B. Platform

Maritime routes were key to the constitution of ancient political life.^{Footnote 41} Such was the case, for example, around the Mediterranean. According to Fernand Braudel’s interpretation, the Phoenicians did not only rely on the sea as an avenue for commerce. Rather than an empire drawn within territorial borders, they reigned over a chain of coastal city-states. From Tyre to Carthage, their dominion was united by water.Footnote ⁴² The isle of Rhodes, which the Phoenicians had briefly inhabited, is often credited with the first written code of Admiralty Law. The document, which has not survived, dates to between 600 to 800 A.D; Roman sources occasionally refer to Nomos Rhodion Nautikus.Footnote ⁴³ A recent study finds that Islamic jurists articulated central doctrines of international law such as the freedom of navigation and the duty of rescue, long before their articulation in European sources.Footnote ⁴⁴ Be that as it may, early sources already convey maritime commerce and the laws of the sea associated with it as emerging in a networked form, in multiple interlinked localities.

By the time Dutch jurist Hugo Grotius wrote the landmark treatise, Mare Liberum, in 1609, a distinctly modern platform made of persons, boats, ports, and the law, was established. The development of maritime routes in particular was crucial, as reflected by the competition between seafaring empires over rights of movement, which motivated Grotius, as well as his rival John Selden.Footnote ⁴⁵ Within this legal-material platform, international law formed the basis for maritime commerce and transportation.^{Footnote 46} Indeed, legal rules and shipping patterns are mutually constitutive, and together amount to a specific element of infrastructure still evident in maritime commerce today. Grotius described the high seas as a smooth space, open to exploration and trade and subject to no state’s jurisdiction or dominium.Footnote ⁴⁷ “The sea . . . is the archetype of a smooth space,” echoes Henry Jones in a more recent essay.Footnote ⁴⁸ This emphasis on smoothness is part of why the term platform seems apt, as it suggests seamless movement, open horizons. Our choice offers a nod to the way the term has emerged in business and digital media studies, where platforms are often seen as a particular type of infrastructural technology through which users are able to connect and facilitate networked forms of exchange.^{Footnote 49} Within this body of research, platforms on the one hand enable users with an operational freedom of navigation, and on the other serve to redistribute legal responsibilities through complex business strategies that tend to upend traditional consumer and labor protections.^{Footnote 50} In both contexts—the maritime space of commerce and the digital space of business—platforms create the context and the backdrop against which transactions and locomotion become possible.

During the last four centuries, mercantile interests as well as clashes at sea have played a crucial role in the development of the platform of commerce and transportation. These clashes have involved disputes over anything from booty, colonial goods, and enslaved persons to fisheries, oil, and containers.Footnote ⁵¹ Up until the mid-twentieth century, prominent international lawyers routinely described ships as “floating territory.”^{Footnote 52} This was shorthand for the jurisdiction of the flag state.^{Footnote 53} From our own perspective, it is also evidence that the ship was but one aspect of a larger international legal platform, which, by imagining the ship as “floating territory”, in some ways erased the ship’s particular aspects. As Surabhi Ranganathan puts it, “The ocean supplied the arteries of global exchange: Ninety percent of world trade relies on shipping; ninety percent of communications on undersea cables.”^{Footnote 54}

The tension between a ship’s territoriality and mobility explains why commercial vessels maintain a unique significance in international legal theory and practice.Footnote ⁵⁵ In the Lotus case, reflecting the customary rule, the Court held that

Textbooks on international law are littered with references to cases concerning ships, oftentimes named after the vessels themselves, such as the S.S. Lotus, the S.S. Wimbledon or, for a more recent example, Rainbow Warrior.^{Footnote 57} A principal aspect of the development of global maritime commerce is flag state jurisdiction.

Unique rights that international law grants maritime vessels, rooted in their mobility, include freedom of navigation and the right of innocent passage through any coastal state’s territorial waters,Footnote ⁵⁸ as well as the catalogue of duties of both flag and coastal states to assist private vessels in situations of, for example, distress, health emergencies or incidents involving stowaways.^{Footnote 59} Further, the flag does not have to follow the nationality of the ship’s owner, or that of its captain; nor does it have to be the national flag of its place of corporate registration. Although international law requires all vessels to have a nationality,Footnote ⁶⁰ the development of “open ship registries” allows for a considerable measure of flexibility. This aspect of the law of the sea invites an active choice of the most legally comfortable jurisdiction for a ship’s flag. Choosing accordingly is choosing a “flag of convenience.”Footnote ⁶¹

Flag state jurisdiction is not exclusive. Ships docking at foreign ports may therefore remain subject to discretionary health and safety inspections as mandated by national legislation.^{Footnote 62} In practice, international law has developed to exclude such jurisdiction from matters concerning onboard cargo and discipline. Flags of convenience thus provide ships with a degree of protection against port state interference in onboard matters. This separation between port and flag was expressed clearly by the US Supreme Court as early as 1887 in Wildenhus.^{Footnote 63} The Supreme Court specifies the commercial rationale:

Preventing an “interference” of the state with business on board: The paragraph offers an analogy to a relationship between the state and the market—one of laissez-faire. While the coastal state threatens to impose regulation, the ship is imagined as located in a realm where relations are best governed voluntarily. The text reveals the inclinations of its time, the U.S.’s gilded age. But it also encapsulates the way in which flags of convenience constitute a basic element of a platform of global capitalism, including its elimination of accountability.

Rising as a maritime power, the United States shaped this platform of global commerce and transportation, further developing its pervasive erosion of accountability. Several specific incidents, and the legal instruments they gave rise to, are worth mentioning. The Limitation of Liability Act of 1851 allowed ship-owners to limit their liability to the value of the vessel at the end of the voyage, in addition to its “pending freight.”^{Footnote 65} Such limitation may apply both to personal injury and death as well as cargo losses, but proved specifically crucial for the former. In the nineteenth century the limited liability firm already existed. But as scholars have noted, limitation of liability began from ships and only later emerged in firms.Footnote ⁶⁶ The 1891 Valparaiso incident, in which U.S. Navy cruisers of the USS Baltimore were stabbed outside a Chilean port bar, helped establish legal protections for maritime cargo.^{Footnote 67} The RMS Titanic case provided that ship owners’ limitation of liability followed the law of the forum, irrespective of the law that the created the liability.^{Footnote 68} The cruise ship thus became central to conflict-of-laws understanding of the doctrine.Footnote ⁶⁹ The International Convention Relating to the Limitation of Liability of Owners of Seagoing Ships (1957), and the International Convention on Limitation of Maritime Claims (1976), later articulated limitations of liability on the level of international law. Limitations of liability and the lack of accountability herein thus became fundamental elements of the platform.

To be sure, international law does provide some exceptions to this imagination of the sea as a de-regulated space for maritime vessels. In 1920, The United States Congress enacted The Death on the High Seas Act (DOHSA), which was intended to provide “recovery of damages against a shipowner by a spouse, child or dependent family member of a seaman killed in international waters.”Footnote ⁷⁰ In addition to the monetary claims, amendments to maritime law allowed relatives of the deceased to claim compensation for trauma and mental anguish faced because of the seafarer’s death. The Safety of Life at Sea (SOLAS) convention, despite its late adoption in 1974, was also initially developed in direct response to the sinking of the Titanic in 1912.Footnote ⁷¹ The United States and the United Kingdom demanded stricter regulation of safety standards for commercial vessels. For the Convention’s drafters, it signaled an aspiration to extend protections for life at sea, and a step against immunities for offshore wrongs.^{Footnote 72}

In 2006 a second step was taken via the adoption of the Maritime Labor Convention. Touted as providing a “bill of rights” for seafarers,Footnote ⁷³ the convention sets minimum standards concerning conditions of employment, wages, accommodation, health and social benefits, which equally apply to cruise ship service crew. The convention also empowers port states to carry out inspections of onboard labor standards, even on ships flying the flags of non-signatory states. The principal responsibility, however, remains with the flag state, which may perform mandatory inspections and subsequently issue a certificate to any ship weighing 500 gross tonnage or above, confirming its compliance with the requirements. Port states must accept these documents as evidence of compliance under the convention, except where inspectors have clear grounds for believing that a ship is non-compliant. This system of deference may explain the willingness of key flag of convenience states to ratify the convention.

The cruise industry emerges in this legal environment with its own legal and jurisdictional quirks. The vast majority of cruise ships make use of flags of convenience, letting cruise operators decide between different flags, each associated with different taxation schemes, maritime regulations, and safety inspection practices.^{Footnote 74} Popular open registry countries among large cruise companies, like Panama or the Bahamas, impose no income tax on cruise ship owners, and are equally known for their looser environmental protection and safety inspection standards.Footnote ⁷⁵ Crucially, flags of convenience also enable cruise operators to tether employment conditions for the myriad of different nationalities composing crews to the flag state’s jurisdiction. Open registry countries characteristically offer laxer labor regulation than what applies in the countries cruise ships normally disembark from.Footnote ⁷⁶ The list of Bahamas-registered cruise ships thus includes some of the largest passenger ships in the world.^{Footnote 77} In sum, the use of flags of convenience has been an essential part of the business model for many cruise companies; much like tax havens, they cut costs and limit accountability.^{Footnote 78}

Cruise line routes are moreover regularly renegotiated according to the demand of would-be customers but also adjusted to optimize profit by accommodating legally lax routes. Coastal states eager to attract tourists to spend time and money in their ports often compete to attract cruise companies by offering access to cheap bunkering, tax free purchases, or new cruise ship terminals. While the capacity of coastal states to inspect ships not carrying the coastal state’s flag is generally limited, cruise ships further exacerbate the problem. They often only remain docked at each destination for a short period of time, rendering even an authorized inspection unlikely or unfeasible given the size of the ship and crew.^{Footnote 79} Similarly, the fluid nature of cruise ship routes local regulatory demands have limited impact for the overall industry. Thus, Venice and Amsterdam banning cruise ships from their central ferry terminals,^{Footnote 80} or Norway imposing zero-emission requirements for cruises entering its fjords starting 2026,Footnote ⁸¹ are all significant developments. Notably, such developments are not exclusive to Global North countries. For example, in 2023 the National Green Tribunal (NGT) in Bhopal, India, ruled out cruise operations in water bodies in Madhya Pradesh. In a September 2023 decision, the NGT ruled that water bodies are “for the benefit of the people.”^{Footnote 82} Nevertheless, barring new multilateral arrangements, such welcome developments may ultimately not have significant influence, or even encourage a “race to the bottom.” Routes can always be adapted to seek the path of least regulatory resistance within the overarching platform.

The platform of maritime commerce and transportation has created the conditions in which the cruise industry appears. In a way, cruise ships may be thought simply as a reflection of that platform, pre-determined by large legal-economic forces, not least of which is international law’s deep historical roots in colonialism.Footnote ⁸³ The view that any particular phenomenon is simply a reflection of a wider social-economic structure is common to many legal theorists, especially scholars building on Marxist and other Structuralist traditions.^{Footnote 84} For them, a reliance on structure can equally explain a legal entity such as a contract, or a physical entity such as a home. But the price such theorists pay, whether discussing a home or a cruise ship, is stripping their object of how it appears as a matter of experience. Zooming in on the cruise ship reveals how the rules are implemented by actors in the industry in practice; it reveals the deeply divided social relations that are consequently created above and below deck, their different vistas, smells and pace. These latter aspects of the legal infrastructure are described next.

C. Object

The most ancient descriptions we have of maritime vessels are pictorial rather than textual. Cave drawings often render a person indistinguishable from their vessel.^{Footnote 85} The charcoal line tolerates no discrimination between wooden mast and human figure. This continuity encapsulates an insight one commentator famously articulated, millennia later, considering an entirely different technology. Reflecting on the conjunction gunman, Bruno Latour urged social scientists to stop thinking of technologies, gun–, and humans, –man, in hierarchical separation. Instead, we must learn to study the “hybrid actor” of person and machine.^{Footnote 86} The upright figure engraved on the rock surface of Alta Fjord, possibly from as early as 4,200 B.C., demonstrates this intimate relationship between person and another machine: The boat. Narrowing our lens to capture the machine, we are directed away from the platform. We move onto deck and hold.

Considering the cruise ship as an object means focusing on its physical and legal design, as well as the types of circulation taking place onboard. Navigation and communication equipment, working and living conditions for seamen, safety procedures, and the number of vests and lifeboats that must be carried along—all of these are specified by international law, but work on a smaller scale, analytically distinguished from the platform.Footnote ⁸⁷ Take for example the safety drill—or “muster drill” as it is formally called. All cruise passengers must observe this exercise within 24 hours of embarkation, required by the International Convention for the Safety of Life at Sea.Footnote ⁸⁸ But disregarding its embodied, audible character as creating new relationships between people and things on board risks missing human experience as an important part of legal infrastructure, The best sources on such relations are perhaps literary rather than legal or social scientific. David Foster Wallace, in his 1996 account of cruise ship travel, describes one instance of this drill, with a specific sensibility toward the ship as object: “we are passing little teak-lined shipboard shops with Gucci, Waterford, Wedgewood, Rolex, and there’s a crackle in the Jazz and an announcement in three languages about Welcome and Willkommen and how there will be a compulsory Lifeboat Drill an hour after sailing.”Footnote ⁸⁹

In Wallace’s text, readers observe the object, but also sense its mobility upon platform, and indeed the friction of business-as-usual capitalism: The drill is a bell separating between the regulated environment on land and an environment for free consumption at sea. The cruise ship, in its waxed grandeur, moves upon the water crossing the lines between both. The movement parallels the transformation discussed above, in Wildenhus, between regulated and de-regulated zones. But the analysis on the level of platform is radically different from the rich description afforded on the level of object. At the moment the cruise ship reaches international waters, loudspeakers launch tax free shopping.Footnote ⁹⁰ Under maritime law, other pastimes, such as onboard gambling, are, comparably, determined by the coastal state, meaning that cruise casinos will open and close when leaving or re-entering territorial waters. You can almost hear distant echoes of laughter that, from the perspective of the object, attach to a particular constellation of rules and materials.

Indeed, from the perspective of object one gains access to a carnivalesque aspect of the cruise experience, associated with transformations afforded by mobility. As a result, in respect to cruises in certain parts of the Middle East, movement may trigger further regulatory shifts, for example in relation to alcohol consumption, dress codes, and public displays of affection.Footnote ⁹¹ The space itself may legally shift as time and distance accumulate. Even the name Carnival Corporation, one of the earliest and today the world’s largest cruise operator, invokes the sense of carefree suspension of ordinary rules. As cultural studies scholar Arthur Berger observes, the cruise experience is reminiscent of Mikhail Bakhtin’s notion of the carnival:Footnote ⁹² Suspending “the laws, prohibitions and restrictions pertaining to ordinary life” to permit "the latent sides of human nature to reveal and express themselves.”Footnote ⁹³

All these aspects of cruise travel bring to the fore the embodiment of the object and its mobility. An account of the international legal platform of maritime commerce and transportation alone fails to convey such details, which are ultimately important for a study of legal infrastructures.Footnote ⁹⁴

The cruise ship has land-based cousins: Free ports, export processing zones and deregulated finance centers.Footnote ⁹⁵ All of these form part of the platform which the ship also belongs to. Like them, the cruise ship is a node in the platform. Indeed, from the perspective of the platform, some may appear quite similar. Each, in turn, however, may also merit its own study as object. As an object, the cruise ship is different, and is associated with different sensory input, whether we think of passengers or of crew. The cruise ship is governed by a “cocktail of enticements and legal exemptions” designed to attract certain kinds of flows while shaking off others.Footnote ⁹⁶ Such enticements cannot be accounted for simply from the perspective of platform and require the point of view of the object, from which the literal cocktail becomes visible. At the same time, however, the platform remains a “software” or “operating system” for how social life within the cruise ship is organized and enforced.Footnote ⁹⁷

Using the narrower object-oriented lens, one may observe that the cruise ship establishes not only social relations, but also a certain experience of temporality. The most decisive innovation in the development of the cruise industry was the shift of maritime travel from a means of transportation into the essence of the journey itself. By abandoning fixed destinations and routes, the cruise ship unmoored a certain sector of the tourism industry from the national laws of specific embarkation and destination states. Time on board was no longer a means of getting from one port to another but designed as an end unto itself: An opportunity for enjoyment and consumption in the deregulated comforts accorded by the maritime legal environment.Footnote ⁹⁸

Children of post-war welfare state politics, early cruises were shaped around the idea of the single class ticket, providing an all-inclusive experience of luxury to the masses as opposed to only a narrow social elite.Footnote ⁹⁹ Yet, then as now, many routes went between former colonizers and colonial territories—echoing the ways in which the regulatory platform itself grew from the colonial encounter.Footnote ¹⁰⁰ For the emergent cruise industry, the point was marketing the colonial dream to an upward moving middle class eager to get a taste of past privileges.Footnote ¹⁰¹ A 1966 BBC documentary filmed aboard a British cruise ship, the Andes, thus shows how passengers are greeted by dressed-up dancers in Freetown, Sierra Leone, as the speaker comments on the “strange ceremony . . . some eternal mystery of Mother Africa, primitive and tribal”; the same film also shows how the attempt to break down class structures onboard prompts repeated tensions and bickering among the passengers.Footnote ¹⁰²

The imagination of an economic space where relations are governed voluntarily, invoked in relation to the Wildenhus, is carried over to the experience cruise ships promise to passengers. Once on board, passengers are often encouraged to “never touch money,” and all purchases are instead charged to the shipboard card doubling as a cabin key.Footnote ¹⁰³ Indeed, this experience of libertarian sea travel sought perhaps its most crystalized realization yet, when in 2020 the Satoshi was launched as the first Bitcoin cruise ship.Footnote ¹⁰⁴ We return to that episode in the Conclusion. For now, suffice it to say that marketing cruise travel to the masses also creates its own onboard hierarchies. The savings realized through open registries—“lower taxes, lower employee wages and lower safety and environmental standards”—remains the premise for branding cruising as affordable luxury.Footnote ¹⁰⁵ Still, the majority of tickets are sold below cost.Footnote ¹⁰⁶ Profit margins instead rest in the tax-free shopping areas, casinos, spa salons, as well as constant opportunities for upselling to bigger cabins, better views, and more exclusive dining areas.Footnote ¹⁰⁷ Everything above deck is geared towards consumption; everything below deck is geared towards cost-cutting and exploitation.

Indeed, cruise ships use massive de-regulation, both on the level of domestic and on the level of international law, to afford rather silly pleasures. But these pleasures also reflect a profound fantasy. One that is about exiting the constant hustle of work in a market economy; one that may even be about denying, for a time, the human fate of termination by death. It is not by chance that, in a capitalist legal environment, cruisers are often elderly. Wallace expresses this sardonically. Eavesdropping into conversations among would-be passengers about to board a cruise, he reports how they explain their choice to each other. Unlike the language used in advertisements,

In the first years of the 21^st century, “relaxing” more and more often meant taking a break from a grueling life of work, as reflected in decades of labor rights struggles for fair wages, maximum work hours and vacation.Footnote ¹⁰⁹ The passengers, who often have themselves worn out by economic pressures that have made relaxation a rather rare experience, are now being paid back. The exploited laborers on board, vice versa, form the first class that stands to lose from this relaxation. The industry’s business model on the one hand caters to this demand for relaxation, and on the other seeks to avoid those same regulatory demands for its own crews through the maritime law environment. To invoke a more recent cultural document, the TV series Succession (2018-2023) reflects a morbid imagination of the cruise crew. Viewers are repeatedly confronted with the fact that workers, and specifically female dancers, who were no longer needed, were simply dispensed with. Acts of murder-at-the-tip-of-the-value-chain are legally buried and morally shruggable.Footnote ¹¹⁰ It is not by chance that cruise ships appear as the criminal underbelly of the family’s empire of media holdings.

Image.

“What Happens at Sea Stays at Sea.” Poster available online of Brightstar Cruises, the company featured in Jesse Armstrong’s TV series Succession.

The pursuit of cost-cutting creates significant environmental negative externalities as well. The vast majority of cruise ships run on heavy fuel oil (HFO), which is the cheapest but also the dirtiest fossil fuel available.Footnote ¹¹¹ Most cruise ships moreover do not have any particulate filters or catalytic converters to reduce emissions.Footnote ¹¹² Such filters are mandatory for land-based vehicles but not in the maritime legal infrastructure. According to one study, in 2017, the 47 cruise ships owned by Carnival Corporation emitted ten times more sulfur oxide in European seas than all of Europe’s 260 million plus passenger vehicles.Footnote ¹¹³ This is problematic because sulfur oxide toxic gas causes, among other things, acid rain.Footnote ¹¹⁴ The environmental damages the cruise ship generates, as objects, therefore have the potential of contributing to the destruction of global environment—reshaping the platform, to continue the metaphor.

The lack of regular oversight and enforcement has further led to a range of unlawful practices. Cruise lines have been the subject of multiple legal procedures related to unlawful pollution, substandard labor conditions and the violation of onboard safety standards. For example, in 2014, Dutch authorities fined Royal Caribbean $760,000 for multiple breaches of labor conditions on board its cruise ship, Oasis of the Seas.Footnote ¹¹⁵ In 2016, Carnival Corporation received the largest ever criminal penalty for “deliberate pollution of the seas and intentional acts to cover it up”—$40 million; and in 2019 plead guilty to further environmental violations leading to an additional fine of $20 million.Footnote ¹¹⁶ All these are components of the business-as-usual friction between platform and object, such that ultimately do not threaten any company, not to mention the entire business model.

How do the legal rules constituting the object differ from those constituting the platform? In both contexts, we are strictly in the realm of transnational law: Both rely on public as well as private sources, and on a combination of international and domestic ones.Footnote ¹¹⁷ But while for the platform public international law per se is more important, to account for the object we need a greater reliance and private and commercial law. Beyond international law, regulation, and torts, contracts are crucial in the legal construction of the cruise ship as object.

Two particular kinds of contracts are worth emphasizing: Cruise tickets and labor contracts for crew members. Throughout the history of cruise ships, tickets have served as consumer contracts. They have therefore been the favored way of “informing” passengers to which jurisdiction they will need to turn; shall they have a dispute with the seller. What law will apply is also something passengers should look for there. The technique has often raised questions among judges, but has survived throughout the industry’s lifetime.Footnote ¹¹⁸ As for labor contracts, the majority of crew members are recruited from a host of different countries, predominantly in South Asia.Footnote ¹¹⁹ Because open registries impose few labor right restrictions and even less oversight, the organization of crew in this manner enables highly disparate salary and working conditions across both nationalities and crew categories onboard the same ship. It is not uncommon for crew members employed in low-skilled functions to work between 80 and 100 hours a week, with an hourly salary of less than $2.00.Footnote ¹²⁰ In practice, contracts are moreover handled by national recruitment agencies, specializing in migrant labor. These may require prospective crew members to pay a placement fee to the agency as well as cover the air ticket to wherever the cruise ship is docked at the time of embarkation; placing many crew members in substantial debt from the moment their contract commences.Footnote ¹²¹ Most crew contracts moreover contain mandatory arbitration clauses, effectively barring the industry’s workers from bringing employment claims in the jurisdictions where cruise ships operate.Footnote ¹²² Arbitration is instead limited either to the cruise ship’s flag state or the national courts of the recruitment agency—in some cases a combination of both. In a 2013 case involving an Indian crew member employed by Carnival Corporation, the seafarer employment agreement thus specified the Philippines as the arbitration forum, and Panamanian law to govern the contract.Footnote ¹²³ In sum, both passenger and crew contracts serve to extend the cruise ship’s legal infrastructure by narrowly tethering their rights and claims to carefully chosen jurisdictions and legal systems, far from the object’s physical operation.

D. Rupture

The COVID-19 pandemic constituted a rupture in the constant friction between the platform and the object. Not only did the cruise industry contribute to the global spread of the virus in great speed; it has also refused to grant remedy to those it harmed, primarily passengers and crew.Footnote ¹²⁴ Equally important, the pandemic made visible the relationship between platform and object in a different way, bringing into perspective its intimate connections and injustices as the otherwise smooth infrastructure experienced an unprecedented breakdown. Set in plain view, this infrastructure raises crucial questions on how notions of accountability and safety should be transformed. Part E, dedicated to our notion of infrastructure, will address the latter questions.

The most well-known incident was the Diamond Princess affair. The ship, owned by Carnival Corporation’s subsidiary, Princess Cruise, was registered until 2014 in Bermuda, and is currently registered in the UK. On January 20, 2020, The Diamond Princess departed from the Port of Yokohama for a tour of Southeast Asia, with 2,666 passengers and 1,045 crew on board. An 80-year-old resident of Hong Kong boarded the cruise after visiting Shenzhen, China. On January 31, after having debarked the vessel, he tested positive for COVID-19. Hong Kong’s Department of Health immediately contacted the agent of the ship’s operating company, but the ship did not immediately inform the passengers− they were notified two days later. In a scenario reminiscent of the Titanic heading for the iceberg, the cruise ship continued to offer entertainment as usual, including fitness clubs, theaters, casinos, bars, and buffet-style restaurants.Footnote ¹²⁵

On the evening of February 3, the ship returned to Yokohama Port and anchored off the coast of Daikoku Pier. Under Japan’s Law of Quarantine, the Japanese government decided to quarantine the ship. And as positive tests multiplied, and under World Health Organization (WHO) guidelines, the government decided to continue to extend the quarantine period further. A total of 3,700 passengers and crew were quarantined for what was expected to be a 14-day period. But new cases were quickly and continuously confirmed during February, including among crew members and Japanese officials. On February 17, two U.S. government-chartered planes departed for the United States, carrying hundreds of U.S. citizens who were passengers of the cruise ship. Canada, Hong Kong, Australia and Italy also followed the United States within a few days.Footnote ¹²⁶

On February 19, the first passengers with negative test results began to disembark. The next day, the World Health Organization’s Director-General reported the total number of the cases outside of China to be 1,076 and stated that over half of these cases occurred among the passengers on the Diamond Princess. By late March, it appeared that 712 of 3,711 people on the Diamond Princess, had been infected by COVID-19. In early March, Indonesia evacuated 69 Indonesian crew from Diamond Princess, after their COVID-19 test results were negative. On 16 May, Diamond Princess finally departed from the Port of Yokohama and began sailing to Port Dickson, Malaysia.

Meanwhile, the Japanese government applied Article 5.1 (14) of its Immigration Control Law to deny the docking of another cruise ship, the MS Westerdam. The provision, entitled “Persons with reason to be deemed likely to harm Japan’s interests and public interest,” has been applied only once since 1945.Footnote ¹²⁷ It is an emergency provision, and Japan applied the provision to the ship only after designating COVID-19 a threat to Japanese national security. Consequently, “the MS Westerdam canceled its itinerary and was placed in a situation where it was unable to decide where to go.”Footnote ¹²⁸

A week later, on February 12, Cambodia agreed to let the MS Westerdam dock and allow passengers to disembark. Prime Minister Hun Sen told the media that “The real disease is fear, not the virus.”Footnote ¹²⁹ WHO director general Tedros Adhanom praised Cambodia’s actions as indicative of “international solidarity” in cases where cruise ships are denied entry “without an evidence-based risk assessment.”Footnote ¹³⁰ On February 15, the Malaysian government announced that it had detected COVID-19 in an 83-year-old American woman who had disembarked from the MS Westerdam. One author who published early observations on the Japanese response wryly noted: “Given that public health and legal system are closely linked, the interrelationship between laws and regulations, such as the Infectious Disease Law, as well as their relationships with international law, should be considered.”Footnote ¹³¹

A third, and final, incident worth mentioning was that of the Ruby Princess, also owned by Carnival Corporation’s Princess Cruise subsidiary. The ship turned out to be the single most important vector for COVID-19 in Australia, accounting at one point for more than 10% of the country’s cases.Footnote ¹³² In Tasmania two cruisers were the probable source of an outbreak so severe it forced a major hospital to shut down. The crew, meanwhile, became virtual prisoners on their own vessel, some unable to return home for months.Footnote ¹³³ 28 people died of the illness, the most of any voyage.Footnote ¹³⁴

The worldwide closing down of national borders following the COVID-19 pandemic further led to a situation in which multiple cruise ships became stranded at sea, unable to access ports or disembark passengers. From mid-March 2020, multiple countries—including the United States, Canada, Chile, Australia, New Zealand and Singapore—each banned cruise ships and other foreign-flagged vessels carrying larger numbers of people from docking.Footnote ¹³⁵ Wealthy states in the Global North scrambled to negotiate disembarkation and return passage for their nationals among the stranded passengers. These efforts were often complicated by demands by port states that any person disembarked first be kept in quarantine or transported via “safe corridors” to avoid subsequent risks of infection. While most passengers had disembarked by the end of April, more than 100,000 crew members, still remained onboard.Footnote ¹³⁶ In Manila Bay, dozens of cruise ships started piling up waiting to disembark crew members. The Philippines had provided the bulk of foreign labor to the cruise industry.Footnote ¹³⁷

Although the immediate challenge of disembarkation was eventually resolved, the political and legal challenges are still mounting. In the United States, Congress has launched an inquiry into Carnival Cruise Lines for its handling of the COVID-19 pandemic, linking the current outbreak to past health warnings from the US Center for Disease Control (CDC) and the World Health Organization.Footnote ¹³⁸ In Australia, a special commission has been charged with investigating the actions, protocols and policies of crew onboard the Ruby Princess, as well as the ship’s operator, Princess Cruises, and Australian authorities, for their role in disembarking infected passengers in Sydney Harbor.Footnote ¹³⁹ The Japanese government has called for a new set of international rules to clarify the responsibility of both private actors and states in connection with outbreaks of infectious diseases onboard cruise ships.Footnote ¹⁴⁰ Several lawsuits, including a few class actions, are further pending from both passengers, claiming that cruise companies failed to alert them to the risk of infection prior to boarding and that insufficient measures were taken to diagnose and treat cases onboard, as well as crew members and their relatives, arguing that companies did not adequately protect crew during their confinement onboard.Footnote ¹⁴¹

The early spread of COVID-19 onboard cruise ships proved an important case for studying the epidemiological characteristics of the virus.Footnote ¹⁴² At the same time, it also rendered the legal and jurisdictional arrangements the industry rests upon ripe for critical analysis.Footnote ¹⁴³ The pandemic represented an unprecedented breakdown in the industry’s otherwise smooth operation. While coastal states shut their ports, pointing fingers to remote flag states vested with formal oversight responsibilities on the vessels,Footnote ¹⁴⁴ wealthy states in the Global North cherry-picked their nationals among the passengers for exceptional measures of protection.Footnote ¹⁴⁵ All the while, poorer states in the Global South, who supply most of the labor onboard, were exposed to dramatically heightened risk and prolonged struggles to secure safe disembarkation. The way the COVID-19 crisis played out on cruise ships is symptomatic of the deeper structural challenges of the transnational legal environment.Footnote ¹⁴⁶ To use language already quoted above, the COVID-19 pandemic revealed what it means to have a global industry of “floating colonies.”Footnote ¹⁴⁷

The rise of the cruise industry—or “fun ships” as they were initially marketed—is often described as the “democratization of luxury,”Footnote ¹⁴⁸ granting a new Western middle-class access to privileges hitherto reserved for the elite. Studies have pointed to the extensive environmental harms caused by cruise ship emissions, and their propensity to dispose large quantities of waste into the oceans “with surprisingly little regulation.”Footnote ¹⁴⁹ When COVID-19 came, it transformed the cruise ship into an icon of dystopia. This was not only due to the prolonged onboard quarantines of passengers and unsafe living conditions of crews below deck. The reason cruises became so central to the health crisis is deeply rooted in the platform it rests upon. Luxuries and exploitation are intertwined in a web of jurisdictions and rules that apply to cruise ships and constitute them as objects of international law.Footnote ¹⁵⁰ Once the virus boarded cruise ships, it revealed the harmful impact of this legal infrastructure. Like contrast fluid injected into the body to help a physician visualize pathology, so the virus entered the arteries of the maritime platform and visualized pathologies in the global economy. Cruise ships were its entryway.Footnote ¹⁵¹

How, then, does rupture work, not only on the cruise ship but also as a generalizable category? The cruise ship, in its entirety as an object, is equipment for enjoyment. In its characteristic ostentation, the cruise ship is designed to impress the passenger and contribute to their pleasure. But this doesn’t mean that during the cruise, the passenger will perceive all the mechanisms that make enjoyment possible. Spatial planning conceals some of them. Think of separations between passengers and crew; these are part of the object. Legal rules hide others: Think of legal and economic benefits obtained by jurisdictional differences and flags of convenience; these are part of the platform. Unlike the object, we cannot experience these through use. It is fair to assume that in the activity of cruising, all of these mechanisms will fade from view. But when rupture occurs, all these mechanisms become conspicuous. For our own argument, it is particularly important that not only the object becomes conspicuous. Rupture also exposes the platform in an unprecedented way.

Our analysis of rupture will be familiar to readers versed in the philosophical tradition of phenomenology.Footnote ¹⁵² Yet, within this philosophical tradition, what we call the platform has generally been underemphasized. Our intervention, addressed at international legal scholars, aims to render phenomenology’s emphasis on experience relevant to “critical” international lawyers, with their emphasis on larger structures.

At this point, we must address a potential objection that may arise from international legal scholars, especially those rooted in the critical tradition. Has our analysis of “rupture” arrived at yet another articulation of international law as “a discipline of crisis”?Footnote ¹⁵³ Recall that this disciplinary orientation was precisely the target for critique, in a classical paper by Hillary Charlesworth. Back in 2002, Charlesworth observed that a focus on large international crises diverts the attention of international lawyers from the everyday outcomes of international law. Focusing on the Kosovo crisis, she reflected on how international lawyers are fond of seeing themselves as advisors of powerful actors in dramatic moments. This, in her account, occludes issues such as distributional injustices, gender, and other concerns that are embedded into what we think of as “normalcy”. In her words:

Bringing this back to our own terms, why not focus on the relations between object and platform, and stay there? Why do we need to load such drama on the COVID-19 crisis, as if the ailments of the cruise industry should not have been clear much earlier?

Indeed, taken on its own, rupture may have produced the crisis fallacy that Charlesworth has warned of repeating. Yet, an important insight from infrastructural studies is exactly how “crisis” or “breakdowns” also make visible the underlying politics, practices and distributive consequences of any given system.Footnote ¹⁵⁵ But by juxtaposing it with object and platform, we believe we are able to offer a kind of synthesis between “the crisis perspective” and its important critique. When situated between object and platform, crisis is domesticated, and resituated within an analysis of international law that is oriented towards the everyday. We are thus not arguing for a kind of crisis exceptionalism, nor are we seeking to provide advice to powerful actors. Correspondingly, our analysis is not divorced from angles such as global distribution or gender. Quite to the contrary: Our terminology is meant to help international lawyers go even further into a consideration of “the everyday,” for example by shedding light on old age and certain patters of consumption—and fun.

E. Infrastructure

The cruise ship is not only a product of a cultural taste for cyan seascapes, narwhal sightings, or conga lines. When seen as object against platform, it appears also as a compressed global value chain, and a machine for the allocation of costs and risks. Though not entirely unidirectional, the legal history of the cruise ship is one in which risk is distributed upon all the parties involved, yet with considerable immunity for the cruise operator. This dynamic is aimed to achieve maximum pleasure during the voyage, in cost attainable for members of a global upper-middle class. But this leads to environmental harms and large-scale labor exploitation. It leads to an exposure of passengers to risk, by removing their legal protections. This is often what has happened, for example, when relatives of persons who have lost their loved ones due to accidents on board have sued. Lynda Sanford, survivor and vice-president of the International Cruise Victims Association, testified in 2012 before the Senate Committee on Commerce, Science and Transportation of the United States. She captures this dynamic in protesting the 1920 Death on the High Seas Act, which “entitled my mother’s corpse to receive only burial expenses!”Footnote ¹⁵⁶

With the rupture of COVID-19, cruise ships ended up imposing and heightening the risk and speed of infection the world over. When the virus boarded cruise ships, their contained environments not only disseminated and accelerated contagion, but also upended the carefully guarded social divisions for both passengers and crew. Viewing the cruise ship as a compressed global value chain also highlights its outcomes in terms of risk and cost imposed on its surroundings. Fully understanding these aspects of the cruise industry requires a composite conception of legal infrastructure, which we turn to, by way of conclusion.

The notion of “legal infrastructure,” in its earlier appearances, starting about three decades ago, referred generally to legal rules that formed the basis for the market. These included for example rules of property, contracts, and corporations.Footnote ¹⁵⁷ The idea was that a finite set of rules all form the different kinds of transactions which in turn constitute economy and society. The founding generation of Critical Legal Scholarship (CLS) was not so invested in the notion of “infrastructure,” nor does the word appear in their work particularly prominently. Gesturing back to Karl Marx, their word was simply “structure.”Footnote ¹⁵⁸ But CLS ideas nevertheless originate the insight that concepts like property and contract render human agency limited and structure the entire society in a rather rigid framework with limited possibilities for change. When Roberto Unger writes against “false necessities,” he wants to shake off the shackles of the legal platform.

More recently, scholars such as Benedict Kingsbury, and others, have referred to infrastructures in a slightly different meaning.Footnote ¹⁵⁹ Rather than thinking, only, about the law as infrastructure, their point was that actual physical and technological infrastructures–this may be pipelines or digital social networks, have their own regulatory effects. They have thus discovered the law of infrastructure.Footnote ¹⁶⁰ To study law in the transnational environment, they argue, we must not only consider legal infrastructures in the old sense of property, contract, etcetera. Equally important were physical and technological infrastructures, which develop in a co-constitutive relationship with rules such as those of private and corporate law. The central intellectual father figure of this body of literature is the late French philosopher, Bruno Latour; influential too was scholarship within the larger tradition of Science and Technology Studies (STS). With the risk of generalization, Kingsbury’s group can be lumped with the older notion of “legal infrastructure.” All of them look at the broad vista of law, society, and economy. In our own terms, all of them are scholars of the platform.

Interestingly, however, in recent years another slightly different orientation has developed within legal scholarship. Like Kingsbury’s emphasis on infrastructure, this tradition too stems out of the basic insights that Latour and the STS literature have been propounding for decades. Bringing to bear a certain aesthetic sensibility, the “legal objects” literature—introduced compellingly in one edited volume—focuses on embodied things.Footnote ¹⁶¹ Recall Latour’s invitation to study the hybridity of person and machine. The view was recently developed in the “legal materiality” literature.Footnote ¹⁶² As Hyo Yoon Kang and Sara Kendall explain, this literature seeks “to foreground the vitality of matters in an immanent frame, eschewing the metaphysical and ethical tendency to privilege the human over the non-human and the mind over matter.”Footnote ¹⁶³ By “aesthetic sensibility” what we mean is that for these scholars it seems like color, size, weight, and what art critic Michel Fried called “objecthood,” make much more of a difference. Granted, this aesthetic or phenomenological aspect is not always spelled out. Nevertheless it is there and is worth consideration. As Jessie Hohman writes, “taking the object as the primary frame of reference compels us to bring our abstract thinking, our focus on rules, doctrines and principles, down to the material level where their impacts are felt on and in communities, homes, and bodies.”Footnote ¹⁶⁴

The legal materiality literature thus encourages us to examine our object of inquiry in terms of its observable operation. The interesting question is what does this “machine” or “assemblage” do in the world? How does it operate? What outcomes does it generate?Footnote ¹⁶⁵ Following scholars such as Sundhya Pahuja and Luis Eslava, Hohman calls for a study of international law that takes seriously our own day-to-day experiences of such law.Footnote ¹⁶⁶ This means situating the study in the lives of women and men that interact with objects that are constructed by international law; but also focusing on lives shaped by legal construction of objects. The cases of cruise ship passengers such as Sanford, or crew members such as Mykola Molchun, a Ukrainian citizen who has sued Royal Caribbean in a class action for contacting COVID-19, are surely in point.

Initially influenced heavily by European structuralism, the CLS generation eliminated phenomenological insights as too tied to individual experience and subjectivity.Footnote ¹⁶⁷ The vantage point of the platform follows their footsteps in insisting that part of the inquiry must seek to be similarly structural. But the “legal objects” scholarship may offer one avenue in which personal experience is reintroduced, as if from the back door. This is not a naïve phenomenology. Indeed, within the cruise ship itself we have seen structural hierarchies play out through rules of contract and limitations of liability. Yet, the object-oriented literature seems to suggest some residue of relevance to how a person encounters and feels an object.Footnote ¹⁶⁸ Our inquiry into cruise ships in international law and into the cruise industry, aimed first to analytically distinguish between the two modes of socio-legal thought: The platform and the object.

More importantly, we tried to suggest an infrastructures-based methodology for international lawyers. What we call “infrastructure” is neither object nor platform on its own. It is the amalgam of platform and object; and how one transforms upon the other. Indeed, it gestures towards what is under (infra-) the structure—or in our terminology, platform. Underlying the structure, in this account, is an experience of human body bumping against it; of seeing and feeling particular entities that despite being part of a larger network of power relations, have their own peculiar properties, which lend themselves to experience. In thinking about infrastructures, international lawyers should pay particular attention to the friction between platform and object. Covid-19, in that regard, was but a moment of relatively radical transformation.

The analysis we offer here can be applied in numerous other contexts. For some scholars, the migrant life raft has been an evocative entry point to a “materialist” study of international law.Footnote ¹⁶⁹ Roxana Vatanparast’s has taken a similar approach to objects at sea in a recent study of the infrastructure of submarine cables.Footnote ¹⁷⁰ To move away from the maritime and take a perhaps more mundane example, one could consider the internet as a platform and the hand held device as an object. What would an inquiry of legal infrastructure starting from this pair look like? To know something about the platform we would need to know about the rules that have made the internet to begin with. But studying the object would also lead us to commenting on the fact that it often shapes how one stands at a bus station; indeed, that it is held in one’s hand; and that to access it might be necessary to enter your firstborn’s birthday. For better or worse, a mobile device may be experienced as carrying one’s entire identity.Footnote ¹⁷¹ Now think of the friction between platform and object, and about moments of rupture in their relationship. The mass introduction of biometric data such as fingerprints and facial recognition into mobile devices is one; the long-term psychosocial implications of generations of children tethered to their connected devices might become another. Arguably, both cruise ship and mobile device have in common that they help reveal the importance of mobility for international legal scholarship.

One possible objection to this scheme is that it seems to suggest infinite regress. Is the cocktail bar not an object on the cruise ship platform, just as the cruise ship is an object on the larger platform of maritime transportation and commerce?Footnote ¹⁷² Despite the possible confusion, the answer is no. Human experience should, in our opinion, be inserted into a larger study of legal infrastructure. As grand as contemporary cruise ships may be, they are still perceptible in full, in some way, by a person. They stand out against their blue background. Although the cocktail bar on a cruise ship might be considered as its own object, the cruise ship is not a platform in the sense we offer here. A study of legal infrastructures must bring together the large network with the identifiable thing, even if the thing happens to be mediated and observable through a technological device.

The study of object and platform, and the occasional rupture in their mutual relationship, is fruitful for international lawyers who are trying to think of infrastructure as a legal methodology. Basic building blocks such as the state, the corporation, and the individual, cannot simply be posited at the rock bottom of the legal analysis. The three can variously be deconstructed into their parts or amalgamated into groups, in ways that confuse legal analysis and cross international borders. If this is the case, international legal scholars who apply a theory of infrastructure are confronted with a dilemma: Where do we start our analysis from? The answer we offer is an invitation to start with legal infrastructure, that is, the relationships between a large and potentially global platform and a particular object, available for human experience. This method is consonant with the basic insight that law is transnational “all the way down,” as one of us has put it elsewhere.Footnote ¹⁷³ Finally, our emphasis on legal infrastructure, rather than infrastructure in general, comes with a reintroduction of experience. For something to be legal, it must have already somehow been organized by human experience.