By CHRISTOPHER SZABLA
Review of Across Oceans of Law: The Komagata Maru and Jurisdiction in the Time of Empire, by Renisa Mawani.
Durham, NC: Duke University Press, 2018
This past spring, officials on the southern US border claimed they were being “overwhelmed.” Migrants were arriving far too fast to be processed by the legal system, they pleaded—and the country simply lacked the resources to house them in better conditions in the meantime. Their arguments came in the context of the previous year’s migration “caravans” that to some Americans appeared intent on challenging immigration authorities. Debate continued to rage, meanwhile, over the actions of migrants crossing the Mediterranean Sea—in contravention of agreements to “externalize” their processing to countries such as Libya and Turkey. Did European states have a duty to intercept and rescue their rickety vessels, or to accept them automatically on their shores—regardless of the material capacity to address the volume of risky voyages and the arrivals that doing so might incentivize? Questions of speed and control, mobility and responsibility have long haunted border zones and other spaces between states. They have rarely felt so acute as they do today. Yet as Renisa Mawani’s new book Across Oceans of Law demonstrates, acrimonious and urgent disputes over the speed and legality of journeys between juridical territories—and especially those that have drawn distant states closer together by traversing the seas—are far from new. What can a longer historical perspective on these problems provide?
Mawani’s point of entry into this discussion is the Komagata Maru, a Japanese-owned vessel chartered by enterprising Punjabi-Malayan-Singaporean businessman Gurdit Singh that steamed into Vancouver harbor in May 1914 seeking to disembark a large cargo of Indian immigrants. Indians theoretically enjoyed relative freedom of movement throughout the British Empire—one of the putative fringe benefits of colonial rule. Yet Canadian officials not only prevented the Komagata Maru from docking, but barred all but a handful of the passengers on the ship from entry – largely on the basis that the ship had not sailed directly from India. Canada’s “continuous journey regulations” sought, effectively, to inhibit immigration from the subcontinent by requiring migrants from it make direct crossings from Indian territory over a distance that tended to make this virtually impossible. In case the intent of the measures was not immediately obvious, Canadian officials also curtailed or extended restraints over the few journeys that were direct.
The Komagata Maru itself had set off from Hong Kong, and had even made interim stops in Yokohama and Shanghai. Singh had organized the journey not as a means to circumvent the practical difficulties involved in conforming with the Canadian regulations, but to challenge them on the basis of the theoretically higher right of common imperial subjecthood. His efforts were to no immediate avail. The Komagata Maru languished within sight of Vancouver for months while legal battles over its passengers’ landing waged, and while “[s]upplies were running low, the vessel was infested with rats and flies, and toilets were overflowing” (p. 121). Eventually turned around, the ship set course for an India where British authorities now viewed its passengers as dangerous rebels against imperial order. Canada finally repealed its continuous journey regulations in 1947—just as Indian independence reduced the threat of free movement within the British Empire—and the incident has since provoked soul-searching in the country, whose Prime Minister, Stephen Harper, apologized for the government’s conduct in 2008.
Politically, the story of the Komagata Maru has remained a primarily Canadian affair. But in the context of global history, it has also been seen as a particularly dramatic example of the operation of anti-Asian immigration controls that arose across the United States and the settler Dominions of the British Empire (Australia, Canada, New Zealand, and South Africa) in the late nineteenth and early twentieth centuries. This was exemplified in one of the Commonwealth of Australia’s first pieces of independent legislation, the Immigration Restriction Act of 1901—which formed the foundation of its “White Australia” policy—as well as the US Chinese Exclusion Act of 1882, and the 1907 US Gentleman’s Agreement with Japan. These measures have been the subject of myriad studies, including such telling titles as The Great White Walls Are Built (Charles Archibald Price), Drawing the Global Colour Line (Marilyn Lake and Henry Reynolds), and simply Racism and Empire (Robert Huttenback).
In the British Empire, US-style overtly discriminatory legislation was usually avoided due to the need to avoid offending the sense of common imperial membership of non-white colonies, particularly India. In addition to Canada’s continuous journey regulations, several of these countries adopted variations of South Africa’s “Natal literacy formula,” requiring intending immigrants to write a passage in a European language. As Adam McKeown wrote in his installment in the genre of Asian exclusion histories, Melancholy Order, the anglophone world’s Asian exclusion regime can be seen as the beginnings of the serious border and immigration control mechanisms that would come to apply everywhere and to many more peoples, and which continue to be central to questions of law and politics today.
Across Oceans of Law seeks to move the story of the Komagata Maru slightly beyond this framework, touching on some of the less immediately obvious dynamics of transpacific migration control. Set in an era when increasingly rapid steam travel was reconfiguring notions of time and distance, the book also points toward the significance of the law that operated not just at the point of arrival, but before and during such journeys, and how increased journey speed both reinforced and challenged existing orders. Legal restrictions on overall freedom of movement, Mawani asserts, effectively extended control and imposed colonial forms of racial discrimination over oceanic space. “[T]he freedom of the sea,” she writes, “materialized as a freedom that was not available to Indian merchants or travelers, irrespective of whether they were British subjects” (emphasis added, p. 102). Yet the book also decenters the agency of the settler states that pioneered migration restrictions while highlighting challenges to the “global color line” they promoted. The history and voyage of the Komagata Maru, Mawani asserts, consequently offers a convenient “porthole” (p. 10)—one of a number of nautical metaphors the book frequently employs—to peer out at lesser-studied means of border-making and attempts to undo them.
Singh, she writes, not only planned the ship’s journey as an assault on Canadian immigration restrictions, but a means to test the viability of his own steamship line—one which would overcome the hegemonies of European shipping companies, whose commercial empires could be nearly as constraining on his fellow Punjabis’ global movements as the legal boundaries drawn by their territorial counterparts. The prospect of an Indian fleet elevated the Komagata Maru’s arrival beyond a one-time act to the potential beginning of an ongoing resistance to racial hierarchies. Yet even by itself, the ship’s challenge alternately excited Indian nationalists and inspired fear and intensified repression in their enemies. The Komagata Maru was enough of a threat that it was met with military authority not just in Canada, but upon the end of its return journey, near Calcutta—where its passengers faced an onslaught of violence upon attempting a march to the city that left forty people dead and 200 arrested without charge.
Shifting notions of temporality bore directly on the nature of the legal questions that the Komagata Maru’s arrival pried open, Mawani shows. Steam travel—and the rapid and large-scale movement that came with it—rendered more pressing the question of where and when large numbers of people could exercise their rights as British subjects. In bringing into closer and faster contact and communication different parts of the empire, technology posed a challenge to the distinctions colonial authorities had otherwise been able to maintain more easily as a function of space. In this context, legal arguments over mobility revealed the contradictions between jurisdictions in which migrants traveled, and those applicable to spaces—like the oceans—across which they did.
For example, the ship’s lawyers argued that—since the ship lay anchored within Canada’s territorial waters—the Komagata Maru’s passengers ought to be treated according to British Columbia civil rights law and extended equal protection as British subjects. For the government, however, federal control of coastlines meant the country’s immigration laws trumped. Jurisdictional conflicts did not merely play out over coastal spaces, however; questions about passengers’ ability to land that arose under Canadian immigration law were premised on details in the ship’s manifest—prepared according to the admiralty law that governed ships on the high seas—as were questions about the extent to which Hong Kong’s emigration certification for migrant labor heading to other parts of the empire bore on Canada’s restrictions on their ingress. Many of these doctrinal issues could have arisen in other contexts, before the age of steam—but the speed, scale, and opportunities afforded by mechanized transportation made their mobilization and resolution more urgent.
The ultimate decision to turn the ship away, Mawani shows, provides an example of how legal control could extend over the seas, how those bodies of water were racialized, and how this oceanic color line put the lie to idea that a Grotian “free sea” was available to all. Canadian judges used the Komagata Maru incident to draw a firmer racial boundary where it had been questionable, subordinating common British or even territorial rights to those apportioned by their understandings of culture and biology. Arguments about the presence of Canada’s indigenous peoples may have helped undermine claims that the white settler state of Canada had a supreme right to control the borders of the space it shared with them, and may have also provided an example of racial coexistence and common subjecthood that could be argued as a precedent for the passengers’ ability to coexist in Canadian society. Yet British Columbia courts instead affirmed that they could impose restrictions on the free movement of natives and South Asians alike.
This outcome was far from surprising in the context of the period, of course. Mawani demonstrates how even passengers aboard the Komagata Maru shared the court’s perspective on Canada’s indigenous peoples, rendering them invisible in accounts and speaking glowingly of participating in the country’s “settlement.” South Asians’ ability to participate in the common imperial project of populating and “developing” the Canadian landmass, too, became an argument for the right of Indians to enter the country. “Anticolonialism did not often translate into antiracism,” Mawani shows (p. 158)—with tragic consequences for the fortunes of those intending Indian migrants whose hopeful wielding of colonial terminology only reinforced the racial logic of their exclusion. Nonetheless, the fact that the ship’s lawyers believed that arguments concerning the common imperial subjecthood of Canada’s indigenous peoples, Indian immigrants, and white British settlers were plausible reflects the extent to which the Komagata Maru’s arrival highlighted and heightened unresolved legal tensions brewing in an era of increasingly radical mobility.
In making these arguments, Mawani draws from—and seeks to contribute to—two historiographical trends. The first is a reappearance of a focus on the role of time in history. It may seem redundant for historians—whose subject has often been defined by notions of linear progression and change—to think about time. Yet the concern with temporality is more meta-historical, focused on chronicling the changing role of ideas of time in history and its perception by historical actors. This focus has an old pedigree. One ur-text in the genre is E.P. Thompson’s work illustrating the rise of “clock time” on factory floors as compared to the cyclical and seasonal patterns of agricultural life. And no less than Karl Marx opens Mawani’s book with an excited quote about the revolutionary possibilities of opening the world—and, particularly, India—to steam transportation. A more recent example of work in the area is Vanessa Ogle’s Global Transformation of Time, focused on how rapid movement around the turn of the twentieth century prompted the standardization of calendars and clock times in different jurisdictions—including the fixation of discrete time zones. Historians have increasingly probed many other developments that arose as a consequence of both increased motion and shifts in the perception and organization of time it produced.
The second historiographical theme Mawani draws on is oceanic history. Beginning with a focus on connections within the Atlantic and Indian Ocean worlds, historians have since expanded to thinking more concertedly about the Pacific—using insights about mobility across these bodies of water to illuminate connections across jurisdictions, from the way the African slave trade reshaped the economies of both the Americas and Europe to the way the Monsoon Current helped spread Islam from Mombasa to the Moluccas. For Mawani, individual oceanic units of analysis remain frustratingly segregated, however, limiting ways that thinking about a world-ocean can help illuminate longer-distance ties. Oceanic historians’ concern with the connections between points on either side of the seas, she writes, also overlooks those between land and bodies of water – or the distinct historical spaces of those bodies themselves. While the seas were hardly as free as many believe Grotius claimed, Mawani avers, they were, too, not as indistinct from control over land as she sees Carl Schmitt having characterized them. The complex and subtle distinctions between solid and liquid portions of the earth’s surface—especially the mobility the latter permitted—allowed the Komagata Maru to use them to seek a “counter-Nomos of the Earth,” resisting territorial as well as oceanic order.
Historians have previously pointed to how the increased speed of transportation has played a role in upending society and spreading ideas, including those that have challenged colonial empires. Scholarship on Indian indenture has gone beyond the single-ocean framework criticized by Mawani to demonstrate how the disruptive invention of the clipper ship permitted the importation of South Asian workers into the Caribbean at economically-viable speeds, allowing them to serve as cheap replacements for emancipated slaves. Other scholars have shown how emerging air links helped anticolonial leaders collaborate by quickly crossing Asia, and how railroads revolutionized immigration control in nineteenth century France, turning the country away from a system that involved heavily policing borderland regions only to a surveillance network that operated everywhere in the country. Both works on increasingly rapid land transportation and on the speed of communication—via expanding telegraph and telephone networks—prompt questions about whether the sea was a space as uniquely constituted to pose temporal challenges to existing order.
The open sea as a space of historical inquiry has hardly gone entirely unexplored, either, appearing as a meaningful place of exchange in, for example, Ernesto Bassi’s tellingly named Aqueous Territory. Overlapping land and sea jurisdictions have also long been of interest to historians of international law. A suite of rules and cases focused on important straits has involved conflicts between territorial and oceanic jurisdictions. Overlapping forms of universal jurisdiction and oceanic law as they relate to the history of migration worldwide are also central to a recent book by Itamar Mann, Humanity at Sea. Much of the value of Oceans of Law lies, nonetheless, in bringing together its many historiographical and legal themes into a single, rich volume—and demonstrating how they cross-pollinate. Other scholars may have explored the multiplicity of jurisdictions at work over the seas, but Mawani adds, for example, the dimension of reduced transoceanic voyage time to demonstrate how jurisdictional rules came to collide over far greater distances.
Some of the book’s choices, however, raise questions beyond their novelty. Several recent books by other scholars have used a single ship’s journey to illustrate transoceanic histories that integrate land and sea across numerous bodies of water. Edyta Bojanowska’s World of Empires explores nineteenth century imperialism from the viewpoint of one Russian frigate’s circumnavigations. And Greg Grandin’s Empire of Necessity uses a slave revolt aboard a ship sailing in the Pacific as an entry point to explore the larger history of human bondage—including the Atlantic slave trade—convincingly enough for Mawani to draw on it for her own discussions of that phenomenon.
This method is not without its risks. Mawani’s arguably microhistorical focus on one ship may provide a porthole to wider worlds, but a porthole cannot always provide as wide a view as advertised. An attempt to include the Atlantic, for example, by recounting the physical ship’s previous voyages there—recounting the fact that many ports at which it then stopped had, earlier, been connected to the slave trade—feels somewhat belabored, especially given how Mawani convincingly demonstrates many other ways that the experiences and barriers faced by the ship’s passengers were more directly products of and redolent of the experiences of slavery. Other narratives—involving how admiralty law preserved territorial notions of legal personhood that applied to ships, or how land apportionment in some British colonies derived from nautical record-keeping—also seem tangential, though worthy of deeper investigation. At times, Across Oceans of Law can feel like two books side-by-side, one attempting to tell a deeper story of the Komagata Maru and the other to catalog historical continuities between oceans and the lands that surround them. Mawani’s treatment of Singh’s voyage is exhaustive, but some of the other histories she seeks to glimpse through it cry out for independent, more developed treatments.
And although hinting at the possibilities of a fully global history of oceanic interconnection, the book only rarely moves beyond the British Empire’s frame. Is it possible that the “ripples and waves” (p. 12) of reaction produced by the ship’s journey were enabled as much by the intense linguistic and discursive connections throughout the British imperial space as the collapse of time and distance afforded by the rise of steam? Do attempts to extend law to oceanic journeys between imperial ports invalidate the notion that the seas can be free between less closely-associated polities? And to what extent can assertions of common British subjecthood tell us about the right to free movement in a way that might resonate in a world of more sovereign states today?
Although the British Empire was a sprawling and significant entity, and although common imperial subjecthood bears some similarities to common rights under international law, the empire cannot be conflated with the whole world. What would following the journeys of similar ships during the same period—including those that moved outside British spaces—allow us to conclude about this book’s theses? What about following similar voyages during different periods that were not clouded by the security panic induced throughout the empire by the arrival of the First World War, which heightened much of the reaction to the ship’s arrival in India?
As Mawani notes, Singh himself broached the possibility of bringing Indian immigrants to South America rather than another British Dominion. Punjabi migrants actually did arrive in Argentina around the same time as Singh’s ship entered Canadian waters. And there, British subjecthood did permit them entry—under treaty law rather than common imperial subjecthood. Still, they faced debilitating discrimination in seeking equal economic and social rights: a story that remains largely untold, with its own contemporary resonances—and its own implications for the complex layers of law that could and still can inhibit the ventures of immigrants across racial divides.
Part of the achievement of Mawani’s book, however, is that it prompts and invites such directions for further thought and research. Discussing such complex histories of the interaction of land and sea legalities and mobility will prove increasingly relevant. These extend beyond the challenges posed by migrants to European authorities or the conditions in US border facilities—which both bear resemblance to the saga of the Komagata Maru, which both posed a challenge through its journey and became a holding cell for its passengers as it awaited its court-ordered fate. Legal contestation over territorial waters and exclusive economic zones in the seas is intensifying—both in the South China Sea, where China’s artificial islands are breeding new jurisdictional battles, and amid the melting sea ice and valued shipping shortcuts of the Arctic.
Mawani is aware of the resonances of her work in ongoing border and maritime disputes, if not explicit about how it might change our perspectives. Yet Across Oceans of Law does offer new ways of approaching contemporary migration dilemmas, at least. Exposing how a bold attempt to challenge Canada’s “great white walls” brought with it a backlash across the Dominions and an inspiration for Indian nationalists, for one, may provide an indication of where the risks and potential payoffs of similar strategies could lie for those seeking to act against unjust immigration laws in the present. The strongest galvanizing effect of such tactics may, in fact, be far from their targets, both in countries seeking to prevent the same tools being used against them and others that feel the discrimination their emigrants face betrays a larger inequality that they must fight.
At the same time, Mawani’s discussion of how the resolution of complex jurisdictional disputes functioned to keep most of the Komagata Maru’s passengers from making contact with shore demonstrates how immigrant restriction can easily toggle between legal frameworks as easily as contemporary activists often seek to layer human rights instruments to further the cause of migrants’ rights. In this, the immediate significance of Mawani’s book is perhaps most evident: while the continuous journey regulations that the Komagata Maru sought to flout were neutral on their face, they were nonetheless self-evidently discriminatory from the start. Yet it has taken over a century—and careful historical detective work on Mawani’s part—to expose the conditions within which a larger suite of law that ultimately helped keep the ship from overcoming them.
Much of the most important legal work that might be done to address migration crises worldwide may not concern statutes of obviously discriminatory intent as much as seemingly innocuous technical inconsistencies between forms of seemingly unrelated doctrine. Yet in the face of fears for security or over rapid cultural change that often drive sentiment against migrants—in ways that continue to echo the reaction to the Komagata Maru—it will hardly be easy to argue for the resolution of those inconsistencies in their favor.
Posted on 6 November 2019
CHRISTOPHER SZABLA is a Mellon-CES Fellow of the Council for European Studies and a PhD candidate at Cornell University whose research focuses on the history of the international legal and institutional treatment of migration.
