Benera and Estefan
Dreams & Dramas. Law as Literature, 2017

Editors: Agneszka Killian
in colaboration with Joerg Franzbecker and Jaro Varga

With textual&visual contributions by: Carlos Amorales, Anca Benera+Arnold Estefan, Patrick Bernier, Ernst Bloch, Anna Bottomley & Hilary Lim, Colin Dayan, Kieran Dolin, Costas Douzinas, Marina Gržinić, Debora Hirsch & iaia filiberti, Ran Hirschl & Ayelet Shachar, Valerio Nitrato Izzo, Ivan Jurica Agnieszka Kilian, franck leibovici & Julien Seroussi, Bruno Latour, Danilo Madič, Kathryn Milun & Geralad Torres, Evgeny Pashukanis, Rupali Patil, Agnieszka Piksa, Alicja Rogalska, Issa G.Shiviji, Kama Sokolnicka, Agata Stajer, Mateusz Stępień, Jasper J. Verlinden, Lee Ann S. Wang

On the basis of four narrative axes – the body, community, territory and property – the book demonstrates the ways in which these concepts are in relation to and of impact to one another. In parallel, it examines the tools used by the law, such as cut and montage, indirect speech, and legal fiction.

excerpts from interview:

Agnieszka Kilian (AK): One of your projects, ‘The Equitable Principle’, explores Romania’s territorial disputes around Serpent Island, a remote rocky islet located in the northwestern Black Sea. You worked out various, overlapping dimensions: historical, geographical and economic. The island, also known as Snake Island, was the subject of contention between the Ottoman Empire and Russia. After the second Russo-Turkish war, the islet was ‘finally’ ceded to Romania as reparation for the loss of its southern Bassarabia region. Then, after World War II, things became more complicated... Snake Island has a very rich history of claims and appropriation...

Anca Benera and Arnold Estefan (A+A): We could consider the Serpent Island case “Romania’s Crimea.” Its history is indeed complex and entangled, with many ‘unknowns’ (Serpent Island was first occupied by Nazi Germany during World War II, and later annexed by the USSR) and as many (Greek, Turkish, Russian, Ukrainian, Romanian) versions as there are countries involved, and also different names. Due to its strategic location, it was also an important spot during the Cold War. In 1948, Romania (under Soviet occupation) was forced to ‘agree’ to cede Serpent Island to the Soviet Union, an ‘agreement’ whose validity Romania has always strongly contested, since neither of the two countries ever ratified it. Snake Island would accordingly be de jure Romanian territory. But the Soviet possession of Serpent Island was confirmed by another border treaty signed by the USSR and Romania in 1961. Following the collapse of the Soviet Union in 1991, Ukraine ‘inherited’ control over the island. But Russia has tried ever since to “keep an eye on it”. Now, the oil and gas reserves recently found around the island have raised the stakes in this dispute, making it even more of an economic-strategic one, with Russia still trying to maintain its dominance in the region. In 1997, the Romanian government signed a new treaty with Ukraine designed to ‘reaffirm that the existing border between them is inviolable.’ Despite this agreement, and probably since the discovery of oil and gas in the region, Romania began to be concerned about the delimitation of its territorial waters. After long years of unsuccessful diplomatic negotiations, Romania and Ukraine agreed to disagree on their maritime borders and exclusive economic zones. Because no resolution was reached, the two sides turned to the International Court of Justice (ICJ) for a final ruling.

AK: The definition of the island proved to be one of the most important questions for the final ruling and thus for the land’s delimitation. To formulate such a definition, one has to relate not only to geography and mapping, but also, and much more so, to a mutually determined understanding – from the legal as well as from the geographic perspective. What are the implications of being an island or an islet? And, inquiring in much broader terms: What does ‘land’ mean?

A+A: The debate revolved around, not territorial sovereignty over Serpent Island but its recognition as a fully-fledged island as opposed to an ‘islet’ or a ‘rock.’ In general, numerous factors can be taken into account to differentiate an island from a rock. The island (islet) in this case is only 0.17 square km, hence too small to be considered an island (it looks more like a cliff-face). But, on the other hand, it does have island-like characteristics: an igneous formation extending 41 meters above sea level; and a population of frontier guard service-men. However, it lacks fresh water (which is imported by air), and is therefore uninhabitable in the longer term.
If it were recognised as an island then the continental shelf around it would have to be considered Ukrainian waters (unless one recognises the pending Romanian claim that Serpent Island is de jure Romanian territory, as discussed above). If it were considered a rock then, in accordance with international law, the maritime boundary between Romania and Ukraine would have to be drawn without taking it into account.
Romania could not legally recognize it as an island, because to do so would give Ukraine more sovereignty over the surrounding waters. In the meantime, Ukraine had built a fictitious bank and a hotel (with no running water or infrastructure) and invented a free economic zone, and a fake ID card for the first citizen of Serpent Island. A series of other actions ensued for the purpose of proving its status as a rock or an island. But finally, no verdict was passed on the ‘island’ or ‘rock’ in question.

AK: What kind of position did ICJ take in terms of any understanding of it as land?

A+A: The court found that Serpent Island did not form part of Ukraine’s coastal configuration, explaining that ‘to count the islet as a relevant part of the coast would amount to grafting an extraneous element onto Ukraine’s coastline; the consequence would be a judicial refashioning of geography.’ The court thus concluded that Serpent Island ‘should have no effect on the delimitation in this case, other than that stemming from the role of the 12-nautical-mile arc of its territorial sea.’

In the vision of the Centre for Land Use Interpretation, land is as a cultural product. More precisely, we are interested in territoriality at the intersection of law and economics – in floating territories as extrastatecraft. It is interesting to consider what is going on with the autonomous start-up communities in French Polynesia, such as the Seasteading Institute (an earlier initiative of which was a ship moored off the Californian coast as an extraterritorial base for highly skilled workers). They are trying to develop new possibilities within existing systems by identifying legal loopholes for the creation of new economic zones, hence by redefining the very concept of territory and land.

AK: This redefinition makes some use of critical cartography, with land as cultural product. Also the visual representation of geography, mapping itself, implies the naming and creation of the world. But as J. B. Harley, one of discipline’s precursors, once noted, cartography cuts the forest from the tree. This cartographic observation can be applied to law, as Boaventura de Sousa Santos has demonstrated in legal studies, by tracing the relationships between the written law and maps.

A+A: What is relevant to us is de Sousa's reflection on legal pluralism (law in pluralistic terms) and the law as a map of misreading. Boaventura de Sousa Santos is a good example when speaking about critical cartography. He perceives maps as an inevitable distortion of reality. He cites as an example the emperor in the Borges novel who ordered the production of an exact map of his empire; yet the map proved useless because it was the exact same size as the empire itself – and a useful map cannot coincide point by point with reality. Santos names three autonomous yet also interdependent mechanisms that are key factors in the distortion of reality: scale, projection, and symbolization.
De Sousa compares law with scale and outlines a so-called ‘symbolic cartography of law’ (the ability to analyse the effect of scale on the structure and use of law), showing that national and international territory consist of several social spaces which, although autonomous, interrelate in different ways. And within each social space and across spaces, different kinds of juridical capital circulate. Scale projection and symbolization are not neutral. They express certain types of interests and disputes and suppress those of others. The autonomy of law as a specific way of representing, distorting, and imagining reality derives from the operation of these procedures.
The modern state is based on the assumption that law operates on a single scale – that of the state – and for a long time the sociology of law accepted this assumption without question. But we live in a time of porous legality or of the legal porosity of multiple networks of legal orders that constantly compel us to make transitions and trespass. Boaventura de Sousa Santos starts by analysing the forms of local legality in rural areas, in marginalised urban sectors, in churches, in sports, etc., and terms them forms of ‘infra-state laws’, mostly informal, unofficial, and more or less customary.
Most recently, the research on international economic exchanges has revealed the emergence of a new lex mercatoria, an international legal space in which different types of economic agents operate, whose behavior is regulated by new international rules and contractual relations established by dominant multinational corporations and international banks. What is striking is how transnational capital has created thus a transnational legal space, a supra-state legality, a kind of ‘world law’ which is rather informal and based on the practices of dominant agents.
Legal pluralism is the key concept for Santos: the concept of different legal spaces superimposed, interpenetrated and mixed in our minds as much as in our actions. Our legal life is constituted by the intersection of different legal orders that he terms interlegality – the phenomenological counterpart of legal pluralism. Santos argues that Western domination has profoundly marginalised knowledge and wisdom that had long been in existence in the global South. In his book Epistemologies of the South, he contends that it is imperative, today, to recover and valorise the epistemological diversity of the world.
It is time to draw new maps!

AK: Let’s talk about how you introduced a new map working with the Serpent Island case. What was your mental map and new law, taking into account that Romania in fact received the bigger part of the disputed area, while the ICJ ruling is supposed to be based on some kind of equitability...

A+A: While the judgment drew a line which was ‘equitable’ for both parties, in ICJ’s words (the ICJ tries in general always to be ‘equitable’), Romania received nearly 80 per cent of the disputed area, allowing it to exploit significant—but undetermined—deposits of gas and petrol under the seabed (an estimated 100 billion cubic meters of gas and 15 million tones of petrol). Romania sold the rights to the exploration and exploitation of these to foreign companies before the resolution of the trial. What interests us is this set of entangled and elusive types of belonging.

AK: Taking belonging as the starting point: in your work ‘The Equitable Principle’ you quote an ancient rule of Roman law: Nemo dat quod non habet meaning No one can give what he doesn’t have. Then there is the parallel to that one: Nemo plus iuris ad alium transferre potest quam ipse habet, meaning No one can transfer more rights than he has.

A+A: We understand the Nemo dat rule rather as a bona fide questioning than a reciprocity law. In the winter of 2012, we did a performative action to cut out from the frozen waters of the Black Sea the surface-unit that each Romanian citizen would have received, had the maritime been equally divided. By calculating the surface area of Serpent Island and dividing it per capita, we realised that each citizen would receive an area of approx.8 square cm. of land. In fact, if each Romanian were to go and take away 8 square cm. of soil, the island would disappear. In our performative action we point out the convoluted corruption case around the Black Sea resources and conceptualise this illusory restitution. State politics always claims to act ‘in the name of citizens’ but in most cases it doesn’t. We are trying to see what happens when we cease to retain the critical distance of the citizen and assume a position of power, even if only symbolically, as a form of “poetic justice.”

AK: In their text Feminist Perambulation [an extract from which is reprinted in this reader], Anne Bottomley and Hillary Lim point to embodied geography and continuously re-embedding the law in everyday practice...

A+A: These are all interesting questions and reflections on political geography and embodied geography in terms of gendered intersection between the law and land because ‘to take the law for a walk’ appears in Bottomley and Lim's Feminist Perambulations. Our approach is taking the law for a walk on a slightly different path. Land (as much as law) is a construct and thus imagined–– a moving concept of imminent spatiality, which produces its own knowledge. The line is the dot that went for a walk in Paul Klee's vision. This was probably Bottomley and Lim’s inspiration–– using Klee’s aesthetic vision to reflect on the law.
It is interesting that, in a legal context, the words ‘imagination’ or ‘aesthetics’ (within which art operates) are associated with manipulation, emotional or illusionary trickery, a lack of seriousness. Imagination and aesthetics are antithetical to the legal concept of truth as a simple and objective given. On the other hand, all forensic practitioners (Forensic Architecture might be a good example) are aware of the paradox that imagination is essential to the investigative and interpretative labor necessary for the production and presentation of any claim to truth.