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T.J. Demos: In the face of governmental immobility in addressing climate change, one might argue that experimental jurisprudence offers new, if as yet unrealised, possibilities for intervening positively in the way human governance systems define, use, and protect the environment. I’m thinking of the recent development of ‘wild law’ or earth jurisprudence,1 the ‘Rights of Mother Earth’ (as established recently in the constitutions and legal systems of Bolivia and Ecuador), and the growing number of lawsuits against corporations by indigenous communities (such as the Inupiat of Kivalina, Alaska who tried — ultimately unsuccessfully — to sue ExxonMobil in a United States district court in 2008). But for artists to engage such legal subjects is distinctly challenging, owing to the discursive, bureaucratic, and anti-visual nature of law. How do you think of your artwork —which is amongst the most direct in addressing the conjunction of law, land, and environment—as confronting that difficulty?

Amy Balkin: While there is a significant history of discursive, bureaucratic, and anti-visual artwork, legal subjects (as you suggest) can be challenging for artists – especially for those working without a background in jurisprudence and its history, codes, forms, processes, its specialist knowledge related to ethics, norms, and time, or its fraught relationship to justice and role in legitimising the nation state. While the law does meet the visual and performative in the public trial, visual evidence and legal transcripts, codes, and other documents are also visual by-products of closed or occluded processes. Making existing legal processes, documents and the machinations they represent more public has been one response in my work, such as in an audio tour containing stories of legal struggles to close toxic waste dumps sited in poor, politically weak communities along a public freeway corridor in California, but hidden from view (Invisible-5, 2006); through participatory public reading of publicly available but difficult-to-parse documents (Reading the IPCC Report, 2009), or in the collection of materials contributed by people living in places that may disappear owing to the combined political, geographic, and economic impacts of climate change, and their organisation into an archive that is also a collection of community-gathered evidence and a public record (A People's Archive of Sinking and Melting, 2012-present). In the course of developing these projects, for me formative readings have included China Miéville's Marxist analysis of international law, Between Equal Rights (2005), Luke Cole and Sheila Foster's From the Ground Up (2001), and Larry Lohmann's writing on emissions trading, including Carbon Trading (2006), which contains a concise history of its financial mechanisms and neoliberal origins. In 2009, drawing from these writings, I gave a talk on what shape political resistance in the difficult-to-inhabit space of the atmosphere might look like.2

TJD: Why take up the law in your work, especially when – as you point out, quoting China Miéville, ‘[t]he attempt to replace war and inequality with law is not merely utopian but is precisely self-defeating. A world structured around international law cannot but be one of imperialist violence. The chaotic and bloody world around us is the rule of law’.3 How do you see your work intervening in such a rule of law?

AB: States use the law as a tool to undermine the possibility of a future within ‘global limits’, naturalising and institutionalising the environment as property. As such, law, backed by the potential for military force, forecloses other, equitable, sustainable, and just relationships. In that my work is increasingly concerned with the intersection of politics and future scenarios for climate change, it was unavoidable to look at the law and how it constructs both present and future, particularly related to new enclosures and commodification of still-shared commons, the framing of and legal arguments for new kinds of borderisation and other frameworks for structural state violence that are being put into place in response to global warming, and in the politics of counter demands for environmental and climate justice in the face of the construction of these unjust futures and their terrible implications.

TJD: And more specifically, you work with the law in the United States...

AB: In the United States, the environmental justice movement and environmental justice law, together arising out of the American civil rights movement, have been a powerful instrument for low-income and non-white communities faced with unequal health burdens produced by structural racism involved with the location of polluting projects. In this regard, my work is informed by and is particularly indebted to the work of Luke Cole and Brent Newall of The Center on Race, Poverty & The Environment, who have both served as attorneys for the Kivalina City and Tribal Council in the case you mention (Kivalina v. ExxonMobil Corporation, et al.), using a strategy based on a federal common law claim of public nuisance.4 We interviewed Luke Cole about his representation of the Padres Hacia una Vida Mejor in Buttonwillow but I didn't discuss his work in Kivalina at the time (the audio transcript of the Kivalina appeals from the US 9th Circuit Court archives is available online).5 So I have been more directly influenced by proximity to environmental justice advocacy legal work than in the work of framing the rights of nature, not that they are exclusive.

TJD: I recently participated in a conference hosted by the Contingent Movements collective at the Venice Biennale’s Maldives Pavilion,6 and Davor Vidas, a specialist in international law at the Fridtjof Nansen Institute, Norway, also spoke, giving a presentation about the need to organise international law around human rights rather than territory when addressing the threat of climate change. When I asked him how recent developments in Ecuador and Bolivia regarding the institution of the rights of nature are affecting shifts in international law, he responded flatly that they aren’t affecting any shifts, because such developments have been ‘ineffective’. This was quite depressing. Do you think the artistic realm can provide an arena of creativity and experimental thinking that can get us beyond the blockage of such legal realism, and can it have an effect more broadly? Or do you find environmental justice in the context of the US more open to bringing about political transformation, and more open to cultural or artistic collaboration, than rights-of-nature discourse?

AB: I'm not surprised to hear Davor Vidas' position on the lack of momentum of the rights of nature, but do think there is potential for environmental justice in the US, and by extension the global climate justice movement to bring about political transformation, particularly based on its origin in the Civil Rights Movement, and its networked, community-based, grassroots, united-front organising strategies and given the success of those struggles.

Amy Balkin, still from slideshow documentation of Public Smog, 2004-present, 21 minutes and 28 seconds.

TJD: With Public Smog (2004-present), you’ve attempted to add Earth’s atmosphere to the list of protected areas on UNESCO’s World Heritage List. In your contribution to dOCUMENTA (13), 2012, you assembled some 50,000 signed postcards and sent them to Germany’s Minister of the Environment, Peter Altmaier, requesting that Germany lead a coalition process to get the Earth’s atmosphere on the UNESCO list on an emergency basis, as only a state can do this. In November 2012, a further 40,000 postcards were shipped. Germany declined the request. What is the current status of your campaign, and what are your future plans in regards to this goal?

AB: I first approached Germany to lead a process as a way to consider the potential and limits of soft power of an exhibition like dOCUMENTA. The invitation to Germany was made with the support and assistance of Dr. Birgitta Ringbeck, who wrote Management Plans for World Heritage Sites (2008), Prof. Dr. Hartmut Vogtmann, the first vice-president of the German League for Nature and Environment, whose publications include Transboundary Water Resources (2005), and Prof. Dr. Gerd Weiss, president of Germany's Hessian State Office for Historical Monuments. After the rejection of this first proposal in 2010 by then-current Minister of the Environment Norbert Röttgen, I invited any and all UNESCO States Parties to lead a coalition process. There were 13 responses in total to the mailing of 186 letters, sent in six languages, including one reply of interest from Dr. Ana Maui Taufe'ulungaki, the Minister of Education, Women Affairs, and Culture for the Kingdom of Tonga/Puleʻanga Fakatuʻi ʻo Tonga, based on her position on Tongan values as framed within her 2009 talk ‘Safeguarding Of Intangible Cultural Heritage’.7 Taufeʻulungaki’s reply stated interest from Tonga, but acknowledged the lack of a budget and administrative support to lead a coalition effort or begin the process. This was followed by a request to dOCUMENTA's audience to petition their governments from within the exhibition to lead an emergency nomination process. Roughly 90,000 audience members signed and mailed postcards, sent in two batches to the new Minister of the Environment, Peter Altmaier, in September and November 2012, who declined the request.8 I'm presently interested in inviting responses to the letter, but haven't done that yet. The current status of the attempt to inscribe earth's atmosphere is that it still awaits a State Party to lead a coalition effort or begin an emergency nomination process, but the project may turn in other directions. That said, the work done by 90,000 people who took the time to sign and mail a postcard is also unfinished.

TJD: What would such responses be? And how is the postcard project unfinished?

AB: A response would involve inviting interpretations of the letter from individuals positioned to critique the declined request in relation to Germany's on-going political activities in climate negotiations, and other political, historical, and cultural readings. The postcard project is unfinished in that its demand has not been met.

TJD: What of Bolivia or Ecuador as potential State Partners?

AB: From 2010-2012, when I first began inviting nations to lead the coalition effort, I thought perhaps Bolivia or Ecuador might respond positively, given their legal establishment of the Rights of Mother Earth, but neither did. I sent a follow-up letter to Bolivia acknowledging the enactment of la Ley de Derechos de la Madre Tierra and with a further request, but did not receive a response (I'm not sure it ever reached the representative who would be in a position to respond).

TJD: You’re right to point out that there’s an important history of conceptual aesthetics of administration and of law, and I’m curious about your work’s relation to those precedents, especially to art in the environmental domain — such as Agnes Denes’ Tree Mountain (1992-96) or Wheat Field (1982), and Robert Smithson’s projects working with abandoned mines and airport landscapes. While your art is sometimes compared to these past models, your approach seems quite different to me. It’s not about the positive remediation of damaged land, for instance, but a negative critique of its compensatory logic and ultimate impossibility or ecological inadequacy.

AB: Public Smog, actually, is both: a counter model that contains a negative critique and the possibility of positive remediation.

Amy Balkin, still from slideshow documentation of Public Smog, 2004-present, 21 minutes and 28 seconds.

TJD: Can there be positive remediation when the atmosphere is global, so that to protect it in one place — e.g. ‘South California’s South Coast for Quality Management District, covering all or parts of Los Angeles, Orange, Riverside, and San Bernadino Counties’, as your project defines it — is necessarily incomplete, even impossible when it comes to an environmental region in flux?

AB: The atmosphere is a complex dynamic system, it’s true, but there can be positive remediation. Two very different examples are the 1979 Convention on Long-range Transboundary Air Pollution, and the successful activism in 1999 by a coalition of residents and farm workers from Westley, California, who fought to have an enormous toxic smoke plume from a tire fire extinguished rather than allowed to burn out. And while fraught both in origins and at present, the World Heritage model strongly supports local and regional approaches for protection of varied types of ‘cultural landscapes’ of ‘outstanding universal value’ including ‘ongoing ecological and biological processes’. Benjamin Morris, for example, has written hypothetically about protecting local atmospheric processes, specifically Scotland's haar (coastal fog), through World Heritage in the context of climate change.9

TJD: Also, I don’t think of your work so much as a private or individual-led artistic gesture, as with past eco-art models, but rather part of an investigation into reconceptualising and realising a new mode of the commons, as well as pointing out the challenges of that goal.

AB: That's right.

TJD: Also, it’s not directed toward a specific local geography (like a strip mine or an enclosed lot), but concerns spaces of global geography without boundaries (like the Earth’s atmosphere).

AB: Yes, this is true, which is one of the reasons that Rodolphe Imhool of Switzerland suggested to me that inscribing earth's atmosphere on the World Heritage List would undermine the ‘forest by forest’ World Heritage approach, which is about specific and local relationships. That said, the atmosphere is simultaneously global, transnational, specific and local, and embodied.

TJD: And your work isn’t focused on intervening in the physical condition of geography, but rather on the terrain of international law and institutions that govern land and environment, and that financialise nature.

AB: Actually, it's focused on intervening in both, as much as law and institutions are spatial and site-specific, such as the relationship of the physical and spatial qualities of the oceans to the development of maritime and international law. I see an interesting link here between Mierle Laderman Ukeles’ 1969 ‘Manifesto for Maintenance Art’, for instance, and the precautionary principal, as established recently in environmental and climate justice. My work is also frequently situated and concerned with scale, wastelands, and tourism, which are common subjects of land art.

Amy Balkin, still from slideshow documentation of Public Smog, 2004-present, 21 minutes and 28 seconds.

TJD: Perhaps, then, it’s important to stress your connection to those past models, ones that you also reinvent within the conditions of contemporary climate change and the current legal structures and financial mechanisms employed for addressing it, with links to the international climate justice movement and environmental law. Can you talk about the reception of your Public Smog billboards in Douala, Cameroon in 2009, which proposes a different context for this work, one in Sub-Saharan Africa, and how it compares to the reception of your work in the US and Europe?

AB: I didn't travel to Cameroon at any point during the period for reasons unrelated to the project. So my understanding of the reception is limited by that distance, and largely based on reading what was written in the local press. The work was sometimes used as an entry point for journalists to discuss climate change and the politics and structural impacts of emissions trading on Africa. That said, the news response was more politically complex than that, including a call for NGOs to purchase the maximum amount of Certified Emission Reductions (CERs) possible to protect the South's future development, but also read as political satire containing a critique of emissions markets and a call for the commons. This is similar to the mixed readings that some of my work has received in the US and Europe, although that varies widely by project.

TJD: With your project A People’s Archive of Sinking and Melting, you’ve invited people to contribute to a growing assembly of objects that testify to a changing ecology. You’ve described it in various ways: as a ‘time capsule’ for a near future when hundreds of millions of people are likely to be displaced; as a ‘public display of evidence’ for a present when grave mistakes are being made; a ‘proxy for political consciousness’; and a ‘sort of commons, a global network of the shared experience of environmental destruction’.10 I’m curious about the simultaneity of the melancholy aestheticisation of our own destruction, on the one hand, and the activist call to political action, on the other, that are both present to varying degrees in the project. Do you see these extremes as related, and if so, how?

AB: Perhaps the simultaneity is a response to the doubling of temporal perspectives I'm attempting to engage and asking of participants to consider: to think forward in time and look back. The request for contributions asks a potential participant to reflect upon their own social, political, and geographic situation within current climate politics, assuming incomplete knowledge and information asymmetry. This requires the demands of foresight and for some the willingness to consider personal loss– whether actively experienced, imagined, or predicted, of place, status, culture, and cherished, familiar, or survivable conditions. The varied descriptions also describe my intentions in initiating the archive to potential contributors and reflect my own unanswered questions as to how to read materials of potential aftermaths. They are also responses on the unstable status of the object within preservation. For what scenario and which future people are things preserved?

TJD: A continuous concern of yours is the investigation of ways of creating a space of the commons, as in Public Smog, A People's Archive, and This is the Public Domain (2003-present), which goes against the generalised trend toward the privatisation of space that is a key logic of neoliberalism.11 Do you see your attempts as correlating with recent movements to occupy public (or private) space for radical anti-capitalist purpose, as with Occupy Wall Street? Are there differences as well? And how does this impulse relate to the artistic context in which you also operate, which is similarly conflicted by the forces of privatisation and radical attempts to reconstruct a relation to inclusive public experience?

AB: Yes, I support and have affinity in my work for movements that seek to reconstitute or articulate commons that have been lost or are in the process of being destroyed. This is the Public Domain and Public Smog, as projects rather than movements, are subject to the same range of critiques as other works that act to support, engage with, or enact politics, and share similar limits and risks of instrumentalisation.

TJD: You’ve spoken of artwork as providing a ‘pre-figurative space’, creating a demand that can be satisfied only later in time, as Walter Benjamin defined one of the foremost tasks of art. This seems to be a key to your work, which relates back to past utopian models of avant-garde practice, even though your work never seems escapist or detached from present political concerns, as past artistic models sometimes do. Is there a utopian element in your work?

AB: I do see some of my work as connected to the social satire in utopian writing. This is the Public Domain could be seen as most directly connected to past utopian models, although it is a real space, politically complex and troubled. Such is generally the case with claimed or attempted spaces of exteriority, and enmeshed with property regimes in Kern County, California, including the Alta Wind Energy Center.

TJD: Would you argue that artists have an ethical or political responsibility to address the environmental crisis?

AB: Climate change is a disorienting dilemma; a situation that pressures all others...

 

T.J. Demos is a critic and Reader in the Department of Art History, University College London. He recently guest edited a special issue of Third Text (No. 120, 2013) on the subject of ‘Contemporary Art and the Politics of Ecology’, and is currently at work on a book on the subject for Sternberg Press.

 

Notes

1 See Cormac Cullinan, Wild Law: A Manifesto for Earth Justice (White River Junction, Vt.: Chelsea Green, 2011); and Peter Burdon ed., Exploring Wild Law: The Philosophy of Earth Jurisprudence (Kent Town, South Australia: Wakefield Press, 2011).

2 See Amy Balkin, ‘Free Seas, Free Skies’, Disclosures (Published 2009, Accessed 14/10/2013, disclosuresproject.wordpress.com/disclosures-iv/amy-balkin).

3 China Miéville, Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2005), p.319; cited in Balkin (2009).

4 The defendants included: ExxonMobil, BP, BP America, BP Products, Chevron Corporation, Chevron USA, ConocoPhillips, Royal Dutch Shell, Shell Oil, Peabody Energy, AES Corporation, American Electric Power Company, American Electric Power Services Corporation, DTE Energy Company, Duke Energy, Dynegy Holdings, Edison International, MidAmerican Energy Holdings Company, Mirant Corporation, NRG Energy, Pinnacle West Capital Corporation, Reliant Energy, Southern Company, and Xcel Energy. See: ‘Climate Justice in Kivalina: Fighting climate change on the frontlines’, Center on Race, Poverty and the Environment (Published 2013, Accessed 16/10/2013, crpe-ej.org/crpe/index.php/campaigns/climate-justice/kivalina-ak); and ‘Native Village of Kivalina v. ExxonMobil’, Bloomberg BNA (Published 21/9/2012, Accessed 10/10/2013, op.bna.com/env.nsf/id/maln-8ycsny/$File/bob%27s%20story.pdf).

5 See: ‘Our Founders’, Center on Race, Poverty and the Environment (Published n.d., Accessed 2/10/2013, crpe-ej.org/crpe/index.php/about-us/who-we-are/our-founders).

6 See: ‘Contingent Movements Symposium’, Maldives Pavilion 55th, Venice Biennale (Published 27/9/2013, Accessed 29/9/2013, maldivespavilion.com/blog/contingent-movements-symposium).

7 See: 'Ana Taufe'ulungaki, ‘Safeguarding of Intangible Cultural Heritage’, Ministry of Information & Communications, Tonga (Published 30/3/2011, Accessed 20/9/2013, mic.gov.to/ministrydepartment/14-govt-ministries/moet/2318-dr-hon-ana-taufeulungaki-safeguarding-of-intangible-cultural-heritage).

8 For Altmaier’s response, see: tomorrowmorning.net/Brief%20Bundesministerium%20f.%20Umwelt%20Naturschutz%20etc.%2016.11.2012%20(2).pdf.

9 See Benjamin Morris, ‘Air Today, Gone Tomorrow: The Haar of Scotland and Local Atmosphere as Heritage Sites’, International Journal of Intangible Heritage, Vol. 8 (2013). Also see Lucia Allais' work on the early origins of UNESCO World Heritage as a quasi-colonial construct initiated at the 1931 Athens Conference by the League of Nations, one of the earliest intergovernmental organizations.

10 See Dana Kopel, ‘What Will Have Been: Interviews on A People’s Archive of Sinking and Melting’, Tomorrow Morning (Published 2013, Accessed 11/10/2013, tomorrowmorning.net/texts/What%20Will%20Have%20Been_Interviews%20on%20A%20Peoples%20Archive%20of%20Sinking%20and%20Melting_Dana%20Kopel.pdf).

11 On the relation of Balkin’s work to the financialisation of nature, see T.J. Demos, ‘The Post-Natural Condition: Art After Nature’, Artforum (April 2012), pp.191-197.