Notes on Territory

Tipping Points in International Law, Jean D'Aspremont, John Haskell, eds., Cambridge University Press, Forthcoming

Max Planck Private Law Research Paper No. 20/18

17 Pages Posted: 25 Nov 2020

See all articles by Ralf Michaels

Ralf Michaels

Max Planck Institute for Comparative and International Private Law

Abstract

Discussions about territoriality and deterritorialization regularly assume territory to be a mere object. The question is what is done with territory, but not what it is. Consequently, when we theorize, we mostly speak not of territory but of territoriality and its counterpart extraterritoriality, or of territorialization and its alleged counterpart deterritorialization. In order to be able to draw such distinctions meaningfully, we would of course have to have a concept of territory. Because we do not, territoriality and deterritorialization are unclear concepts, bound to create misunderstandings.
The assumption of territory as a mere fact conceals the degree to which territory is actually constructed. Territory is not merely “there,” to be appropriated by those who find it, to be transferred, occupied, seceded. Rather, territory is the result of specific techniques—agricultural techniques of land, geographical techniques of borders, and, most importantly for international law, legal techniques. Territory is both the object of legal regulations and its result: it is created by law, and it in turn creates law.
By shifting the conceptual boundaries of territory, we shift the boundaries between what needs special justification and what does not. But we do not change the nature of law as being an order of inclusion and exclusion.

Note: This pre-print is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, Cambridge University Press, in accordance with its Green Open Access Books Policy, Version 2.0.

Keywords: Territoriality, Legal geography, Sovereignty, International law

Suggested Citation

Michaels, Ralf, Notes on Territory. Tipping Points in International Law, Jean D'Aspremont, John Haskell, eds., Cambridge University Press, Forthcoming, Max Planck Private Law Research Paper No. 20/18, Available at SSRN: https://ssrn.com/abstract=3731554

Ralf Michaels (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, D-20148
Germany

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