail has continued since the arbitration, and both polluting practices and cleanup efforts from the town’s hundred-plus years of industrial operations are ongoing. Water pollution at Black Sand Beach on the upper Columbia River in Washington, including zinc, lead, copper, arsenic, cadmium and other metals began cleanup in September 2010.

China Miéveille suggests that the Trail Arbitration’s outcome could be used to argue that International Law is a functioning system that supports the paradigm of state responsibility as protective against capitalist ‘excesses’ in the form of air pollution or other environmental harms beyond state borders, but he suggests instead that International Law should be considered as, to quote – “…Perfectly functional to capitalism (as it monetizes pollution and damages, and is subsumable as an operating cost like a plant or labor.)”

Interestingly, legal decisions such as Trail Smelter have returned to influence maritime law. The Law of the Sea Convention’s Clause on the Conservation of the Marine Environment had its ‘genesis in the Trail Smelter Arbitration, which says that no State may permit the use of its territory in such a manner as to cause injury to the territory of another’. Actually the Law of the Sea Convention is full of interesting reading, particularly on Piracy, ‘pirate broadcasting’, and Military Use of the Seas.

Other significant twentieth-century conventions and treaties on international regulation of air pollution also followed on from Trail Smelter, and include the Convention on Long-Range Transboundary Air Pollution, the Geneva Protocol, the Montreal Protocol, the Kyoto Protocol, and non-binding conference statements, including the ‘Copenhagen Accord,’ the outcome of last year’s climate conference.

IMAGE: Nigerian Delegation to COP-15, Copenhagen Airport, Denmark, 2009

International Law, Unequal Treaties, and COP-15

International law and environmental law regulating transboundary environmental harm, such as Trail Smelter, also reveal complications that “arise from having an international legal regime built on the sovereignty of nation-states.”

Last year in Copenhagen, talks to set global emissions targets for 2020 failed to reach a legally binding agreement, but concluded instead in the non-binding ‘Copenhagen Accord’, a political agreement built by Brazil, India, China, South Africa (the BASIC group) and the United States (Manoel).

There were hopes, considering the gravity of future – and present – impacts of climate change, and the environmental consequences for ‘least developed countries’, small island states, and Africa, who have polluted the least and will be unequally impacted by climate change, that a fair and equitable treaty negotiation could take place (Huq, Chandani, Anderson).

Treaty negotiations were derailed by, among other problems, closed pre-meetings by a group of powerful greenhouse-gas producing countries, who attempted to impose their commands on weaker, poorer states.

Among other demands, these included unequal emissions quotas for non-Annex I, largely non-European states, where by 2050 residents of these ‘developing’ states would not be permitted to emit more than 1.44 tons of carbon per person, but residents of Annex I – largely European and Commonwealth countries – would be allowed to emit almost twice as much – 2.67 tons per person (Dresser).

In the end, the United States brokered an agreement with a number of Annex I states, in a document that was rejected by countries including Tuvalu, Bolivia, and Venezuela. A delegate from Tuvalu said in response to the Accord “They offered us 30 pieces of silver for us to betray our people. Our future isn’t on sale. I regret to inform you, but Tuvalu can’t accept this deal” (Manoel).

So while small island states and other nations refused the deal, the attempt to impose a coercive treaty, conferring unequal ‘rights’, is congruent with the way international law has emerged historically as a framework which represented sovereign states as equals, instead of as historically unequal economic-political agents with competing interests and an unequal ability to exert force, locked in struggle, so undermining negotiations.

In contradiction to the notion of state responsibility laid out by the Trail Smelter Arbitration, it could be argued that no binding agreement at Copenhagen was politically preferable to a treaty that might politically compromise the ability of more powerful states to act in the atmosphere.

IMAGE: Shell – Going Global!

Emissions Trading

International treaties around climate change, such as the Kyoto Treaty, have resulted in further commodification of the atmosphere. Through the negotiations between polluting sovereign states that produced the Kyoto Treaty, climate change became an opportunity for synchronized expropriation of both the atmospheric commons through mechanisms including emissions trading and carbon offsetting, and further opportunities to exploit the land, as in the privatization of the carbon in living terrestrial forests.

Emissions trading had its origins in an American Acid Rain Program begun in the early 1990’s as a market-based mechanism to reduce acid rain, incentivizing polluters to cut their emissions of sulfur dioxide, and later other volatile organic chemicals. Created under the 1990 Clean Air Act, the market was technically ‘successful’ in reducing sulfur dioxide, although rather than being auctioned off, most permits were given free to polluters and over-allocated, meaning the cap on emissions was ‘too high’. In addition, most of the sulfur dioxide reduction that took place was attributed to a switch to low-sulfur coal, which became ‘more widely and cheaply available’, rather than by the installation of scrubbers, the technology shift that predicated the development of pollution allowances, and the creation of an emissions cap to begin with. However, sulfur dioxide markets were held up as a successful prototype for a market-based, pollution reduction regime, and a model for global, market-based solutions to climate change.

The World Bank has been a key broker in the development of emissions trading since 1997, when the US pushed Kyoto Protocol negotiations towards market-based mechanisms for greenhouse gas reduction and mitigation. In 2010 the emissions market was worth $120bn (Gilbertson, Reyes).

Pollution as product – Overproduction of HFC 23 in China

Some of the implications of monetizing ‘potential pollution’ played out recently in China, where five factories in the Kyoto Protocol’s Clean Development Mechanism (or CDM) were charged with having created excess HFC 23, a refrigerant byproduct of the production of an ozone-friendly refrigerant, HCFC-22.

The CDM, one of the ‘mechanisms’ defined in the Kyoto Protocol, allows industrialized countries to invest in emission reductions wherever it is cheapest globally. Initially, the Clean Development Mechanism was the Clean Development Fund, which was supposed to penalize developed countries that exceed their pollution caps by financing clean energy projects for the global South, but was altered during Kyoto negotiations to become the CDM. Now the CDM functions as an opportunity for polluting companies in Annex I countries to exceed their caps by purchasing CDM offsets from 5,500 projects in countries like China, which produce pollution rights.

The five companies in China were on the one hand, paid to produce ‘ozone friendly’ refrigerants under the 1987 Montreal Protocol, which required less ozone-depleting chemicals be produced to replace Freon. These companies have been overproducing HCFC-22 simply to destroy HFC 23 byproduct to earn carbon credits called Certified Emissions Reductions, or CERs.

“The chemical makers are paid as much as $100,000…for every ton [of HFC-23] they destroy. The companies are currently earning billions of dollars…based on [HFC-23] being 11,700 times more powerful as a climate-warming gas than carbon dioxide” (Heilprin).

IMAGE: Emissions trading (LIDAR)

Further examples of the ‘perverse financial incentives’ being developed as part of market-based responses to climate change include the United Nations program for Reducing Emissions from Deforestation and Forest Degradation, also called UN-REDD, which they define as “an effort to create a financial value for the carbon stored in forests.

LIDAR (Light detection and ranging) is a laser and mirror system that’s used to scan the landscape, often from an airplane or satellite, thousands of times a minute to create a dimensional map. It’s currently used to create 3-D maps, which can be used to measure the carbon is stored in a forest. LIDAR is used to correlate the height of a tree with its biomass, where ½ of that weight is carbon. New mapping technologies like LIDAR create metrics used to legitimate new forms of commodification, such as newly-created offsets for ‘avoided deforestation’, developed under UN-REDD.

As deforestation accounts for 20% of greenhouse gas emissions, the program is framed as a way to protect standing forests from being cut for timber or to create agricultural cropland, through creating a price structure for carbon that’s ‘left in the ground.’

However, the implications of this program include a new form of commodification of forests, and raises questions around the logic of forests as permanent carbon sinks (what happens when trees die, or forests burn), and the politically-created lack of distinction between intact forest, industrial tree plantations, and ‘forests in exhaustion’, such as palm plantations – which are currently excluded from the Clean Development Mechanism, but would be included under REDD.

IMAGE: Força Verde, Brazil

In Southern Brazil, a separate but similar pilot offset scheme privatized forests through their sale as carbon preserves to three American automakers, American Electric Power, Chevron and GM, ‘offsetting’ pollution from their automobile production. Creation of these new preserves has involved the displacement of forest dependent communities like the Guarani, who have traditionally lived off forests through sustenance hunting and fishing, through use of state violence in the form of the Green Police, or Força Verde – anti-logging and anti-poaching police who protect the carbon resource for the land’s new owners from the now-‘carbon refugees’.

Much like UN-REDD, further ‘flexible mechanism’ markets are under consideration around the world, including an International Maritime Emissions Trading Scheme (Parker et al. 65).


Seas And Skies As Toxic Dumps

While in early international law ‘free seas’ meant politically neutral arenas for the passage of ships and their cargo, this was a foil for the violent actions of sovereign states and their economic agents that took place there. While exploitation by states often operates by the extension of offshore borders, the guise of neutral access has historically supported plunder.

I’ll look at two recent events – the hijacking of the MV Faina off the Somali coast, and toxic flaring by a BP refinery sited next to a residential neighborhood in Texas City, Texas, reveal how, while not solely under the purview of international law, states and their multinational agents use passage at sea and the international space of the atmosphere as ‘neutral’ zones of transit, and simultaneously as extra-state dumps zones into which to expel the byproducts of their commerce; and the implications for the often politically weak (read poor) countries and communities where this takes place.

MV Faina: Toxic waste dumping on the Somali coast

The MV Faina is a Ukrainian operated, Belize-flagged cargo ship. It was boarded off the coast of Somalia in 2008 by the Central Regional Coast Guard, a Somali ‘pirate’ organization, and held for ransom. The initial ransom demand was reported to be between $5m and $35m dollars, to be used for the cleanup of toxic waste dumped at sea and on the Somali shoreline. Toxic waste, including nuclear waste, has been dumped illegally off the Somali coast for roughly twenty years, according to the United Nations Environment Program, killing fish, impacting the ability of fishermen to work, and damaging the underwater ecosystem. Local concerns have been ignored by regional maritime authorities and Januna Ali Jama, a spokesman for the pirates said at the time of the ship boarding “The Somali coastline has been destroyed, and we believe this [ransom] money is nothing compared to the devastation we have seen on these seas” (Abdullahi).

IMAGE: Toxic waste drums, Puntland, Somalia

The 2004 Tsunami washed up waste barrels, the first physical evidence of this practice. Dumped waste included uranium radioactive waste, lead, heavy metals including cadmium and mercury, and hospital waste. Local illnesses surfacing after the waste came ashore included mouth and abdominal bleeding, and skin infections. Al Jazeera reported in 2008 that dumping costs for disposing of the waste at sea off Somalia might cost as little as $2.50 per ton, versus $1000 per ton for waste disposal in Europe. Not without conflict, a ransom of $3.2 million dollars was paid four months after the ship was boarded, which unbeknownst to the pirates, carried a cargo of tanks, rocket-propelled grenades, and anti-aircraft guns. While the UNEP claimed that the pirates “aren’t environmental stewards”, I wasn’t able to find out whether or not any of the ransom money went towards toxic waste cleanup of coastal waters, or whether it was considered reparations for the damage to the fishing economy.

In the case of the MV Faina, globalized polluters contravened the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, using the high seas as a medium for the delivery of toxic waste, backed by a history of formal and informal political support from at least some Somali government officials for toxic dumping, combined with an unwillingness for regional maritime regulatory organizations to act to protect the local maritime ecosystem, the local fishermen, or residents onshore –placing a priority on cargo movement rather than on its impacts.

Maritime mobility for wealthy polluters created the conditions for violent degradation of the local environment and the health of Somalis. MV Faina brought global attention to the social and environmental impacts of toxic waste dumping along the Somali coastline, and demands for environmental justice and reparations from the destruction of local fisheries.

IMAGE: Texas City, TX – Photo

Texas City, Texas: Toxic chemical flaring

This year in the gulf town of Texas City, TX, a British Petroleum refinery operating in the United States illegally released 530,000 lbs. of airborne toxic chemicals, including “17,000 pounds of benzene; 37,000 pounds of nitrogen oxides, which can cause respiratory problems; and 186,000 pounds of carbon monoxide” (McKinley Jr.). All this was released into nearby working-class residential neighborhoods that border the refinery over a period of 40 days, without any notification to local residents until after the flaring ended.

Rather than slow production caused by a broken hydrogen compressor, BP flared the chemicals without alerting either the community or regulatory officials until the compressor was repaired. Residents living near the refinery experienced a range of unexplained physical symptoms, including uncontrollable coughing requiring hospitalization. BP claimed that their five air monitors surrounding the plant showed no increase in pollution in April and May, the months of the chemical release.

Since the release, residents have made use of the U.S. legal system in response, initiating a $10 billion dollar class-action lawsuit. (McKinley). On a further note, “in 2009, according to the Defense Energy Support Center, the military awarded $22.5 billion dollars in energy contracts…[of which the] largest contractor…was BP, which received…almost 12% of all petroleum contract dollars awarded by the Pentagon for the year (Turse).

The environmental implications of tacit or laissez faire state support of polluting activities taking place in the conveniently ‘open, and empty spaces’ of international waters or the atmosphere, amounts to environmental injustice for the communities the pollution drifts to – whether residents of Texas City or Somali fishermen – damaging the environment and harming the local residents, by loss of health, work, a place to live, the pleasures of an undamaged landscape, and the ability to make decisions about what happens there.

IMAGE: Protest, Kettleman City, California, 2010

Political Resistance: At Sea, on Land, and in the Sky

As the impacts of degradation to the atmosphere for the benefit of states, and their activities create impacts on shared spaces of the sea, land and sky, a range of diverse tactics has emerged to intervene in, end, and hold responsible for these harms by people directly effected by these activities, or opposed to them more broadly.

While the history from which international law emerged can be seen as providing a case for discarding the rule of law, the nation-state, and treaties as spaces of possibility for social or environmental justice, current resistance struggles are using a range of tactics to demand justice, including using what opportunities are provided by the legal form.

Recent resistance includes strategies from direct action and mass protest to ‘reparation piracy,’ to lawsuits by indigenous communities. This resistance may take place at the site of struggle, or where, like the atmosphere, it is difficult to inhabit or stop, in proxy zones on land or at sea, including the courtroom, the waste dump, the drilling platform, and the forest.

Protests against atmospheric pollution grew out of a response to industrial air pollution disasters, such as the 1948 Donora Smog, a combination of inversion fog and fluorine gas air pollution from a zinc smelter in Pennsylvania, which much like the great industrial fogs of 19th century London, sickened and killed residents from the working-class community of Donora. The response to the Donora Smog was the beginning of the first clean-air movement in the United States, ultimately leading to the enactment of the US Clean Air Act of 1970. However, at least in the US, the struggle continues for communities against air pollution, waste incineration such as at ‘waste-to-energy’ facilities, weak air quality protection, and little response to climate change, based on local, national, and international politics.

Atmospheric pollution, in the form of Asian Brown Clouds or Ship Tracks, are frequently the product of many ‘partially responsible parties’, where emissions from multiple states or their multinational agents are transported and distributed through the atmosphere over and into international waters with global impacts. So both Canadian residents and the Arctic food chain continue to be impacted by transboundary air pollution from industrial production in the Great Lakes region of the United States, while 25% of Los Angeles’ particulate smog can be traced to China.

IMAGE: Ogoni Gas Flaring protest, Nigeria

Activism and political resistance to atmospheric pollution and expropriation includes Anti-Clean Development Mechanism project struggles, such as in Thailand, where a community defeated a plan to build a rice husk burning biomass plant, or in the Niger Delta, with almost 50 years of resistance to gas flaring, set against the collaboration of the Nigerian military and multinational petroleum companies to repress it.

IMAGE: The Esperanza

Receding arctic sea ice extent from climate-related temperature rise, and the resulting struggle for control of new shipping routes, seabed mining rights, and petrochemical extraction point again to the continuity of the hydrologic commons, and the knock-on effects state action and inaction regarding the atmosphere have on the seas. Here resistance at sea includes activity organized by nongovernmental organizations, such as where Greenpeace’s ship the Esperanza faced off against Danish warships on August 23rd, in a protest against the Royal Bank of Scotland and Cairn Energy’s exploratory arctic oil drilling off the coast of Greenland (Severin, Scott).


Resistance to the destruction of the atmospheric commons includes nascent but growing climate justice movements that emerged from the anti-globalization movements of the 1990’s, with sizeable protests in London in 2006, at the Bali climate conference in 2007, and in Copenhagen in 2009, along with a developing movement to ban carbon trading in Bolivia and Venezuela.

Local environmental justice struggles and global climate justice movement demands to reduce greenhouse gases converged recently in Richmond, CA, a working-class, largely black and Laotian community located next to a Chevron Refinery, against the local health impacts of flaring, and the refinery as a greenhouse gas emitter.

IMAGE: Direct Action at Manchester Airport

Developing this talk, I wondered if there were examples of environmental resistance taking place in the atmosphere. I couldn’t find any, but was trying to imagine what forms it might take, for example – smoke signals, aerial political advertising banners, or airplane hijacking? And what would the implications be? Plane Stupid’s anti-short-haul direct action protests over the last four years are some of the few examples of protest occurring at a ‘portal’ for atmospheric activities, the airport.

IMAGE: Antarctica – Blank protest banner

Another model for resistance might be labor protests in the atmosphere – but do they exist, and is it possible? Again, I wasn’t able to find a good example. However, this image is of a protest in the Antarctic, an ‘exceptional international space’ on land, devoted to scientific research and with military activity banned. I think the image might represent one set of complications for airborne or other atmospheric workers, who may be professionalized technical workers contracting in specialized environments for states or corporations.

This is what one of the protesters had to say (anonymously) about the photo:

“After a Not in Our Name gathering in October (at McMurdo Station, the American Research base) we were warned that anyone who organizes a protest demonstration will be fired, and anyone who attempts to organize a union will be fired. The McMurdo Station Manager eventually told us that if we do anything of the sort, we must not give any impression that the National Science Foundation supported us in any way: No buildings, vehicles, or infrastructure could be in any of our photos. When asked about ECW, the extreme weather gear we are issued, he told us that we are not permitted to wear it in the photos we take. So we decided to have this Naked Demonstration, entirely content free but conveying our strong feelings about an undisclosed issue. It was pretty chilly that day, and not just because of the weather.”

IMAGE: Sea and Sky, Greenland Sea, 2007


In conclusion, the protean elusiveness of the seas and skies, their openness and emptiness, non-fixed and porous, provides exciting spaces of possibility for expansionist imaginaries/capital, at the same time provoking alternative visions and demands for negotiating use of these shared places.

International law, much like international waters, or the Earth’s Atmosphere, can be viewed as a zone of convenience based on the will of states, whether benefit is found in political or economic force, or when ‘paradigms of responsibility’ (Miéville. “Re: Questions about Between Equal Rights.” E-mail to Amy Balkin. July 14, 2010) are more functional to capitalism – as in Trail Smelter or emissions trading; when harm is monetized and subsumed as a cost of production.

So what would free seas and free skies look like? Both seas and skies are historical and ongoing sites of struggle, for equity and justice in the present moment, and in and for the future.

* * *

References and Works Cited

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