The Free or Closed Sea? - Shoftim

This week’s parsha, Parshat Shoftim, has powerful sections that have historically guided the Jewish people, today motivate the work of Repair the Sea - Tikkun HaYam, and may instruct humanity’s future interaction with the open ocean.

Early in the parsha, it lays down the groundwork for establishing judges and courts of law. Additionally, it chronicles the famous admonition that has guided the Jewish people for over 3,000 years:

צֶדֶק צֶדֶק, תִּרְדֹּף

Justice! Justice You Shall Pursue.

Deuteronomy 16:20

This passage has become part of our collective DNA. It has inspired Jews throughout the ages to fight injustice, to stand up for what is right. It condenses in just 3 short words, the essence of what it is to be a Jew. Volumes have been written about this passage as the foundation for what it means for the Jewish people, and how it has shaped our collective identity.

Parshat Shoftim also contains the foundation upon which Repair the Sea - Tikkun HaYam bases much of our work:

כִּי-תָצוּר אֶל-עִיר יָמִים רַבִּים לְהִלָּחֵם עָלֶיהָ לְתָפְשָׂהּ, לֹא-תַשְׁחִית אֶת-עֵצָהּ לִנְדֹּחַ עָלָיו גַּרְזֶן--כִּי מִמֶּנּוּ תֹאכֵל, וְאֹתוֹ לֹא תִכְרֹת

When thou shalt besiege a city a long time, in making war against it to take it, thou shalt not destroy the trees thereof by wielding an axe against them; for thou mayest eat of them, but thou shalt not cut them down.

Deuteronomy 20:19

From this single Pashuk (verse) has evolved an entire category of mitzvot known as Bal Tashchit, that prohibits needless waste and destruction and teaches us how and why to prevent them. Bal Tashchit is one of the mitzvot we fulfill when participating in Reverse Tashlich.

However, there is one verse in the Parsha which often gets overlooked because its meaning is clear and its application fairly obvious.

לֹא תַסִּיג גְּבוּל רֵעֲךָ, אֲשֶׁר גָּבְלוּ רִאשֹׁנִים--בְּנַחֲלָתְךָ, אֲשֶׁר תִּנְחַל, בָּאָרֶץ, אֲשֶׁר יְהוָה אֱלֹהֶיךָ נֹתֵן לְךָ לְרִשְׁתָּהּ

Do not remove your neighbor's landmark, which they of old time have set, in thine inheritance which thou shalt inherit, in the land that the LORD thy God giveth thee to possess it.

Deuteronomy 18:14

Generally, this passage is understood on its literal level as constituting theft. It is forbidden in Judaism to encroach on your neighbor's property. This Mitzvah’s application is unquestionably based in the terrestrial realm, in the land. As Psalm 115 says: “The dry land was given to humans.” Anyone who has ever purchased a home or land is well aware of the property line which delineates the boundary of what you own and that of your neighbor.

However, the Torah does not address boundaries and ownership with regard to water or the Sea. Perhaps because, as Psalm 95 says: “The Sea is God’s” and we have no claim to it. Yet, as is usually human nature, we push the boundaries of what we should and should not do, often without considering the consequences of our actions.

Humanity has a long history of installing man-made borders throughout the ocean. Additionally, we have created Maritime Law and the Law of the Sea. Maritime Law is a body of law that relates to commerce and navigation on the high seas and other navigable waters. The Law of the Sea is a body of international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters, and the maritime relationships between nations. The United Nations Convention on the Law of the Sea has been adopted by 167 countries and the European Union, and disputes are resolved at the International Tribunal for the Laws of the Sea (ITLOS) in Hamburg.

Maritime Law and the Law of the Sea are complex legal systems and I am in no way, shape, or form an expert. However, I highly recommend for anyone who loves the Ocean to become familiar with some of the basics because of the far-reaching implications they have on so many people. Many of the issues we hear about today such as deep sea mining, overfishing, human trafficking, oil spills, shark finning, slavery at sea, and more fall under the jurisdiction of Maritime Law and the Law of the Sea.

While the Torah prohibits moving a property marker on land, property markers at sea are far more complex. For most of human history, it was never considered that people would own or control the Sea. It wasn’t until the advent of colonialism that nations began to assert dominion over the Sea, and questions over “ownership” of trade routes arose. Economics and trade began to dominate politics of the Sea, and the European countries with the strongest navies became the superpowers of the age.

The first serious discourse about ownership of the Sea came in 1609 from the Dutch scholar Hugo de Groot in his essay “The Free Sea,” in which he argued that because the sea could not be occupied, it could not be owned by any nation or economic corporation and that the Ocean should be open to all. The position of de Groot was challenged in 1635 by John Selden, a British citizen who presented in his essay “The Closed Sea” that not only was the King of England the ruler of Britain, but also “the Lord of the Seas flowing around its shores.”1 He argued, with the advent of lines of longitude and latitude accurate maritime borders could be determined. What came to be accepted is the idea that no nation can lay claim to the High Seas, but nations can claim “ownership” of their coastal waters. The question became, how far does a country’s coastal water extend?

By the middle of the 18th century, the standard delineation of coastal waters was 3 nautical miles from shore measured from the low water mark. Any fish or other marine life could only be caught by fishers and hunters from the country who claimed those territorial waters. Beyond the 3 nautical mile limit, anyone from any country could hunt or fish for whatever they wanted.

By the mid-twentieth century, resources from the sea became far more lucrative and the desire to control natural resources became much more politicized. Offshore oil drilling rigs and seabed mining entered the picture making control of the sea even more murky. In 1982, the United Nations Convention on the Law of the Sea was created and came into effect in 1994. The new convention extended territorial waters from 3 miles to 12 miles, and created Exclusive Economic Zones (EEZ) which extend 200 miles from shore. In the EEZs, freedom of shipping is ensured for peaceful travel, but the country has authority over natural resources in the EEZ. This means a country has exclusive rights to harvest any and all living and non-living resources within its EEZ.

The irony of this whole convoluted situation is that the creation of EEZs has led to tremendous economic inequity. Considering the age of colonialism, those European countries that expanded their empires from the 17th-19th centuries still retain political sovereignty over territory that is far flung from their native soil. For example, France, which has sovereignty over many Polynesian islands, has the largest EEZ in the world and controls 11,691,000 square kilometers of ocean territory. Additionally, it is impossible to police all of this territory. So, the fish and other marine life are exploited illegally in coastal waters around the world by industrial fishing vessels, causing widespread damage to local fish stock and those who rely upon them for their livelihood.

If all of this is terribly confusing, it’s because it is fact terribly confusing. The development of “ownership” of the Sea is very complicated, and I highly recommend the excellent book by Chris Armstrong entitled, “A Blue New Deal”. What’s not confusing however, is the simple fact as presented in the Tanach. “The Sea is God’s.” The Torah tells us not to move boundary markers on land. In the Ocean, fish, whales, sharks, seals and so many other wonderous living beings don’t recognize borders or boundaries. They move freely in and out of “territorial water” and EEZs. They live in the realm of the Divine. If only we humans would allow them to live in peace.

1 John Selden, Of the Dominion, or, Ownership of the Sea, trans. Marchamont Nedham (London: Marchamont Nedham, 1652), p. 3.