From the freedom of the seas to No Borders

Introduction

A Google search of “freedom of the seas” reveals that the term names not only a doctrine of international law but also one of the world’s largest cruise ships. Indeed, the vast majority of the top fifty results refer to the Royal Caribbean Freedom of the Seas rather than to the principle that the ocean (or at least parts thereof) should fall outside state sovereignty. Naming a cruise ship “Freedom of the Seas” makes good business sense: it promises a hedonistic escape from the constraints and responsibilities of everyday life, while also conjuring the comforting image of a potent ship mastering the unruly seas. Yet only the world’s affluent can afford to purchase this freedom, and even then, only for a short time. As this and similar ships sail the world’s oceans satiating the desires of thousands of revelers at a time, they do so alongside considerably less seaworthy and luxurious vessels carrying passengers for whom the ocean also promises an escape, but in their case from civil wars, terrorism, economic collapse, and other extreme hardships. Indeed, as Vicki Squire argues in a recent photo essay, we inhabit “a world of divided seas and parallel lives.” ¹

In international law the freedom of the seas applies only to international waters, while states exercise degrees of sovereignty over territorial waters, exclusive economic zones, and contiguous zones. The legal doctrine of the freedom of the seas may not therefore appear pivotal to the attempts of migrants to cross borders, since even if they manage to navigate freely through international waters, states lawfully patrol their territorial waters to prevent infringement of their immigration laws. Despite this, revisiting the arguments for the freedom of the seas developed by the Dutch jurist Hugo Grotius in the seventeenth century yields the germ of a much more radical argument for No Borders. Paradoxically, though, it is not the strengths of Grotius’s arguments that help build this case but their weaknesses.

Grotius presents three distinct arguments for the freedom of the seas: that the ocean is limitless and adapted to the use of all; that it cannot be occupied and therefore should remain in a common state rather than falling into either public or private property; and that it ought to be free to facilitate divinely ordained human sociability. In the first section of this essay I consider the first argument only briefly, finding it unpersuasive as the ocean does in fact have exhaustible resources. To evaluate the second argument, in section II I examine the bordering practices and operations currently employed in the Mediterranean Sea by the European Union, its member states, and NATO. Drawing on the border studies literature as well as the work of Gilles Deleuze and Félix Guattari, I argue that these practices constitute an occupation of the ocean that is intended to control the mobility of migrants and to police state borders. That the ocean is occupied in this manner therefore refutes a central pillar of Grotius’s defense of the freedom of the seas.

In section III, I then examine Grotius’s third argument concerning sociability, the theological basis of which makes it clearly problematic in the modern world. However, turning to Deleuze and Guattari and to Jean-Luc Nancy, I argue that we can retool Grotius’s argument by shifting from theology to ontology. In particular, recognizing our fundamental relationality and interdependence entails not only the freedom of the seas but also No Borders. This paper therefore adds to the growing arsenal of criticisms of borders based on the values of democracy and liberal equality, as well as their effects on economic growth and complicity in the exploitation of labor and the racialization of migrants. ²

I. The freedom of the seas according to Grotius

The central question of Grotius’s The Freedom of the Seas is whether “the vast, the boundless sea can be the appanage of one kingdom alone, and not the greatest?” In other words, “can any one nation [here he mentions Spain] have the right to prevent other nations which so desire, from selling to one another, from bartering with one another, actually from communicating with one another.” ³ It is worth briefly noting the broader historical context in which this question arose, especially the 1494 Treaty of Tordesillas. Philip E. Steinberg explains that the Treaty of Tordesillas and the papal bull that it amended and formalized are usually characterized as dividing the oceans between Spain and Portugal, but that in fact the “purpose of the grant [made by the bull] is for missionary activities,” and that it would not have served the Pope’s purposes to make a grant of the “uninhabitable seas.” ⁴ According to Steinberg, Spain and Portugal approached their respective portions of the sea as “spheres of influence” that helped them dominate distant lands, rather than making any claim to possession of them. ⁵ Whether we ought to consider Iberian maritime activities in terms of spheres of influence or as constituting empires, ⁶ what interests us here is how Grotius interprets the treaty; Steinberg points out that Grotius understood the treaty as claiming to grant ownership of the seas, which Grotius concludes must be considered an “act of empty ostentation” given his view that the seas cannot be owned. ⁷

The specific events that prompted Grotius to defend the freedom of the seas would occur over a century after the signature of the Treaty of Tordesillas, however, when a Dutch vessel captured a Portuguese ship in Singapore Straits in retaliation for “various Portuguese naval activities against the Dutch, who were attempting to establish trade connections with the Far East.” ⁸ Having captured the Portuguese vessel and auctioned its freight in the Netherlands, the Dutch East India Company faced a backlash from some of its shareholders who disapproved of the Company’s militarization. ⁹ Grotius was not only commissioned to write a defense of the Company’s actions against this criticism, but also to “subtly remind” the Estates General that it needed to support the Company given that it had encouraged the very privateering that was now the source of controversy. Finally, the directors of the Company recognized the opportunity to induce Henry IV of France and James I of England “to back the Dutch diplomatically over their attacks on the Iberian colonial empire.” ¹⁰ Martine van Ittersum suggests that Grotius was willing to defend Dutch commercial interests out of a sense of obligation “to serve the fatherland in any way he could,” since he recognized that the United Provinces could only win their war of independence with Spain and Portugal by maintaining their international trade and navigation. ¹¹

The result was Grotius’s Commentary on the Law of Prize and Booty, a text that remained unpublished until the nineteenth century. Grotius published a revised version of chapter twelve of the Commentary anonymously in 1609 as The Freedom of the Seas at the request of the directors of the Zeeland United Dutch East India Company for an examination of the right of navigation. ¹² In the context of Ibero-Dutch peace negotiations, the directors conceived the pamphlet as a way to “thwart” the King of Spain’s plan to destroy Dutch trade in the East Indies and to “persuade both our government and neighboring princes to staunchly defend our, as well as the nation’s, rights.” ¹³ Andrea Weindl explains that, in broad outline, the text argued for the freedom to navigate the high seas; the freedom to trade with foreign areas, which was dependent on the first freedom; and “the freedom of contract of non-European peoples, which in the case of the Dutch had to be defended against the Portuguese.” ¹⁴ Although the argument that appears first in the text is based on Grotius’s claims about divinely sanctioned sociability, in this section we will consider his other two arguments, namely that the ocean is unlimited and that it cannot be occupied.

Grotius puts the first of these arguments succinctly when he claims that “the sea is common to all, because it is so limitless that it cannot become a possession of any one, and because it is adapted to the use of all, whether we consider it from the point of view of navigation or of fisheries.” ¹⁵ When Grotius describes the ocean as “adapted to the use of all,” he has in mind the notion that its use by a particular person or nation cannot prejudice that of others. We find a similar argument in his later work The Rights of War and Peace, in which Grotius claims that “the Sea is of so vast an Extent, that it is sufficient for all the Uses that Nations can draw from thence, either as to Water, Fishing, or Navigation.” ¹⁶

Clearly, this argument no longer holds water, if ever it did. Grotius may be forgiven for not predicting the degree to which the oceans could become overfished, although even he equivocates on this issue when he notes that, “in a way it can be maintained that fish are exhaustible” and that it might therefore be permissible to restrict fishing, a practice that we see today in quotas. ¹⁷ In this regard, the ocean is not “adapted to the use of all” in the way that, for example, fire is: as Grotius points out, taking a flame from another person’s fire takes nothing away from her. ¹⁸ Moreover, Grotius may be correct that the act of sailing on the ocean itself does nothing to diminish its use by others, but as we will see in more detail below, the contemporary control of migration at sea—through patrols, interceptions, and even “push backs” out of international waters—shows that we must pay close attention to the specific purposes with which a vessel sets sail before assuming that it will not curtail the use of the high seas by others.

Although Grotius’s second argument maintains the problematic belief that the ocean is unlimited, it introduces the more intuitive idea that ownership is impossible because the sea cannot be occupied. In setting out his case Grotius claims, by appealing to such Roman authorities as Cicero, Hermogenianus, Ovid, Seneca, and Virgil, that “that which cannot be occupied, or never has been occupied, cannot be the property of any one, because all property has arisen from occupation.” ¹⁹ Similarly, in The Rights of War and Peace, Grotius appeals to Thucydides’s description of the desert as “unbounded,” as well as to Isocrates’s account of the Athenian practice of limiting and bounding the lands that they occupied, to claim that occupation requires boundaries. ²⁰ Applying this reasoning to the ocean, Grotius concludes that it cannot be occupied because “the sea, except for a very restricted space, can neither easily be built upon, nor inclosed.” ²¹ Moreover, since the sea “cannot become private property” it follows that no part of it “can be considered as the territory of any people whatsoever.” ²² The Portuguese have not “completely covered the ocean…by laying out estates on it in such a way that they have the right to exclude from that ocean whom they will,” thus they cannot restrict Dutch (or any other nation’s) fishing and sailing. ²³

It is also worth noting that occupation has a temporal dimension, in the sense that to occupy something implies duration. For example, Grotius rejects the possibility that the Portuguese might claim to occupy the sea “merely to have sailed over it before other people.” In particular, he suggests that if this were sufficient to justify ownership, we would be excluded from all of the oceans since “there is no part of the sea on which some person has not already sailed.” ²⁴ Whether or not that is true (and ignoring the practical difficulties of establishing who has sailed where, admittedly more feasible with the advent of global positioning systems), what remains is the notion that sailing over the sea does not constitute continuous occupation of a particular place. For example, Grotius points to a law of nations that “Possession, Time out of Mind, without Interruption or Appeal, should absolutely transfer a Property; for ‘tis reasonable to suppose, that Men might agree to that, which would so much contribute to the common Peace of Mankind.” ²⁵ Presumably the act of sailing over the ocean does not constitute such an uninterrupted possession or occupation of the sea because the ship that sails is in motion.

From the vantage point of the present day, however, it is not difficult to challenge Grotius’s claim that the ocean cannot be occupied, built upon, on enclosed. For example, the United Nations Convention on the Law of the Sea states that the freedom of the high seas includes “the freedom to construct artificial islands and other installations.” ²⁶ Bizarrely, precisely what Grotius thought was impossible and that prevented the high seas from falling into private or public property is a feature of the contemporary legal doctrine of the freedom of the seas. Undoubtedly, advances in engineering since the time of Grotius’s writing have facilitated building projects that were unimaginable to him. For example, some oil and gas platforms, as well as wind turbines are fixed to the ocean floor rather than floating, and the construction of artificial islands has attracted particular attention in the South China Sea. While these examples of occupation call Grotius’s claim into doubt, in the next section I would like to consider how contemporary bordering practices also constitute a form of occupation, and thus further undermine this part of Grotius’s argument for the freedom of the seas.

II. Maritime bordering and the occupation of smooth space

Although Martin Dixon and Robert McCorquodale write in their primer on international law that the freedom of the seas “has been one of the cornerstones of maritime law ever since the rejection of the doctrine of ‘closed seas’ in the seventeenth century,” ²⁷ it is worth noting that international law partitions the ocean into territorial waters, contiguous zones, exclusive economic zones, and the high seas, with the freedom of the seas only applying to the last category. In particular, the United Nations Convention on the Law of the Sea (UNCLOS) allows coastal states to adopt laws and regulations applying to their territorial waters and to contiguous zones to prevent infringement of their immigration regulations (Articles 21 and 33). ²⁸ A state bordering a strait that connects two parts of the high seas or exclusive economic zones may also adopt laws and regulations with respect to the “loading or unloading” of persons in contravention of its immigration laws (Article 42). Finally, the treaty provides that coastal states exercise “exclusive jurisdiction” over artificial islands built within their exclusive economic zone, which includes immigration laws and regulations (Article 60). International waters are explicitly “open to all States,” and here the freedom of the seas involves “freedom of navigation” and “freedom of overflight.” ²⁹

Given this international legal regime, it becomes clear that the ocean is crisscrossed by various borderlines. With detailed analyses of the practices by which states police their borders, however, the interdisciplinary field of border studies helps us see borders not only as lines on a map, but also as dynamic and mobile processes that involve multiple state and non-state actors. As we will see, bordering practices often take place away from official borderlines with the joint action of several states, and on ever-shifting coordinates as authorities respond to new data on migratory flows. Whether or not Grotius was correct to think that the ocean could not be occupied in the seventeenth century, the coordinated patrols, interception, reconnaissance, and surveillance in the Mediterranean Sea today show that the ocean can be and indeed is occupied.

States not only try to control migration at their borders, they also do so both within their territory (think of passport control at the airport) and outside of it, sometimes through cooperation with other states. Although “externalization” is often used to name the second and third of these features of contemporary migration control, Julia Schulze Wessel introduces the concept of “extra-territorialization” to name the process by which states project border control activities beyond their territorial borders, reserving externalization for the relocation and outsourcing of traditional border functions to third states. Externalization is exemplified by readmission agreements, such as between Italy and Libya, and by Mobility Partnerships between the EU and countries such as Morocco and Cape Verde. Such arrangements effectively insulate European receiving states from undocumented migrants by delegating their border control to the authorities of third states. ³⁰

Extra-territorialization and externalization do not only occur on the territory of another state, but can also take place on the high seas and in the territorial waters of cooperating states, specifically through reconnaissance and surveillance, interception designed to prevent unauthorized bordercrossings, ³¹ and rescue operations that result in migrants being returned to non-EU countries. For example, Italy has patrolled international waters since 1995, while both Frontex (the European border agency) and the authorities of individual countries have patrolled international waters in the Atlantic and Mediterranean since 2006, as well as the “territorial waters of North and West African countries” since the late 2000s. ³² While the legal basis for these operations is clear in the case of territorial waters, matters become murkier in international waters since the freedom of navigation prevents interception by another vessel except when it is flying the same flag. When a vessel is effectively stateless by flying no flag at all then interception is arguably lawful, although precisely what measures the intercepting or boarding vessel can take is unclear. ³³

Perhaps the most notable Frontex operations in the Mediterranean are Triton (launched in 2014) and Poseidon Rapid Intervention (2015) involving participation by twenty-six European Union member states in the former, and twenty-three EU and Schengen Associated countries in the latter. ³⁴ Frontex acknowledges that border control and surveillance are the main mission of their operations, but that it also has duties under international law to rescue vessels in distress. ³⁵ Another important initiative is the European Union’s Operation Sophia, established in 2015, which involves twenty-five states in the effort to break up smuggling networks and prevent loss of life at sea. ³⁶ It is also worth noting that NATO has conducted “reconnaissance, monitoring and surveillance of illegal crossings” in the Aegean Sea since the spring of 2016 (in both international waters, and in the territorial waters of Greece and Turkey) with a mission to “stem illegal trafficking and illegal migration.” ³⁷ Again, while the primary purpose of this deployment is to share information on irregular migration with the Turkish and Greek authorities as well as with Frontex, NATO ships are subject to the international legal obligation to assist vessels in distress. However, NATO has announced that all rescued ships would be returned to Turkey, a practice that is questionable in international law given that Turkey may not constitute a suitably safe space for the disembarkation of rescued migrants. ³⁸

Related to the externalization and extra-territorialization of the border, we can also understand the border as mobile, dynamic, and co-constituted by both state authorities and irregular migrants. As Anne-Laure Amilhat Szary and Frédéric Giraut put it, “the growing dissociation between border functions and border locations provides the border with a mobile dimension that breaks with its traditional fixity in time and space.” ³⁹ We can see this mobility of borders especially clearly in the case of the Mediterranean Sea. Schulze Wessel argues that once their paths have attracted the attention and control efforts of states, undocumented migrants choose alternative routes. As these new routes become increasingly subject to control, migrants seek out new entryways, thus co-creating with states a “dynamic border zone.” For example, in the early 1990s it was relatively safe to cross from Morocco to Spain, but the policing of this route led migrants to attempt to enter via Malta and Lampedusa instead. In an article published in 2016, Schulze Wessel notes that the interception and return of vessels making this journey to Libya had resulted in the emptying out of Lampedusa’s refugee camps as migrants shifted east to the Greece–Turkey border region. ⁴⁰

The “risk analysis report” prepared by Frontex for the fourth quarter of 2016 updates this account of shifting migratory routes. In the fourth quarter of 2016, 9,006 “illegal border crossings” were detected on the Eastern Mediterranean route, compared with 483,910 for the fourth quarter of 2015. ⁴¹ Frontex attributes the sharp decline in illegal border crossings on this route, and overall in 2016 compared with 2015, to Turkey’s agreement to strengthen its borders and accept irregular migrants from Greece, and to measures taken to prevent border crossings in the Western Balkans. ⁴² Meanwhile, the number of crossings on the Central Mediterranean route had surged from 21,772 in the fourth quarter of 2015 to 49,408 in the fourth quarter of 2016, “which meant that once again this route became the most prominent in terms of the number of detections.” ⁴³ Even as the borderline remains constant, physical manifestations of the border shift according to the latest migratory routes identified by border authorities. ⁴⁴

Heidrun Friese and Sandro Mezzadra offer a complementary analysis to that of the mobile border, noting that “governing no longer involves a delimited territory with spatially fixed and sedentary populations, but the control of highly mobile, vagrant subjects and populations ‘menacing’ the order and the security of states.” Given this, they find Gilles Deleuze’s notion of the “society of control” particularly apt, because it captures the “new social topology” in which we are subjected to “free-floating, nomadic forms of control.” ⁴⁵ For William Walters, Deleuze’s notion of control also highlights the importance of “proliferating databanks, samples, profiles and markets.” ⁴⁶ Indeed, we have already noted the importance of surveillance to various bordering practices, but it is also worth mentioning Frontex’s role of “risk analysis and vulnerability assessment,” ⁴⁷ as well as the European Border Surveillance system’s Fusion Services, which “include automated vessel tracking and detection capabilities, software functionalities allowing complex calculations for detecting anomalies and predicting vessel positions, as well as precise weather and oceanographic forecasts.” ⁴⁸

While I find this turn to Deleuze analytically productive, in the remainder of this section I want to focus on another part of his conceptual armory relating to space, specifically the distinction that he and Félix Guattari make between striated and smooth space, concepts that they borrow from the French composer Pierre Boulez who used them to distinguish between “two kinds of space-time in music:” one with an “assignable” measure, the other punctuated by spontaneous breaks and partitions. ⁴⁹ Doing so will allow us to bring together the preceding discussions of Grotius and contemporary border control by showing that both attempt to treat the ocean as what I call quasi-smooth space. In this section I will emphasize the ways in which we can understand Grotius as calling for the ocean to be treated as smooth space. However, when we consider his third argument for the freedom of the seas based on human sociability in the next section, and recall the commercial and political motivations for his interventions discussed in the previous section, we see that his treatment of the ocean remains on what Deleuze and Guattari call the plane of organization, whereas smooth space proper arises on the plane of consistency. Similarly, although I will show that contemporary bordering practices result in an occupation of the sea in a manner more akin to smooth space than to striated space, since this serves the purpose of better controlling the movements of migrants and protecting borders the space that is thereby constituted is also quasi-smooth.

It is no coincidence for my argument that Deleuze and Guattari understand the sea to be a “smooth space par excellence, and yet…the first to encounter the demands of increasingly strict striation.” ⁵⁰ The striation of the sea, according to Deleuze and Guattari, proceeded by way of “two astronomical and geographical gains”—bearings and maps—and was enacted by commercial cities and States. ⁵¹ This subjugated an older “complex and empirical nomadic system of navigation based on the wind and noise, the colors and sounds of the seas.” ⁵² Deleuze and Guattari point out that the distinction between smooth and striated space is “de jure” and that “the two spaces in fact exist only in mixture.” ⁵³ Despite their mixture, the distinction between smooth and striated space is still useful, Deleuze and Guattari tell us, because there is a “direction or meaning of the mix (is a smooth space captured, enveloped by striated space, or does a striated space dissolve into smooth space, allow a smooth space to develop?)” ⁵⁴ The bordering practices discussed in this section demonstrate just such an alteration of the mix of smooth and striated space, although clearly the persistence of borders means that striation remains and has not “dissolved” into smooth space, hence my use of the term quasi-smooth space.

Deleuze and Guattari use various examples to illustrate the difference between striated and smooth space, one of which is the difference between the games of chess and Go: the former uses pieces with different powers and abilities to move, while in the latter, pieces are anonymous and have situational rather than intrinsic properties. ⁵⁵ This formula lends itself readily to the way Grotius approaches movement through the ocean: if we imagine the pieces of the game as vessels and the board as the ocean, then the difference between the two forms of space can be seen in how various pieces/vessels compare with one another in terms of their ability to move around the board/ocean. With effective control of the ocean by one or more state, it is clear that not all vessels have the same ability to move, since some (in Grotius’s specific case, Dutch) are constrained by others (Portuguese). When Grotius calls for the freedom of the seas, therefore, we can understand the goal to be the treatment of the ocean as (quasi-)smooth space.

Further parallels between Grotius and Deleuze and Guattari emerge when we see that striated space realizes itself in “the space of the city, with its walls, streets, private property rights, and laws,” whereas smooth space implies a “nondirectional and nonpartitioned way of occupying such space.” ⁵⁶ For Deleuze and Guattari, nomadism has its origins in the Greek nomos, which was originally a mode of distribution “without division into shares, in a space without borders or enclosure.” Moreover, they write that, while the “sedentary road” parcels out a “closed space to people, assigning each person a share and regulating the communication between shares,” the nomadic trajectory “distributes people (or animals) in an open space, one that is indefinite and noncommunicating.” ⁵⁷ Once again, we can understand Grotius as advocating the smooth status of the ocean as a borderless space in which all can move around freely. Indeed, in both The Rights of War and Peace and The Freedom of the Seas, Grotius argues that it is impossible to enclose the ocean. He suggests that fluids can only be limited or restrained when they are “inclosed by something else, as Lakes and Ponds.” But the ocean is different, contends Grotius, in the sense that it is “not contained in the Earth,” but is “equal to it, if not greater, as the Antients believed.” ⁵⁸ This echoes the claims he makes in The Freedom of the Seas that the ocean surrounds the earth and so “rather possesses the earth than is by it possessed.” ⁵⁹

While Grotius approaches the ocean and argues for the freedom of the seas in a manner akin to Deleuze and Guattari’s concept of smooth space, we have already seen that international law striates the ocean into distinct jurisdictions and only applies the freedom of the seas to international waters. Yet we can think of the processes of border enforcement in the Mediterranean discussed in the previous section as to some extent “smoothing over” the striated space of the ocean. First, as Deleuze and Guattari note, smooth space is “constructed by local operations involving changes in direction,” due mainly to the “variability of the goal or point to be attained.” ⁶⁰ We can thus understand the interplay between border enforcement authorities and migrants trying to evade control that results in the “mobile” border in precisely these terms. Yet while the bordering practices generate this smoothness, they respond to the efforts of migrants to evade control. Thus the striation of the earth by borders that governments then try to defend, combined with the collective refusal by migrants to accept the legitimacy of these borders as instruments of exclusion, produces the ocean as quasi-smooth space.

Moreover, Deleuze and Guattari claim that, even as the West was able to establish its hegemony in part through the striation of the sea, the resulting “multiplication of relative movements, the intensification of relative speeds in striated space, ended up reconstituting a smooth space or absolute movement.” For them, this is seen in Paul Virilio’s idea of the fleet in being, which they explain means that “one no longer goes from one point to another, but rather holds space beginning from any point: instead of striating space, one occupies it with a vector of deterritorialization in perpetual motion.” ⁶¹ In an extended citation of Virilio, Deleuze and Guattari also note that “the fleet in being…is the permanent presence in the sea of an invisible fleet able to strike no matter where and no matter when.” Virilio also mentions the “strategic submarine,” which “has no need to go anywhere in particular; it is content, while controlling the sea, to remain invisible.” ⁶² As Deleuze and Guattari write in a different Plateau, “the sea, then the air and the stratosphere, become smooth spaces again, but, in the strangest of reversals, it is for the purpose of controlling striated space more completely.” ⁶³

On the one hand, the idea of the strategic submarine does not quite fit the Mediterranean bordering practices discussed above, because it does matter where the ships of border authorities go if they are to perform their role effectively. On the other hand, the various operations combined do in effect create a “permanent presence in the sea.” Moreover, risk assessments and data sharing allow agencies to target resources to particular areas and routes, meaning that the border authorities need not patrol the entire sea to maintain control of it. We can thus understand the cooperative border practices discussed in this section in terms of the occupation of smooth space, although as I have noted, borders not only remain, but their protection serves as the rationale for the practices themselves. This point is critical in distinguishing this quasi-smooth space from the liberatory smooth space that I discuss in the next section, because it is clear that while border enforcement agents occupy the sea as smooth space, migrants must negotiate the ocean as a space striated by borders, recalling once again Vicki Squire’s image of “a world of divided seas and parallel lives.” ⁶⁴

Now, it might be objected that marine borders are porous and that authorities could never completely prevent irregular migration through the interception of vessels at sea, and that it therefore makes little sense to say that they occupy the ocean. However, the same could be said of attempts to control land borders, yet it is not clear that acknowledging the inability of borders to keep out all undocumented migrants means that a state can no longer be said to occupy a given territory. Similarly, while one might argue that it is stretching the concept of occupation to apply it to the activities of border authorities in the Mediterranean, the idea of occupying a territory surely does not require that an entity literally cover the whole space, rather that it be able to more or less control it. Responses to these potential objections thus reinforce the argument that states, especially when they cooperate with one another, are in fact capable of occupying the ocean. Given this, is it possible to defend Grotius’s third argument, namely that the freedom of the seas is necessary to enable human sociability?

III. The ocean as conduit to sociability

In The Freedom of the Seas Grotius claims that God did not separate human beings into distinct species as he had other living beings, but “had willed them to be of one race and to be known by one name,” and that their ability to communicate was given so that “they all might recognize their natural social bond and kinship.” ⁶⁵ Moreover, it is an “unimpeachable axiom of the Law of Nations” that “Every nation is free to travel to every other nation, and to trade with it.” This stems from the fact that God has not allowed every place to supply the necessities of life (“some nations excel in one art and others in another”) because God wanted “mutual needs and resources” to engender “human friendships.” Grotius writes that “by the decree of Divine Justice it was brought about that one people should supply the needs of another, in order that…in this way, whatever has been produced anywhere should seem to have been destined for all.” ⁶⁶ This means that those who deny the Law of Nations that stipulates freedom of navigation and commerce “destroy the most praiseworthy bond of human fellowship, remove the opportunities for doing mutual service, in a word do violence to Nature herself.” This last point is confirmed, according to Grotius, by the fact that the ocean and winds allow all peoples to access all others. ⁶⁷ He then says that the “most famous jurists” extend this principle to the claim that no state or ruler can restrict access to its subjects by foreigners. “Hence is derived that law of hospitality which is of the highest sanctity.” ⁶⁸

It is hard to dispute the claim that we can communicate with any other human being (assuming language competency or at least the possibility of translation), but this in itself does not necessarily mean that we ought to be able to do so, especially if by communication we mean not merely dialog mediated by telephones, internet, email, and so on, but face-to-face contact between people. Similarly, while international trade does allow people from one region of the world to help meet the needs of those in another, it does not follow from this fact alone that they should be able do so. As we have seen, Grotius uses the ideas of “Divine Justice” and the will of God to justify the freedom of the seas as a conduit to this sociability, but these theological premises make an ethically and pragmatically unsatisfactory basis for a political argument in a world of religious pluralism and secularism. To retool Grotius’s argument for the freedom of the seas I propose to shift registers from the theological to the ontological, drawing in particular on the work of Deleuze and Guattari and of Jean-Luc Nancy. To enter this field, let us consider how smooth space could be configured in a liberatory manner rather than being used as a space of control, by examining another conceptual pair in Deleuze and Guattari’s work, the plane of consistency and the plane of organization.

Deleuze and Guattari define the plane of organization as “a teleological plan(e), a design, a mental principle.…It may be in the mind of a god, or in the unconscious of life, of the soul, or of language: it is always concluded from its own effects.” ⁶⁹ By contrast, they explain that “on the plane of consistency, a body is defined only by a longitude and a latitude.” Lest this sound like striation, note that this refers to the “sum total of the material elements belonging to it under given relations of movement and rest, speed and slowness (longitude)” and “the sum total of the intensive affects it is capable of at given power or degree of potential (latitude).” ⁷⁰ Moreover, whereas on the plane of organization we find “forms, substances and subjects,” the mode of individuation on the plane of consistency is that of the haecceity, a concept that Deleuze and Guattari borrow from Medieval thinker John Duns Scotus, who created it from the Latin haec, meaning “this thing.” They note that if the concept is sometimes incorrectly spelled “ecceity,” which would derive from “ecce, ‘here is,’” this is a “fruitful error because it suggests a mode of individuation that is distinct from that of a thing or a subject.” ⁷¹ For Deleuze and Guattari, then, a haecceity is not simply a “backdrop that situates subjects”—the particular hue of the sky, or temperature of the air as you read this sentence—but “the entire assemblage in its individuated aggregate.” ⁷² Individuality on the plane of consistency—haecceity—thus derives from “relations of movement and rest between molecules or particles, capacities to affect and be affected.” ⁷³

Deleuze and Guattari note that smooth spaces are “inscribed on the plane of consistency.” ⁷⁴ If the planes of consistency and organization oppose one another, this suggests that a smooth space cannot be inscribed on the plane of organization. However, Deleuze and Guattari recognize that the State uses “smooth spaces as a means of communication,” ⁷⁵ which I take to mean that smooth space can also be inscribed on the plane of organization. We can thus understand the smoothness created by contemporary border practices in the Mediterranean as being inscribed on the plane of organization since they have a definite goal, namely of securing the external borders of the Schengen Area, as well as, in a secondary way, the humanitarian goal of protecting those attempting perilous sea crossings. ⁷⁶ Moreover, it is clear that the entire project of border control rests on the notion of being able to categorize people into different legal statuses, with such legal identities then defining the ability of their bearers to move through and occupy space. In other words, the mode of individuation at play is that of subjects, rather than of haecceities. Although I have suggested that in calling for the freedom of the seas Grotius also advocates treating it as smooth space, his version of smooth space also occupies the plane of organization in the sense that he invokes a teleological plan and the design of God, and because it serves the interests of Dutch colonial expansion.

To treat the ocean as smooth space constituted on the plane of consistency rather than the plane of organization would therefore require avoiding any kind of goal (whether the Divine Justice of Grotius or the security of the European Union) and ensuring that the mode of individuation is not that of subjects with relatively fixed legal identities, but instead that of haecceities. We find an echo of this notion in the thought of Jean-Luc Nancy, who suggests that to tackle the civilizational catastrophe of Western modern capitalism—which involves the reign of the general equivalent, the “interminable equivalence of ends and means,” and a catastrophe of meaning—we must think in and about the present. ⁷⁷ This present is one in which “something or someone presents itself,” and is thus “the exact opposite of general equivalence” which plagues capitalist civilization. ⁷⁸ By exploring this suggestion and Nancy’s work more broadly, we can develop an argument against the control of mobility on ontological rather than theological grounds.

What Nancy has in mind with the idea of thinking in the present is an affirmation of the “inequivalence of all the singularities: those of persons and those of moments, of places, of the gestures of a person, of the hours of the day or night, of words spoken, of clouds that pass, of plants that grow with a subtle slowness.” ⁷⁹ In Being Singular Plural Nancy explains that “the individual is an intersection of singularities, the discrete exposition of their simultaneity, an exposition that is both discrete and transitory.” ⁸⁰ Earlier in the same text he writes that “it is never the case that I have met Pierre or Marie per se, but I have met him or her in such and such a ‘form,’ in such and such a ‘state,’ in such and such a ‘mood,’ and so on.” ⁸¹ In this regard, when he calls upon us to esteem singularities, this marks a shift away from the subject as a stable entity toward the singularity as necessarily situational and relational, and in this sense akin to Deleuze and Guattari’s haecceity. Nancy goes on to explain that the affirmation of singularities is marked by the adoration or esteem of the singular’s “singular manner of coming into presence.” ⁸² This would mean affirming equality (not equivalence), or more precisely, a “common equality, commonly incommensurable: a communism of inequivalence.” ⁸³ Indeed, elsewhere Nancy points out that the concept of dignity bears this very notion of the incommensurability of each singularity. ⁸⁴

While it is true that acquiring legal status requires potential migrants to disclose various parts of their most intimate personal history, we should not confuse this with the affirmation of singularity that Nancy urges in these passages. In the case of immigration authorities, the manner of engagement with these personal details is one of verification: is this person really at risk if she returns to her home country? Is the marriage he invokes as the basis of immigration a “genuine” relationship? Have all the forms been correctly filled out, and so forth. Moreover, even as those who meet eligibility requirements are thereafter welcomed enthusiastically, those who do not are sent back from whence they came without a further thought. Rather than reducing another person to one of “us” or “them,” Nancy suggests that we need to recognize and value not the difference (since this is inextricably linked with sameness) but the uniqueness of each singularity. Yet while Nancy’s affirmation of singularities poses a distinct alternative to immigration controls and restrictions, still it is unclear why we should dispense with them. I will argue that the veridical rather than affirmative approach to the other does not do justice to our condition as necessarily singular-plural beings.

A central tenet of Nancy’s work on ontology is that existence is always co-existence, in the sense that I am necessarily in relation and exposed to others. As he puts it in Being Singular Plural, “not only must being-with-one-another not be understood starting from the presupposition of being-one, but on the contrary, being-one…can only be understood by starting from being-with-one-another.” ⁸⁵ The question we face therefore is whether we have “done right by” our existences and their community, judged according to the principle that “there is no one that is only One,” or that “we do not exist alone.” ⁸⁶ The problem with community as conventionally understood and practiced is that it excludes an Other on the basis that it does not share the community’s common substance. Yet for Nancy community is existence “in common, but without letting itself be absorbed into a common substance.…Being in common means…no longer having, in any form, in any empirical or ideal place, such a substantial identity, and sharing this (narcissistic) ‘lack of identity.’” ⁸⁷ The sharing of a lack of common or substantial identity must be open to all, because to qualify it even by requiring a commitment to certain values is to base community on a common identity. ⁸⁸ As I will explain shortly, this alternative theorization of community points in the direction of No Borders.

In his origin story of private property in On the Rights of War and Peace, Grotius assumes that the world was held in common in an ancient community of goods that predated the establishment of private property. ⁸⁹ Humans scattered across the face of the earth, especially as a result of their punishment for trying to build the Tower of Babel. As they formed distinct communities, “the Body of the People took Possession of the whole Extent of a Country, both as to the Jurisdiction and Property, before the Lands were parcel’d out to private and particular Persons.” ⁹⁰ For Grotius, as we saw earlier, the ocean cannot be occupied, and is therefore an exceptional space that should remain in an original condition that reflects the belief that “Almighty GOD at the Creation, and again after the Deluge, gave to Mankind in general a Dominion over Things of this inferior World.” ⁹¹ This idea of Mankind in general clearly reflects the notion that we are all members of the same race and that we can and should be able to communicate with one another.

Rather than assuming the existence of an ancient community of goods that splintered and the divine imperative to build human fellowship across social and physical distances, Nancy helps us see that we are always in community, in the sense that our being is necessarily in-common. Whereas Grotius’s argument stands and falls on the basis of his speculative history and religious beliefs, Nancy’s depends on an ontological understanding of the human condition. The latter is not, of course, immune to criticism or doubts. For example, even if one accepts the premise that existence is necessarily co-existence, one might question whether this generates any particular ethical obligations, whether to members of one’s own community or to outsiders.

Yet such an interpretation assumes something that the very idea of co-existence cannot allow, namely that a person or a community can extricate itself from the broader web of interactions and interdependencies of which he or she is but one part. Thus Christopher Watkin draws from Nancy’s thought what he calls an “ethics of mutuality,” according to which I have responsibility for “the suffering of any one, of each one,” because “I am singular plural relation, an irreducibly open ecotechnical singularity that cannot sequester itself from the web of singular plurality without which it is not.” ⁹² Recognizing and doing justice to our being-in-common not only entails duties to others, it also challenges the divisions that create insiders and outsiders and that construct communities based on the sharing of a common substance. As such, although the nature of ethical obligations remains unclear, the injustice of policing the boundaries of a community becomes evident.

Finally, let me explain why I have suggested that this ontological argument leads to No Borders, rather than to open borders. Certainly, open borders—like those that exist in the Schengen Area, for example—allow freedom of mobility. However within a regime of open borders clearly the borders themselves remain, meaning that they continue to circumscribe distinct sovereign entities and to uphold a regime of citizenship. Just because a border is open does not mean that a receiving state automatically treats migrants as full citizens in terms of political and social rights. As a result, the political community can remain exclusionary even with the adoption of open borders. While open borders does not entail a significant shift in the ideas of citizenship and the state, the No Borders position “rejects notions of citizenship and statehood” and attempts “to activate new subjectivities” that “correspond with the global level at which human society is actually organized.” ⁹³ This activation of new subjectivities clearly resonates with Nancy’s call for the affirmation of singularities rather than of subjects and citizens, as well as with the notion of haecceity as the individuation of singularities. Recognition of our being-in-common therefore entails the constitution of a smooth space on the plane of consistency, which in more practical terms means an end to exclusionary political communities and their borders.

Conclusion

Undoubtedly, the No Borders position raises a series of practical questions, not least of which is how to make decisions democratically in a world without borders of any kind. ⁹⁴ Moreover, the current political climate, especially in the United States, is hardly propitious to open borders, let alone to this more radical and ephemeral position. Yet this environment—involving the confinement of men, women, and children to spaces in which they suffer extreme harm; the countless deaths of those attempting to cross borders; and the maintenance of a docile and exploitable population of denizens—is precisely what makes it necessary to find alternatives and to construct rigorous arguments in support of them. In this essay I have contributed to this effort by developing an argument for No Borders that starts from the existing doctrine of the freedom of the seas and revisits Grotius’s arguments in support of it.

As we have seen, all three of Grotius’s justifications for this doctrine are weak in the twenty-first century: we know that the ocean and its resources are not unlimited; our technological prowess means that we can in fact occupy at least parts of the ocean, as evidenced by oil rigs and wind farms; contemporary bordering practices in the maritime context amount to a form of occupation; and the fact of religious pluralism makes theological claims unsuitable for an argument that would have broader reach than members of a particular religious community. Nevertheless, the argument that perhaps looks the least acceptable offers a clue as to how to theorize the freedom of the seas differently.

In doing so, however, we reached an argument that opposes not only controls over mobility at sea, but border controls tout court and the exclusionary communities that they help enact. In a word, from an argument for the freedom of the seas we have arrived at an argument for No Borders. This may not come as a particular surprise, though, since the preceding discussion has called into doubt the idea that the ocean is a meaningfully different type of space than the land: the ocean can be built upon, exploited, bordered, surveilled, and policed just as the land can be, albeit with different technologies and under different physical constraints. Given this, the fact that the freedom of the seas remains a doctrine of international law is significant because it expresses a principle—the commons—that is opposed to both private and public property. If this common status better accords with our ontological condition than the status quo of sovereign states excluding outsiders, then we must set to work on the theoretical and practical project of building a world without borders.