(De-)Constructing Territory in Public International Law

Legal imaginations of nineteenth century lawyers continue to shape today‘s understanding of territory in international law. The current edition of Oppenheim‘s International Law opens the chapter on territory with the following definition: “State territory is that defined portion of the globe which is subjected to the sovereignty of a state. A wandering tribe, although it has a government and is otherwise organised, is not a state until it has settled down in a territory of its own.“ This paper enquires into the function that imaginations of sedentariness and unsettledness played in legal doctrines on territory developed by German international lawyers in the nineteenth century. These imaginations were often encapsulated in the figure of the nomad. German international lawyers saw the figure of the nomad as the antipode to notions of territorial sovereignty and imaginations of sedentariness and unsettledness were often enmeshed with agricultural progress and notions of property rights.

The red thread running through literature is an assumption about international law‘s stato-centricity and a concern about territoriality. Yet it is a particular concept of territoriality and it is this that produces the beyond territory discourse. This paper asks: what assumptions are made about territory that powers exercised beyond or between territories float free of the highly specific territorialised international legal order. It argues an uncritical reliance on an outdated spatiality which determines these narratives. Phenomena not conforming to this territoriality must be aterritorial. The exercise shows the prevalence of this thinking and its role in mediating international law‘s operative concepts. Locked in this intellectual framework, discourse cannot explain contemporary spatial dynamics - it produces deterritorialization without reterritorialization. The hegemonic concept of territory ensures the territories of non-state actors are invisible to international legal thought.

Territorial jurisdiction today is no longer the protector of non-intervention and independence: it is used in an increasingly extended sense. The United States, the European Union and increasingly China project their power globally by extending the meanings of territoriality - while other states stick to mutually exclusive territoriality. In this presentation, I propose reformulations of non-intervention beyond territoriality. The minimalist project of reformulation aims for more detailed analysis of current state practice. Supply chain-based, market access-based, registration-based and other finer categories can provide a better picture of how states are regularizing extensions of territoriality. The maximalist project aims to sketch an ideal law of jurisdiction that revitalizes the domaine réservé, distinguishes domains of differentiation from domains of harmonization, and provides for jurisdictional venues of last resort.

As an inter-governmental organization, the United Nations is premised on the idea of the sovereign territorial state. This stems from the assumption that the territorial state and its institutions constitute the best possible way in which legal authority can legitimately be exercised over people. One of the UN‘s main activities throughout its history has been state-building in various forms. At the same time, the UN challenges the territorial sovereign state, as it promotes international norms that ought to apply domestically, and through law-making that involves many actors beyond states. The Secretary-General‘s recent report on “Our Common Agenda“ suggests at least implicitly two alternative sources of legitimacy: common goods and future generations‘ rights. I examine why the territorial state has long been viewed as the locus of law‘s legitimate authority and link recent theoretical debates on authority beyond the state to current reform efforts at the UN emphasizing common goods.

Given that territory is one of the constitutive elements of statehood, land obviously plays a significant role in international law. However, precisely because land is at the core of national sovereignty, land tenure governance (i.e., the system regulating access, use, and occupation of land, including domestic land management and land administration) is commonly considered to be under the exclusive supervision of domestic jurisdiction and not subject to international legal regulation. At the same time, it is well established that the protection of private property from interference by the state has been a driving force of international law. This paper asks about the significance of international and transnational private property interventions (often referred to as land tenure reforms) for the construction of territory in contemporary international law.