Reconfiguring Territoriality in International Economic Law
Netherlands Yearbook of International Law 2016, (2017), Forthcoming
54 Pages Posted: 16 Jan 2017
Date Written: November 08, 2016
Recent scholarship in international law has studied the phenomenon of deterritorialization and, in this context, has framed territoriality and functionality as competing modes of organizing the global political order. In this article, we challenge this vision by exploring the hypothesis that territoriality and functionality, rather than mere substitutes or competitors, impart meaning to each other. To test this hypothesis, we identify different modes by which functionality and territoriality interact in the reconfiguration of the international legal space, and in particular in the trade and investment regimes.
In the context of international trade law, we show how territoriality is multiplied, and how it gives meaning to functionality at the intersection of the trade regime and regimes for the protection of health and environment. We further develop the idea of the emergence of techno-territoriality, where norms allegedly promoting global technocracy are being shaped by territoriality.
The analysis of the international investment regime engages with the threats that contractual clauses exert on territoriality in the context of investment operations, the significance of the territorial nexus requirement in the definition of investment, when intangible financial instruments are involved, as well as the ‘international-territoriality’ mode conveyed by the activities of sovereign investors abroad. We conclude by arguing that territoriality is not subsumed by functionality, but is rather undergoing a process of transformation into ‘non-modern’ territoriality: the reassertion of territoriality in investment and trade regimes, albeit in different forms, should be looked at as a positive development to keep alive the ‘public’ core of international law.
Keywords: Territoriality, Functionality, WTO law, International Investment Law, Techno-territoriality, Extraterritoriality, Stabilization clauses, Sovereign Investors
JEL Classification: K32, K33, K39
Suggested Citation: Suggested Citation