This chapter describes territorial conflicts among lords, parishes, cities and towns, and how they contributed to emerging notions of the territoriality of states. It surveys debates regarding both the expansion to new territories and the conservation of existing territories and considers how these debates operated both in Europe and in European overseas colonies. It analyses the writing of jurists as well as a plethora of practices that contemporaries pursued, which despite their obvious local reiterations, were mostly pan-European. Among other things, it covers the question of just war, taking possession of not yet occupied land, discovery, prescription, conservation of the status quo and the role of both conflicts and agreements, including agreements with indigenous peoples, natural law, the law of nations and of relations between territory and jurisdiction. To explain developments during the Renaissance, it observes a much longer time span that began in the Middle Ages and allowed for both slow and revolutionary transformations. It shows that developments in Europe were important, but as vital in both encouraging and empowering change was colonialism, which affected many peoples and territories across the world but also modified Europe in ways we have not yet completely understood.

This chapter is a survey of the legal languages used to govern territory, sovereignty and the right of a ruler within a polity. Debates were heavily dominated by feudal and private law-concepts. Sovereigns maintained the diversity of privileges in the territories ruled in the setting of a composite monarchy. Claims and titles could or could not entail consequences for sovereignty. Reservations and exceptions to full internal sovereignty were not uncommon. Succession quarrels (often causes of war), could be solved by treaty, often in conflict with domestic constitutional rules and principles. Mixed polities (Poland-Lithuania, Holy Roman Empire) offered a broad range of argumentative topoi to either confirm or combat overlordship. Internal German questions could quickly escalate to the field of the law of nations through the game of alliances and guarantees. Although republican forms of monarchy and republican oligarchies were on the decline in the seventeenth and eighteenth centuries, their legal agency was not contested. In extra-European dominions of European sovereigns, the chain of reasoning was significantly lighter, as feudal arguments rarely came into play. Conversely, the agency of subaltern actors in establishing boundaries, or the treatment of native Americans as either allies or subjects provide original avenues of research.

This chapter lingers on the very notion of territory itself as a spatial imaginary, a literary trope, and a political crucible for competing ideas of sovereignty. In particular, it examines how territory, or perhaps more precisely, territoriality, did not simply work at the behest of US empire but also served as an essential spatial register for working alongside and even against US territorial annexation, occupation, and colonization. Throughout the nineteenth century, the United States asserted an understanding of sovereignty that foregrounded dominance over a territory and its inhabitants. At the broadest scale, territory denoted the sovereign’s property (the United States), and sovereignty denoted control over territory. Settler-colonial notions of sovereignty and territory conflicted with Indigenous understandings of sovereignty that often foreground responsibility to human and other-than-human relatives within a shared space or territory rather than possession of property. This chapter’s three sections, “Terra Nullius,” “Indian Territory,” and “Black Territories,” each take up a concept of territoriality that profoundly influenced US colonial expansion at the expense of other narratives of placemaking. Each section details how narratives of territoriality forcefully shaped US politics and culture while also describing competing notions of placemaking that disrupt these dominant narratives.

In most scholarly accounts, borders are portrayed simply as thin, jurisdictional lines; they define where one sovereignty ends and a new one begins. Recently, scholars have shown that borders are increasingly becoming wide and zonal – an important advance in our understanding. In this chapter, however, it is suggested that even these accounts are insufficient to change our paradigm as they still rely on the state/territory/border triad as their baseline and see contemporary changes as deviations from this norm. In other words, while such work can generate shifts in our understanding of borders, they nonetheless perpetuate the border’s naturalness. To redress this problem, this chapter begins by defining the “Westphalian” border as it is conventionally understood – distinguishing two features, borders-as-authority and borders-as-control. Second, it looks at the development of modern bordering to locate when this “Westphalian” border starts to take shape. The chapter concludes with a reconceptualization – referred to as the Accordion Model – which captures the conditional and oscillating relationship between states, territories, and borders. The hope is that by doing so, we might chip away at the hegemonic hold that the linear border – and the state/territory/borders triad – has on our political imaginaries

The transnational movement of peoples across the globe is one of the most bitterly contested political issues of our times, eliciting populist anger against migrants and refugees. This public outcry has muffled, however, a more dramatic process: the contemporaneous reconfiguration of territory, rights, and jurisdiction. This chapter highlights the formation of “shifting borders” that enable states to create lawless zones as well as rightless subjects. It then explores a combination of juridical and democratic possibilities for resistance and claims-making in a world of shifting borders and cosmopolitanism without illusions.

The premise of this volume is that borders are shifting, and that as borders shift, rights and democratic legitimacy ought to shift with them. For good reasons, the focus of this discussion is on sovereign states and their borders. However, sovereign borders do not exhaust the types of boundaries that shape and circumscribe human freedom. In this chapter, the focus is on the private geographies that shape our lives. These private geographies – and here special economic zones are discussed – are both embedded in the sovereign states system and also help to consolidate its structure. Private geographies, which are characterized by private sources of capital and property-ownership, rely on public actors and institutions to thrive. Private economic enclaves also help funnel capital and trade rights around restrictive sovereign borders. These private geographies are of special interest because they reveal how states and capital cooperate in monopolizing land and carving up the earth, acting in ways that consolidate each other’s power. Therefore, private borders and public properties call into question the public–private divide and reveal how power over land is determined in the global age, often in ways that evade democratic control.

In the last decade, states have fixated on policing their borders beyond their territorial limits. This practice, which has been called “shifting borders,” undermines state legitimacy, because the latter depends on how states exercise their power, who they exercise it over, and also on where they exercise it. As the chapter shows, shifting borders generates a tension among rights, territory, and people, where it seems that we can have any two, but not all three. This chapter examines three responses to this tension. First, Sovereigntism seeks to stabilize the relation of people and territory. Second, Democratic Cosmopolitanism tolerates shifts in territory, as long as people and rights remain. Finally, the Watershed Model keeps borders in their place, but it accepts changes in the people, as it decouples democratic governance and rights from a particular national identity. It is argued that, in the long run, this model best handles the challenges in times of planetary crises, such as global poverty and climate change. For the Watershed Model, like the grass-roots movements of indigenous peoples and transnational migrant activists, can redefine territory, allow for human mobility, and resist state overreach in border control.

What is territoriality, if we consider it from a maritime, rather than landed perspective? And how should borders be reconsidered, if we assume that the nonsovereign space of world seas is constitutive of politics, rather than exceptional to it? To answer this question, this chapter adopts a processual approach to international legal theory and outlines a vast trajectory. Sources from antiquity display an imagination of maritime spaces as an exteriority in relations to politics. In the seventeenth and eighteenth centuries, classical international lawyers formulated an international law of the sea that sought global applicability. This was what is called here “the first internalization” of the sea. A second internalization is currently underway, in which a central tenet of the first, freedom of movement at sea, is now being questioned. It is argued in this chapter that if we are to understand territoriality, we must reject the premise of universal territoriality and understand it (also) from the position of nonterritoriality which is offered to us by the sea. In other words, the two internalizations are crucial for a processual understanding of territoriality. The chapter concludes with reflections on how traces of exteriority, beyond both internalizations, can be utilized for the purpose of political action.

This chapter probes the ontological foundations of territorial sovereignty by tracing its normative logic to two diverging conceptions of sovereign authority in Roman law: dominium and imperium. While the dominium-based perspective ties the legitimacy of territorial sovereignty to prototypical forms of precivil private property association, from an imperium-based viewpoint, territorial sovereignty entails only sovereign jurisdiction over persons within a given spatial domain. Tracing these viewpoints through their early modern uptake by Immanuel Kant, John Locke, and Thomas Hobbes, the chapter points to a key normative disjunction – namely, whether territorial sovereignty is legitimated by the facticity of precivil object acquisition or by associational bonds between human beings unconstrained by claim rights over given segments of land, water, and air. The analysis highlights that contemporary questions on the limits of sovereign authority – including on the “right to exclude” and on the legitimacy of the extraterritorial exercise of sovereign power – stem from a normative disjunction in the very idea of territorial sovereignty. The chapter argues that the moral-ethical dilemma of inclusion in a bordered world is profoundly imbricated with the ecological-ontological question of how we imagine our collective selves to be coconstituted with the land, water, and air around us.

“The evil of the Argentine Republic is its extension”: Domingo Faustino Sarmiento´s famous admonition in Facundo (1845) was not only a program for the modernization of Argentina but a figurative horizon for the literary genre that was going to critically analyze that very modernization until the mid-twentieth century: the “national character essay.” This genre had analogous developments in many parts of Latin America, but did not establish the link between territory and national identity as strongly as it did in Argentina. In the century that leads from Sarmiento to Ezequiel Martínez Estrada the genre displays a series of literary resources that seek to take the geographical configuration of the country as a measure of its people’s soul. This can be seen both in the invention of a physical sphere of the nation to set the stage for his political drama (Sarmiento) and in the metaphorization of the map as the nation’s body (Martínez Estrada). This corpus is analyzed here in relation to real and imaginary geographies that produced it and were produced by it.

The introductory chapter establishes the central questions, the rationale and structure of the monograph noting that it is concerned with the impact of unresolved conflict and contestation on the effectiveness of Europe’s human rights protection architecture within the framework of the Council of Europe. It also highlights several limits, such as the European focus and the deliberate decision not to seek to advance any reform proposals for the European Court of Human Rights Article 1 jurisprudence. It also engages, and dismisses, the potential critique of human rights imperialism.

This chapter gets to the heart of why the disciplinary imagination of international law is only able to see deterritorialisation without reterritorialisation, by excavating the content of the orthodox concept(s) of territory and scrutinising the spatial assumptions. For it is how territory is understood that forces the production of aterritorial functionalist account of law. The chapter reviews the standard definition(s) of territory before deconstructing the characteristics and qualities of the concept of territory. These include: that territory is only states’; that territory is imagined in a two-dimensional, flat, jigsaw-like form; that the physical referents are analytically prioritised over the social; that territory tends to be imagined as homogeneous, uniform, and contiguous ; that territory is bound by a particular technology and representation of borders; and that territories are relatively static. The final sections delve into the signification of territory and outline five different uses for territory in the discourse, before exploring how territory has mediated legal theoretical understandings of sovereignty.

The introductory chapter outlines the need for a rethink of territory. Beneath the surface of international and transnational discourses about globalisation and global governance is a conceptual and theoretical indeterminacy deriving from the, often unperceived, conflicting nature of the spaces of globalisation and the spaces of sovereignty. Where global law and governance are discussed, the old statocentric conceptions of spatiality provide the governing model, dominating such that if there is no state-territory, it is asumed there is no territory at all. There is tension between theories of a system with an overly determined spatial logic to ones without much account of space. There is little discussion about where functions go nor of the logics of the spaces in which they are exercised. The spaces of reterritorialisation are missing. As a result, functions exercised ‘beyond’ state territories appear to ‘float free’ of the highly specific territorialised legal order. Many theories cannot account for reterritorialisation because the territories of non-state actors are invisible to international legal thought because its orthodox spatial imaginary only makes visible state spaces.

This chapter turns to how the concept of territory might be reimagined, exploring how the concept of territory might be rethought of as the product of social relations. It offers a way for international law as a discipline to differently conceptualise territory, drawing on insights from (critical) spatial theorists about space to ‘update’ the discipline’s onto-theoretical approach to conceptualising territory. These insights allow us to rethink the concept of territory and emancipate international law’s spatial imaginary, by developing a legal theoretical understanding of control and authority that better reflects contemporary governance, law-making, and regulatory practices, rather than one limited to a twentieth-century state-centric international legal positivism. As a result, it also offers insights that enable the better observation of the relationship between power, law, and space, making sense of the competing state and non-state institutions and their territories ‘physically’ overlapping one another.