Territory as an Object, Territory as Socially Produced

Just a few short years ago, it seemed self-evident to many that state borders and territory were fading in significance, losing their place as core organizing principles in international relations and international law. In Chapter 2 of the book, Lythgoe helpfully identifies three sets of ideas used to describe this “de-territorialization.” The first posits that law is increasingly fragmented into issue-specific, “functional” legal regimes that operate globally or—depending upon the theorist—in sectorial regimes that overlay the spatial organization of states. The second set of theories relocates what has been understood as territorially based state power in other actors such as the European Union and sub-national units such as cities. The third set of theories focuses on cross-border or transnational activity and emphasizes that borders are increasingly porous as people, goods, and capital become more mobile. Lythgoe argues that all are built upon an inadequate understanding of territory so that none can explain what she calls “re-territorialization”—meaning that as functions or powers are shifted away from states and their territory, these ideas cannot explain where exactly the functions and powers go in spatial terms. All of the theories in effect, Lythgoe argues, describe a “move from the territorial to the non- or aterritorial” (p. 57), a process that implicitly suggests the end of spatial ordering. Lythgoe rejects that possibility, arguing instead that functions always “re-territorialize” but we lack an adequate understanding of this process because the “relevant spaces are not (yet) recognizable as legal spaces in the onto-theoretical lexicon of scholars” (p. 58). A primary objective of the book is to provide a new concept of territory for international law—a rebirth (p. 193)—one that allows us to better understand this re-territorialization.

The nuts and bolts of this re-think emerge slowly. Chapter 3 addresses—among other topics—the definition of a “concept” and how to deconstruct one. It also addresses traditional understandings of territory in international law and the various uncertainties that those understandings produce, such as their extension (or not) to air and maritime spaces. At their core, all of the traditional understandings posit territory as flat, contiguous state-space, which Lythgoe argues does not afford an appropriate framework for understanding re-territorialization and the attendant new patterns of global governance and power. Indeed, the reader learns early and often that treating territory as a flattened geographic place on a map, a portion of the Earth, an object, something physical—is all wrong. Wrong because this understanding is not an accurate view of how the world works, which instead involves fluid and changing spatial organizations of power exercised by various actors, state and non-state alike (pp. 52–53, 58–59, 71). Wrong because territory-as-object is an old-fashioned, outdated view that enlightened scholars from the humanities have long since discarded (pp.145–46). Wrong because this flattened view “naturalizes” the concept of territory (pp. 92–98), presents it as fixed and unchanging when it is not (pp. 29, 69), obscures its artificial character (p. 97), hides “its strategic appropriation and the underlying politics and geographies” (p. 185), and “disciplines the international legal gaze” so that it does not see “the diverse, multiple, and relational territories of actors relevant for international law” (p. 145).

Instead, territory should be understood as socially constructed, dynamic, and relational, as a form of space created through “lived social interactions” (pp. 18, 145). More specifically, as Chapter 4 explains, territory should be “thought of as a socially constituted space in relation to which control is exercised by states (and . . . many non-state actors)” (p. 146). Territory is “lived space” created by the exercise of power (p. 147). The exercise of power, which is central to the book's thesis, is described as “control.” Territories are made and remade as diverse actors, including individuals, exercise control over different functions and competencies in relation to their spaces (p. 149). Territory is not physical geography, but instead the space created as a result of particular practices that “inscrib[e] meaning onto that physical geography” (p. 155). This understanding allows for multiple actors to exercise different kinds of control relating to the same physical geography, thereby producing shifting and overlapping territories.

Control is, of course, already a mainstay of legal thinking about territory, sovereignty, and statehood. Lythgoe defends her proposal partly for this reason: it builds on ideas that are core to the discipline, a defense somewhat at odds with the book's general bid to leave the old ideas behind. The proffered test for control is generous and differs from others employed in international law: it “means the power to influence or discipline a space and what happens in it.” Thus, the control that produces territory need not be “effective control” and also includes many exercises of jurisdiction that we currently term “extraterritorial.” A government taxing an overseas actor is not acting “extraterritorially” in Lythgoe's vocabulary but is instead creating and producing territory in the form of control over an individual located in a particular place. The European Union's territory differs at times from the member states' territory; it “has a territory essential to how the organization organizes its activities and governs” (p. 231).

Territory as Control

Conceptualizing territory in terms of power and control is intriguing and challenging. Chapter 5 applies Lythgoe's approach to various aspects of international law, including sovereignty, statehood, jurisdiction, and non-state actors. Her approach allows us to “see” the spatial organization of power differently than we would starting from the traditional assumption that sovereign states have exclusive sovereign title over a fixed and flattened territory. We can “see” London in international law, for example, not just by piercing the veil of English territorial sovereignty, but instead as space that is part of many territories produced by strategic exercises of power by different actors—including various governments that tax people who live there, as well as other actors who exercise authority over money and people in London. (pp. 186–87, 202). We can abandon the “extra” in “extraterritoriality” because the “extra” is necessary only if states are perceived as acting in a restricted, exclusive physical location (pp. 205–10). But power is power, here or there.

In the same way, a particular place on the map is not the exclusive territory of any one state or other actor. For example, a military action authorized under Chapter VII of the UN Charter may occur within the physical geography associated with a state, but it is the “territory” of the United Nations Security Council for this specific relationship (p. 214). When Russia assumed many forms of control over Crimea, which had been part of Ukraine, Crimea became—to the extent of the power that Russia exercised over it—“Russian,” if you will, but that description does not mean that Russia's exercise of power over Crimea was legal, or exclusive. Russian power can be recognized for some purposes, but not others, eliminating the legal difficulties around all or nothing “territorial sovereignty,” in which recognizing Russian control and responsibility in one context might suggest that Russia has exclusive sovereign control over the space for all purposes. These ways of reconceptualizing are helpful. So, too, is Lythgoe's justified insistence that globalization has not led to a world of de-territorialized functions. She argues instead various forms of power, some of which have traditionally been understood as state power, are projected by new actors in new places, in a process of re-territorialization.

One might nonetheless ask whether the radical redefinition of territory on offer here is worth the attendant doctrinal upheaval merely to achieve a better descriptive lens on power. Lythgoe obliquely acknowledges that her reliance on “control” has its weaknesses, when she writes that “control” is not a “‘magic’ transcendental concept that solves all our problems” instead it has more “explanatory power” than other ideas (p. 158). One might just refer to spatial exercises of various forms of power to describe what Lythgoe wants us to see and leave “territory” more or less as it is. This is especially true because it is somewhat unclear what designating some forms of spatial control as producing “territory” means for legal rights and responsibilities in Lythgoe's approach. Yet it is surely correct to say that our conceptions of territory, foundational to international law, shape our “gaze” and our understandings of power in important ways. And to redefine sovereign or state power manifests in physical space, Lythgoe is right to focus on the concept of territory.

Territory as Political Control

Difficulties attend the book's effort to re-conceptualize territory as “socially produced space.” One might accept the important claim that state territory is not a natural fact or physical thing but is instead a socially created way of organizing space, without adopting Lythgoe's definition of territory as control or her argument about which kinds of activities result in the production of territory. The way the book tries to bring these ideas together is sometimes difficult to understand.

The book drives home that our actions as individuals and communities produce territory: our travel to work on a bus is a production of territory (Lythgoe's example), so is (perhaps) our visualization of a map of the erstwhile German Democratic Republic (pp. 150–51) (my example), as is any conduct that influences or disciplines a space. Territory can be constituted and re-constituted for seconds at time (p. 168) by actors other than states. Elsewhere, however, the book limits the concept of territory to the exercise of political or state-like power, rendering it far more familiar to international law. Indeed, some connection to government power seems important to much of what the book is trying to do. Yet it is distant from some examples, such as the reader's bus ride to work. The tension makes it difficult to understand parts of the argument.

Consider, for example, the claim that multinational corporations can have territory—at once a core part of the author's desire to expand territory to non-state actors, but also something that is not explained in any detail. Corporations produce territory if they have “control” meaning that they have ability to “influence or discipline a space and what happens within it” (p. 160). Multinational corporations might do any number of things that could qualify. They might own “private” property and control access to it, or operate a mine, or construct a private building with limited rights of entry or enter into employment contracts with individuals who work in that building, or draft a corporate code of conduct, or declare that they will not hire refugees. They could take these actions “at home” (i.e., in space that is generally associated with the country under whose laws they are incorporated), or they might do things elsewhere (in a space generally associated with a different country). Which of them creates a “territory?” Territory, we are repeatedly told, manifests by and for the exercise of power and must be de-coupled from the state, suggesting that all of these actions produce territory.

The more limited definitions offered in some places in the book, the ones that refer to the exercise of a “government function” (an undefined term), might lead to a different analysis. The specific examples of “control” given toward the end of the book suggest government-like control: they include “placing restrictions on people and activities such as the exclusion of refugees from jobs and social life” (p. 164) and the International Seabed Authority's control over the area as a part of a “legal bundle” (p. 235). Similarly, we are told that territory is “juridically produced,” a term and idea that is not explained (p. 147). Chapter 6, which offers a short conclusion to the book, discusses the exercise of “political control” over space (p. 250), a term also left undefined. And although territory is described in one place as produced through very brief actions with no real temporal threshold, elsewhere the book adopts a more limited understanding: to produce territory “control must be exercised on a continual basis” (p. 149), a restriction more consistent with traditional understandings of political or governmental power.

Applying these more limited definitions to corporations, perhaps if a government says that no one in the country can hire refugees, that constitutes and produces territory, but if a corporation says it will not hire refugees at one of its mines or announces that it is closing the mine (and firing the employees) that conduct is not sufficiently “political” or “government-like” to produce territory. From the lived experience of people—proffered in some places as the whole point—it is not clear why these distinctions matter. And perhaps they do not. But if a key move in the argument depends upon a prior understanding of “government function” or “political control” then some of the innovation seems to evaporate. Control also includes the ability to discipline a space, introducing further confusion, at least for this reader. The UN Security Council has in one sense the legal “ability” to authorize the use of force around the world, which therefore apparently constitutes its territory. That characterization has little to do with lived experiences of people in most places at most times, however.

In the end, it is unclear what exactly follows from designating something as “territory” rather than just saying that the corporation controls certain activities in space. As well, the various ways that the definitions of territory and control are repeated using different language in many places throughout the book leaves one to wonder whether the fine points of the definition of territory much matter, a thought that undercuts one of the book's central motivations: to provide a clearer understanding of territory.

Alternatives

The claim that territory is not a natural geographic fact but is instead a socially produced relationship is powerful and important. Stuart Elden's seminal work, The Birth of Territory (to which Lythgoe's title clearly refers), traces the emergence of territory through the history of Western political thought and practice. Territory, Elden's history shows, is just one way among many of organizing the relationship between power and place, one that emerges in the scientific revolution as the extension of the state's power (Elden's emphasis), and one that might include overlapping and changing assertions of sovereign and religious authority. The idea of distinct “nations” having “tightly bounded spaces” over which they exercise centralized and exclusive government authority, was not inevitable but instead historically produced.

Lythgoe explicitly draws on Elden's insights about the contingent and changing understandings of territory, and she borrows some of his language on power. Another scholar of international law, Jure Vidmar, similarly takes a version of Elden's ideas as his starting point in Territorial Status in International Law but develops them in an entirely different direction. Vidmar and Lythgoe's books diverge in both style and substance. Lythgoe's is an intellectually wide-ranging—if at times rather undisciplined and hard to follow—romp through critical philosophy's treatment of space generally, with many pages devoted to arguably ancillary ideas such as legal realism and deconstruction. Vidmar offers us nothing from Jacques Derrida or the French Marxist Henri Lefebvre, nor do we learn whether Vidmar is a pacifist, although Lythgoe declares herself one on page 216 in footnote 91, in an apparent attempt to show the reader that her theory of territory should not be understood as condoning Russian territorial aggression in Ukraine.

Vidmar is motivated to re-think territory in international law because the existing theories of statehood and territory leave us with a variety of liminal situations in which we speak of de facto or non-recognized states or illegal territorial arrangements, none of which have a clear legal status.Footnote ⁶ Vidmar accordingly offers a “theory of the international legal status of territories: a theory that does not fail in difficult or marginal examples.”Footnote ⁷ A territory is, for Vidmar, a “politically-created legal status established over a certain special area.” For both Lythgoe and Vidmar, territory is not a “natural” part of a state. States do not exist as a result of “having” territory, for Lythgoe because states create territory and thus exist prior to and separate from the exercise of power described as territory (p. 147), for Vidmar because statehood is a legal status conferred by other states through a political process, not a fact that follows from satisfaction of the “criteria” for statehood such as a defined territory.Footnote ⁸

The push to “see” territory as a spatial projection of power by both state and non-state actors motivates Lythgoe but not Vidmar. By defining territory as a “politically created legal status,” Vidmar means that states participate in a legal process that creates a specific legal status; states thus decide the legal status of spatial areas. A territory can have a legal status other than “statehood,” and that status can be established by treaty or by customary international law, following the conventional process for both. States in Vidmar's conception can still have “title” over territory, a concept rejected by Lythgoe as an essentializing objectification of the physical world; territory is “created and practiced, not owned” (p. 215). Much of Vidmar's important book is devoted to implications of his argument for doctrines of attribution, self-defense, self-determination and more. His most significant innovation is to understand territory as a legal status—of which statehood is one form—conferred by states through custom or treaty.Footnote ⁹