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SPATIALIZING INTERNATIONAL LAW: A LEGAL GEOGRAPHY APPROACH

DANIELA PALACIO-RODRIGUEZ

Lawyer and Anthropologist – Universidad de Los Andes

Supervisor

JUAN MANUEL AMAYA CASTRO

Associate Professor

Law School – Universidad de Los Andes

UNIVERSIDAD DE LOS ANDES

MASTER IN INTERNATIONAL LAW

LAW SCHOOL

November 2020

Bogotá D.C, Colombia

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SPATIALIZING INTERNATIONAL LAW: A LEGAL GEOGRAPHY APPROACH

Abstract

There has been a constant call to incorporate international law to the current analysis

been developed in the lines of inquiry of legal geography (Braverman et al., 2014).

This call for integration of international law wants to make visible the specificities that

it acquires when operating in international o transnational spheres, that are often

obscured by the emphasis that legal geography makes on Law within the States

(Delaney, 2017). The incorporation of international law has been understood as a

great opportunity to revitalize legal geography, it could act as a hinge to incorporate

new questions about the geographical imagination of the field and new critical

approaches towards it. This article answers the call for the incorporation of

International Law to Legal Geography by ‘mapping’ the current efforts to spatialize

the field and proposing the use of geographical concepts that upgrade this work.

Keywords: International Law, Legal Geography, Geographical imagination, Law &

Geography

Resumen

El llamado por la incorporación del derecho internacional a las preguntas propias de

la geografía legal ha sido constante dentro de las perspectivas críticas de estas

líneas de investigación (Braverman et al., 2014). Esta invitación busca visibilizar las

especificidades del derecho cuando opera en las dimensiones internacionales o

transnacionales, que se han visto opacadas por el énfasis que ha tenido la geografía

legal en la operación del derecho al interior de los Estados (Delaney, 2017). La

apertura hacia el derecho internacional es de gran importancia para la revitalización

de la geografía legal, al actuar como una bisagra para posicionar preguntas sobre

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la imaginación legal de este campo de conocimiento y las perspectivas críticas que

han surgido a su alrededor. El presente texto busca responder a la invitación

anteriormente descrita, ‘mapeando’ los esfuerzos por espacializar el Derecho

Internacional y proponiendo el uso de conceptos geográficos que permitan

enriquecer dicha tarea.

Palabras clave: Derecho internacional, geografía legal, imaginación geográfica,

Derecho & Geografía

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TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................. 5

II. ON LAW AND GEOGRAPHY ........................................................................... 6

A. The early perspectives on Law and Geography: Regional Legal Studies and

Impact Analysis .................................................................................................... 7

B. The emergence and consolidation of Legal Geography .............................. 10

i. The cross-disciplinary encounter in Legal Geography.............................. 11

ii. The interdisciplinary engagement ............................................................ 12

iii. The trans/post-disciplinary scholarship .................................................... 14

C. New horizons in legal geography ............................................................. 16

III. LEGAL GEOGRAPHY & INTERNATIONAL LAW ....................................... 18

i) Geographical imagination of International Law: The Westphalian state

system and space as a ‘container’ .................................................................. 18

ii) Advancing efforts: Research in legal geography and international law .... 22

IV. FURTHER RESEARCH: TIME-SPACE COMPRESSION, PLACE AND THE

QUESTION OF METHODOLODY ......................................................................... 26

V. CONCLUSIONS ............................................................................................. 28

VI. BIBLIOGRAPHY .......................................................................................... 29

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I. INTRODUCTION

The interaction between law and geography has been a common concern along the

20th century. Schools of thought like the Regional Legal Studies or the School of

Impact Analysis were the first to pose a question about the ways in which space and

law affect each other. However, the approaches posed by this schools of thought

were very limited. Both were based on formalist and positivist approaches towards

geography and law, and that stopped them from engaging in a meaningful

conversation in which both disciplines are deemed to be taken seriously.

The second half of the 20th century experienced a revival of the concerns about the

dynamics between law and geography. This revival was preceded by the

development of anti-formalist and anti-positivist school of thought in both in law and

geography. In this context, the first seeds of legal geography were planted, posing

questions regarding the interactions between both disciplines with an import/export

model in mind. It was not until the 1980s and 1990s that legal geography as the

interdisciplinary corpus that we know today took form. Nowadays, legal geography

is going through a period of reflexivity and self-critic. It has recognized the fact that

legal geography set a research agenda that emphasized certain legal and spatial

experiences. Common law and urban contexts in the Global Northwest were highly

favoured. But research projects in legal geography are being developed in other

latitudes, while addressing other legal concerns and spatial experiences.

One of the emergent forms of legal geography is the one concerned with

international law. The call for integration of international law to legal geography was

constant, and sought to make visible the specificities that it acquires when operating

in international or transnational spheres, and that are often obscured by the

emphasis that legal geography makes on Law within the States (Delaney, 2017).

The incorporation of international law has also been understood as a great

opportunity to revitalize legal geography, it could act as a hinge to incorporate new

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questions about the geographical imagination of the field and new critical

approaches towards it. However, international legal scholars were apprehensive

among engaging in this exchange since –as we will show later in this text—

international law is built upon a geographical imagination that conceives space as a

static, ahistorical, and apolitical container. Still, a few international legal scholars

challenge this geographical imagination through the development of research

projects that engage in a critical approach of the spatial conditions needed for the

operation of international law, and the spaces that international law constantly

enacts.

This article answers the call for the incorporation of International Law to Legal

Geography by ‘mapping’ the current efforts to spatialize the field and proposing the

use of geographical concepts that upgrade this work. To do this, I will be analysing

three main points. First, the development of different currents of law and geography

since the early 20th century. By doing this, it is possible to build a background

analysis on legal geography. Then, I will analyse the different ways in which law and

geography have gone through different stages of interaction, going from a cross-

disciplinary method to an interdisciplinary interaction and currently presenting a

trans/post-disciplinary approach. This sets the base for exploring new challenges

and proposal upon the current interaction between these two disciplines. Finally, I

will explore different approaches that allow a solution path for the problem in

question.

II. ON LAW AND GEOGRAPHY

The interactions between law and geography are not a new subject of interest for

both legal and geographical scholarship. However, the questions surrounding these

interactions, the methodological tools to approach them, and the political

implications they carry have changed through time. In this section I will analyse three

of the paradigms regarding Law and Geography: i) the early perspectives embodied

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in Regional Legal Studies and Impact Analysis, ii) the current paradigm of legal

geography, and iii) the expanding spaces that have been identified within legal

geography as a trans/post-disciplinary line of inquiry.

A. The early perspectives on Law and Geography: Regional Legal Studies

and Impact Analysis

The idea that geographical factors interact with law and the legal systems is not new

to legal theorists. Comparative legal studies and the sociology of law have been

were two of the first schools of thought that were concerned with the dynamics

between law and geography (Economides et al., 1986, p. 163). One of the first to

emphasize the relation between law and geography was Montesquieu, who showed

a clear r concern with the impact of climate on the development and configuration of

legal systems (1748, Chapters XIII–XVIII). This concern maintained itself during the

20th century, when early comparativists and sociologists of law –such as John H.

Wigmore, Eugin Ehrlich, and Nicholas Timasheff—considered space as a variable

to be considered when trying to explain legal variation, even getting to propose the

use of geographic methods over ethnology or legal history to analyse these

variations (Economides et al., 1986, p. 164). These approaches were furthered with

the works of René David and his pioneer work on legal cultures, that were

characterized by a non-deterministic approach (Economides et al., 1986, p. 165).

Concepts such as “geojurisprudence” –that is concerned with the distribution of laws,

legal systems and land (Easterly III, 1977, p. 210)— also came forward within these

approaches, but it did not go far beyond the insights proposed by René David as it

focus: “…almost exclusively on mapping the global distribution of legal systems

without attempting to produce an ecology of law which could clarify the processes

by which law interacts with the physical and human environment” (Economides et

al., 1986, p. 165).

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The aforementioned efforts are part of the Regional Studies of Law, that are primarily

concerned with describing and explaining the diversity of legal systems across

regions based on the geographical differences among them (Nicholas Blomley &

Labove, 2015, p. 474). Regional Studies of Law were an early effort to overcome the

divide among geography and law by trying to incorporate a geographical gaze into

the analysis of legal operations. The incorporation of legal perspectives to

geographical analysis was integrated through the development and popularization

of Impact Analysis. This approach was first proposed by Whittlesey (1935) when he

called for the exploration of the: “cultural impress of effective central authority upon

the landscape” (p. 97). Whittlesey proposed the study of phenomenon such as the

expressions of security, boundaries, the expressions of governmental activity and

even the imposition of tariffs, as they are: “phenomena engendered by political

forces [that] should have a recognized place as elements in the geographic structure

of every region” (1935, p. 97). Impact Analysis is further defined by Pue (1991) as a

line of research that is concerned with:

The actual effects of legislation “on the ground” […] and compared with the

intent of legislators. Geographers seek out discrepancies, and either suggest

new legal approaches to known problems or identify previously unrecognized

problem areas where legal intervention seems socially or environmentally

warranted (p. 84).

Impact analysis was a highly influential force in the understating of the spatial

impacts regarding the law of the sea, inter-state boundary demarcation,

environmental protection, resource exploitation, agriculture, planning, and the

provision of legal services (Pue, 1991, p. 84). Regional Studies of Law were also of

great importance in the development of key concepts in Comparative Law, such as

that of legal families, and were also a vital tool to visualize the diversity of law and

the diverse variables –including spatial ones—that affect these differences (Nicholas

Blomley & Labove, 2015, p. 474). However, both of these approaches operated on

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a limited account of the legal and geographical concepts and theories they invoked,

and also of the way in which they interrelate with each other (Nicholas Blomley &

Labove, 2015, p. 475). According to Clark (1989), these early perspectives on the

dynamics between law and geography emphasis are:

…on spatial form, not process. In this setting the geography of law simply

describes the landscape in terms of the impacts of laws. Geography is a

passive stage on which laws, like other public policies, are distributed. Not only

is geography passive, laws are assumed little different from policies; law is just

a means of policy implementation (pp. 343-344).

During the 20th century, the perspectives on the interactions between law and

geography were influenced by the emergence of non-formalist and critical

approaches in both disciplines. In the 60s and 70s, legal anti-formalist theories

began to emerge. Contrary to their formalist counterpart, anti-formalism understands

law as social construction that is mobile, historical, and political. Anti-formalist

theories also are characterized by the challenge they present to the presumption of

law as a closed, autonomous, and coherent body of knowledge (Timm Hidalgo,

2010). Geography experienced a similar wave of new theorists that challenged the

positivist paradigm that was prevalent until the 1970s, emphasizing the relation

between society and space, and questioning the production process of the later

(Lefebvre, 1974). Radical geographers then coined the aphorism: “Space is a social

construct”, that is to say that space is: “…constituted through social relations and

material social practices” (Massey, 1993, p. 143). Geographers took a step forward,

and in the 1980s they established that: “the social is spatially constructed too, and

that makes a difference” (Massey, 1993, p. 144). These new perspectives on space

are best described by Henri Lefebvre on his work “The Production of Space”, where

he argues that:

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Is it conceivable that the exercise of hegemony might leave space untouched?

Could space be nothing more than the passive locus of social relations, the

milieu in which their combination takes on body, or the aggregate of the

procedures employed in their removal? The answer must be no. Later on I shall

demonstrate active –the operational or instrumental—role of space, as

knowledge and action, in the existing mode of production. (Lefebvre, 1974, p.

11)

Both the constructivist perspectives on geography and the anti-formalists

approaches in law permeated the concerns relating the dynamics between law and

geography. As such, a new line of inquiry emerged during the late 1980s and early

1990s, that was denominated as Legal Geography. This new line of inquiry will be

analysed in the following section.

B. The emergence and consolidation of Legal Geography

Legal geography is a new line of inquiry. According to Blomley (2003; 2015) and

Delaney (2015), before the 1990s “legal geography” didn’t exist as a line of inquiry

within legal nor geographical scholarship. In spite of the existence of a number of

articles that concerned themselves with law and geography, it was not until the

establishment of the “Legal Geographies Series” in Urban Geography in 1993 that

the approach got an institutional recognition (Forest, 2017, p. 8). In spite of the

aforementioned effort to institutionalize legal geography, it is still defined as a truly

interdisciplinary intellectual project that studies the interconnections and reciprocal

constructions between law and spatiality (Braverman et al., 2014). According to

Blomley and Labove (2015): “Essentially, legal geographers productively brought

together parallel retheorizations of law and space” (p. 475). As mentioned before,

this was possible thanks to the internal critiques of the core concepts of law and

geography previously described. As Blomley establishes (2003):

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Both critical legal studies and critical geography began interrogating the

categories at the centre of their disciplines - law in legal studies, space in

geography - and contesting their respective closure. […] Law and space are

thus cast as relational, acquiring meaning through social action, rather than

objective categories that operate prior to social life. Both critical lawyers and

critical geographer have rejected legal science and spatial science,

respectively, concentrating on the political significance of law and space, both

within their disciplines and within wider social life. As a result, not only does the

gap between law and geography become less tenable, but both law and space

begin to appear a lot more important and interesting. The very existence of a

critical law and geography, in this sense, is nothing short of revolutionary (p.

6).

The new-found closeness between law and geography led to the development of a

body of work that moved beyond the early concerns about the interaction of space

and law towards a more relational approach. However, these new approaches take

diverse forms. Braverman et al. (2014) have identified three modes that have been

present in legal geography: i) the cross-disciplinary encounter, ii) the interdisciplinary

engagements, and iii) the trans/post-disciplinary scholarship.

i. The cross-disciplinary encounter in Legal Geography

The first works that could be classified as “legal geography” –either by the self-

recognition of the authors as legal geographers or due to their importance for the

development of the line of inquiry—are still focused on applying one body of

knowledge to the other, without engaging in an interdisciplinary conversation.

Braverman et al (2014) describe this first mode of legal geography as a “cross-

disciplinary encounter”, where law has discovered space without encountering

geography, and geographers understand law as a given without concern for the

debates within legal scholarship. As such, the cross-disciplinary openness of these

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works on legal geography –or the lack of it—is regarded as an exercise of

import/export dynamics, since:

Given its closure, law vigorously polices knowledge, with a suspicion to that

deemed outside. External influences, such as geography are thus admitted - if

they are admitted at all - on law's terms. Geography, conversely, tends to buy

into this view of law. Law is something that only Lawyers do. It is an arcane,

complicated, forbidding pursuit. It's also something that happens somewhere

else. To that extent, not only are geographers not qualified to 'do' law, there's

not much point. When geographers do acknowledge law, there's a tendency to

treat it in rather narrow terms (N. Blomley, 2003, p. 4)

These approaches were challenged by a group of scholars that were committed to

a strong an explicit search for interdisciplinarity among both Law and Geography,

that resulted in the emergence of the second mode of legal geography.

ii. The interdisciplinary engagement

As mentioned before, interdisciplinarity is a keystone on the development of works

within legal geography since the 1980s. The openness towards interdisciplinarity –

according to Braverman et al. (2014)—was propelled by the appearance of the

school of Critical Legal Studies, that not only challenged formalist views on Law, but

also the functionalist ones by incorporating radical questions about power.

Questions over power brought legal scholar and critical geographers closer, as they

began to read the same social theorists and to pose similar concerns (Braverman et

al., 2014; Forest, 2017). These concerns were expressed in vital works for legal

geography such as Clark’s “Judges and the Cities: Interpreting Local Autonomy”,

Blomley’s “Law, Space, and Geographies of Power”, or Delaney’s “Race, Place, and

the Law: 1836–1948”. As Forest (2017) establishes, these works have in common:

“a concern with social, economic, and political inequality and seek to demonstrate

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how legal institutions, conventions, and practices reinforce hierarchical social

relationships” (p. 8). According to Delaney (2016), these works:

…take us into the workshops where space, law and (in)justice are the means

of the co-production of each other. They show us, often in granular detail, how

unjust geographies are made and potentially un-made. But it is hardly the case

that the relationship between changing law, reconfiguring space and

ameliorating injustice is linear or direct. Law, geography, politics, power, and

their dynamic inter-weavings are much more complicated. Legal geography,

then, is also good for discerning these complexities, disconnections, and

reversals (p. 268).

These publications also have in common the adoption of the “co-constitutive”

approach as the leitmotiv of legal geography. This implies taking both law and

geography as serious research subjects that are meant to be understood in their

own terms, and not just importing/exporting what seems relevant about each

discipline. According to Blomley et al (2001) these approach is materialized: “by

reading the legal in terms of the spatial and the spatial in terms of the legal, our

understanding of both “space” and “law” may be changed” (p. xvii). It was also this

mode that established an agenda of interest for legal geography: common law,

national legal systems, urban contexts, and locations in the Global Northwest were

–and still are—prevalent in legal geography as a scholarship.

However, increasing work has been devoted to research projects that move out of

the traditional questions present in this scholarship and that come from diverse

places around the globe. As such, it is now clear that there are multiple legal

geographies and multiple expressions of them. Growing work has been documented

in places such as Israel (Braverman, 2008, 2009b, 2014; Kedar, 2014), Australia

(Bartel et al., 2013) and Latin America (Amaya-Castro & Palacio-Rodríguez, 2019;

Azuela & Meneses-Reyes, 2014; Castro Cristancho & Buchely Ibarra, n.d., 2016;

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Fleischer & Marín, n.d.; Fleischer & Sanabria, 2020; Montoya, 2019; Olarte-Olarte &

Lara-Veloza, 2018). Furthermore, legal geography developed a reflexive and self-

critical approach that recognized that sometime interdisciplinarity is not enough, and

that there are occasions when trans/post-disciplinary perspectives are needed.

iii. The trans/post-disciplinary scholarship

Legal geography has proven to be a line of inquiry that is interesting for scholar

beyond the realms of law and geography. Disciplines such as history, political

science, and sociology have engaged and contributed to the lines of inquiry of legal

geography, even broadening its reach to interests such as land tenure, democracy,

identity, labour relations and the structuration of organizations (Braverman et al.,

2014, p. 10). However, the “third field” that has had the strongest engagement with

legal geography –both theoretically and methodologically—is cultural anthropology.

As established by Braverman et al (2014):

Anthropology has long been concerned with the themes of territory,

boundaries, place, and landscape as these bear on questions of culture and,

in this sense, it is inherently geographical. Law has been present in cultural

anthropology since its founding (Benda-Beckmann and Strijbosch 1986;

Darian-Smith 2007; Donovan 2008; S. F. Moore 2005). […] Interest has

increased in recent years as anthropologists have taken up topics such as

globalization, mobility, and displacement, and as they have expanded their

scrutiny to include “insider” and “para” ethnographies of Western cultures

(p.10)

Anthropologists have also engaged with law since the emergence of the discipline.

One of the most prevalent lines of work within legal anthropology corresponds to

legal pluralism. According to Fuller (1994), legal pluralism has demonstrated that:

“…‘traditional' law was constructed, partly through the dialectical relation with state

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law, during the colonial period, and secondly, that this fact is crucial for the analysis

of law, as a plural phenomenon, in post-colonial countries” (p. 10). When engaging

with legal geography, legal pluralism scholars have to apply a spatial perspective to

Fuller’s affirmation: “Legal pluralism scholars have come to realize that how the

spatiality of law operates in the West has much relevance to non-Western, nonstate,

and especially colonial contexts” (Braverman et al., 2014, p. 10).The works of Franz

von Benda-Beckmann and Keebet von Benda-Beckmann have proven to be

fundamental texts to understand the spatio-legal dynamics of legal pluralism and the

complexities they pose. According to Keebet von Benda-Beckmann (2009):

Under plural legal conditions, often a result of colonial rule, diverse and often

contradictory notions of spaces and boundaries and their legal relevance come

to co-exist. The ways in which physical spaces, boundaries, or borderlands are

conceived and made legally relevant varies considerably within and across

legal orders. Relations between space and social organization, the temporality

of constructions of space and place, the scale on which they operate, and the

political and symbolic loading and moral connotations pertaining to specific

spaces are important variables. Thus multiple legal constructions of space

open up multiple arenas for the exercise of political authority and for the

localization of rights and obligations – as well as for the creation of social

relationships and institutions that are characterized by different degrees of

abstraction, divergent temporalities, and differing moral connotations (p. 266).

Even when legal pluralism is an important contribution from cultural anthropology

towards legal geography, it is not the only one. Two vital contributions can be seen

in the work of Irus Braverman, the incorporation of more than human legalities and

the use of novel ethnographical methodologies. Braverman’s work has explored the

legal geography of trees and borders in Palestine/Israel (2008, 2009b), of restrooms

(2009a), and even of spaces such as zoos (2012). She also has showcased the role

of the dynamics of visibility and invisibility in legal geography:

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The taken for granted aspects of spatial design, I claim here, render it a useful

technology for promoting ideological projects. It is through their enactment in

space that technologies of power are hidden. Their enhanced visibility, in other

words, is precisely that which renders spatial technologies invisible

(Braverman, 2011, p. 175)

Regarding methodology, Braverman (2014) is one of the scholars that makes an

invitation to be more reflexive about methodology within legal geography. This, as a

more conscious approach to methodologies would widely expand the diversity of

methods and the interdisciplinarity of the project. Braverman’s work has itself

incorporate diverse methodological perspectives through the exploration of the role

of vision in legal geography (2011) and the use of ethnographic tools (2014), which

has allowed to expand legal geography’s lines of inquiry through the use of

anthropological concepts such as studying-up, multi-situated ethnographies, and

para-ethnographies.

The multiplicity of theories and methodologies that have been incorporated through

trans/post-disciplinary research projects have promoted legal geographers to

explores topics such as the role of emotion in the spatio-legal construction of

experiences (Delaney, 2014), the role of the body and gender in the constitutive

processes of law and space (Delaney, 2001), among others. Even so, legal

geographers have identified opportunities that can expand the horizons of the lines

of inquiry even more.

C. New horizons in legal geography

The arise of diverse legal geographies and the effort to engage in a trans/post-

disciplinary scholarship has put in the front view multiple opportunities to expand the

lines of work that are concerned with the interplay between law and space, and to

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present a critical and reflexive approach to the current lines of thought. One of the

main lines of expansion proposed has been towards a more nuanced understanding

of power, as a wide-lens conception of the legal world includes a considerable

diversity on the forms that power takes (Braverman et al., 2014). The incorporation

of perspectives sensitive to the flexibility, variability and diversity of power might

prove to be a vital tool to showcase the particularities of power and how it relates to

law and space. Legal geographers have also been compelled to include sensitive

perspectives towards the temporalities of space and law (Braverman et al., 2014).

As Valverde (2014) establishes, an approach to space that doesn’t reinforce the

fallacy in which time and space are treated as abstract and separate entities is a

growing need in the scholarship of law and geography. The space/time division

facilitates the reification and black-boxing of spatial processes, while marginalizing

temporalities and its effects for spatio-legal reflections (F. Von Benda-Beckmann &

Von Benda-Beckmann, 2014).

The expansion of legal geography has also moved towards critical conceptions of

both law and basic geographical notions. Relational perspectives regarding space

and place have come to take the front on the geographical debates (Sunley, 2008;

Jones, 2009). This movement comes hand in hand with the call to consider space

as intrinsically related to temporalities, as scholars like Doreen Massey (1989, 1993),

Nicholas Blomley (1994), Antonio Azuela (2014), Mariana Valverde (2015), Franz

von Benda-Beckmann (2014) and Keebet von Benda-Beckmann (2009) –among

others—incorporate this temporalities into their relational perspectives. Law has

experienced a similar moment. Even when the Critical Legal Studies have been

recognized by their contributions to various approaches to socio-legal studies and to

the conceptualizations around law, it seems necessary to integrate other critical

approaches. As Critical Legal Studies have had an emphasis on Anglo-American

common law, that is the common notion of law that has been driving legal geography.

However, other forms of legality –including non-Western and non-formal ones—

remain of great importance to revitalize legal geography, as well as the incorporation

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of discussion regarding international law and global legal systems (Braverman et al.,

2014).

The last invitation –to incorporate the discussion regarding international law—seems

especially interesting to me. Even when international law is filled with geographical

metaphors and can only operate on the geographical assumption of the existence of

a ‘national’ and an ‘international’ realm, there has been little development on legal

geography that is related to international law and its scholarship. The following

section will analyse the existing body of work that regards international law through

a geographical lens.

III. LEGAL GEOGRAPHY & INTERNATIONAL LAW

The engagement between legal geography and international law could be a great

way to address the current anxieties that exists around the changes that international

legal scholarship has experienced. Globalization is one the main causes behind

these anxieties, and even when critical approaches have been developed to address

its effects on international law, little research that incorporated a geographical

perspective has been produced. This, I would argue, due to an underlying

conception of space as a ‘container’ build upon the geographical preconditions for

the emergence of the Westphalian state system. To do so, this section will study: i)

the spatial understanding underlying the geographical imagination of international

law, and ii) the research efforts that have been develop to create a conversation

between legal geography and international law.

i) Geographical imagination of International Law: The Westphalian state

system and space as a ‘container’

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The international character of international law has been a constant concern for its

practitioners and scholars. However, the question about the ‘international’ character

of international law is often really a question about its universality. Both the works of

Taylor Gaubatz & MacArthur (2001) and of Anthea Roberts (2018) –although quite

sophisticated in their concern with the diversity within International Law in spite of its

aspirations for universality—address the international not as an space, but as an

equivalent for universality. As Buss (2005) establishes: “…within the international

legal academy in particular, there is a sense that we know what we mean by the

international and it is an otherwise trouble-free, neutral space…” (p. 77).

The understanding of the ‘international’ as a ‘neutral’ space is common even among

the scholars that are concerned with the geography of international law. The

prevalence of the Westphalian state system in the geographical imagination of

international law has everything to do with this understanding of the space.

According to Coggins (2009), the Westphalian state system is based upon the idea

of an international society comprising of sovereign states , in which the separation

of the domestic and international spheres is a must. This, as: “states may not

legitimately intervene in the domestic affairs of another, whether in the pursuit of self‐

interest or by appeal to a higher notion of sovereignty” (Coggins, 2009). The

conditions established by the Westphalian model promotes a geographic model for

international law that is highly based on the concepts of verticality and

encompassment described by Ferguson & Gupta (2008):

Two images come together in popular and academic discourses on the state:

those of verticality and encompassment. Verticality refers to the central and

pervasive idea of the state as an institution somehow "above" civil society,

community, and family. Thus, state planning is inherently "top down" and state

actions are efforts to manipulate and plan "from above”, while "the grassroots"

contrasts with the state precisely in that it is "below," closer to the ground, more

authentic, and more "rooted." The second image is that of encompassment:

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Here the state (conceptually fused with the nation) is located within an ever-

widening series of circles that begins with family and local community and ends

with the system of nation-states. This is a profoundly consequential

understanding of scale, one in which the locality is encompassed by the region,

the region by the nation-state, and the nation-state by the international

community (p. 982).

This geographical model is highly prevalent in the discourse of international law,

been identified in core concepts and legal instruments. According to Bethlehem

(2014): “Geography was and has remained to this day central to this system of law.

Sovereignty, and the equality that flows from it, rests fundamentally on the notion of

exclusive authority over discrete parcels of territory” (p. 13). As such: “…geography

stands at the very core of our contemporary international legal order and is

everywhere deeply embedded in the most fundamental principles of our legal

system” (Bethlehem, 2014, p. 14). But this geographical model is also constructed

upon the idea of the territorialized State, that is, at the same time, based upon 3

geographical preconditions given by the Westphalian state system and verified by

the concepts of verticality and encompassment describe by Ferguson & Gupta.

These three preconditions are i) the reification of the State as a fixed sovereign unit,

ii) the use of the domestic/foreign or national/international binaries, and iii) the

understanding of State as an entity that ‘contains’ society:

First, state territories have been reified as set or fixed units of sovereign space.

This has served to dehistoricize and decontextualize processes of state

formation and disintegration. […] Second, the use of domestic/foreign and

national/international polarities has served to obscure the interaction between

processes operating at different scales […] Third, the territorial state has been

viewed as existing prior to and as a container of society. As a consequence,

society becomes a national phenomenon (Agnew, 1994, p. 59).

21

These preconditions resonate with an understanding of space as a ‘container’ and –

as such—an apolitical and ahistorical factor on social analysis (Massey, 1993). This

underlying understanding of the space in international law and its relationship with

the geographical model in which it operates have produced multiple anxieties for

scholar and practitioners. One of the main phenomena to produce these anxieties in

globalization, that has come to question the whole idea of the Westphalian state

system. The pair of questioning the Westphalia state system and having an

underlying understanding of space as static has produced research that has argued

in favour of “the end of geography”. Such is the case of Daniel Bethlehem, who

argues that ‘geography’ –especially in its more relational understanding—would lose

its importance for international law in a highly globalized world:

But – and this is my thesis today – this systemic continuity is only part, and an

increasingly small part, of the picture. While the geography of statehood is likely

to remain at the root of the international system, it is becoming increasingly less

import- ant as people, goods, services, and funds flow across borders; as

individuals and corporations engage directly with one another without the

intermediation of states or of their paraphernalia; as virtual space takes on

dimensions and an importance that rivals physical space in the world of

transactions, communications, and other engagements; as regional and

multilateral integration arrangements between states reduce the importance of

boundaries; as international and non-governmental organizations proliferate

and operate transnationally on the basis of technical mandates that transcend,

or endeavour to transcend, narrow sovereign interests (Bethlehem, 2014, p.

15)

Despite the controversial nature of his argument, Bethlehem’s work has come to

show the limitation of the current conception of space prevalent in international law

to address the new social dynamics, allowing to invite international legal scholar to

engage with more complex and sophisticated understanding of geography.

22

Answering the invitation posed by Legal Geography seems to engage in an

interdisciplinary conversation seems to be a great way to asses geographical

concepts through a ‘legal lens’, and also to further research the legal geography of

international law that goes beyond Bethlehem’s proposals. The following section will

analyse the research efforts that have been developed to achieve this goal.

ii) Advancing efforts: Research in legal geography and international law

Some international legal scholars have come forward to defy the geographical

assumptions in international law. Although the works of this kind are few, they are

substantial in their contributions. Critical approaches to international law –such as

feminist and post-colonial approaches—have been the base for the development of

research works that make visible the co-constitutive dynamic between geography

and international law. One of the most prevalent contributions is the recognition of

the geographical imagination of international law as highly State-centric and of the

challenges the globalization poses to it:

While the international arena remains characterised by underlying state centric

assumptions, there is much to indicate that the phenomenon of globalisation

complicates the traditional, state-centric framework of international law,

challenging dominant hierarchies of scale and space. The presence of

transnational actors, such as non-governmental organisations (NGOs) and

transnational corporations, in the international legal and political systems is not

entirely new, but is given added importance in contemporary debates by

narratives of globalisation. (Pearson, 2008, p. 495)

If contemporary practices of international law, go beyond State –through

transnational actors and even individuals—then a question is posed about which are

the spaces in which international law operates. Traditionally, the regulatory spaces

of international law –where it is created, implemented and enforced—are mainly the

23

spaces of States: “States and the community of states, for international law, are

where law is created, implemented and enforced — in short, where law happens”

(Pearson, 2008, p. 494). However, the spaces of international law have expanded,

to include the spaces where: “the norms, standards, principles and rules that govern

the behaviour and interactions between units of a system are developed and

enforced” (Pearson, 2008, p. 494). According to Pearson (2008), the expansion of

the spaces of international law: “that further attention be paid to the practices by

which the spaces of international law are created, interpreted, maintained or

transformed” (p. 491). This requires that international legal scholars engage with

concepts of the space that goes beyond its conception as a container, and that move

towards a the co-constitutive leitmotiv adopted by legal geography, where space:

“makes a difference to how society works and how it changes, then, far from being

the realm of stasis, space and the spatial are also implicated (contra Laclau) in the

production of history—and thus, potentially, in politics” (Massey, 1993, p. 144).

The constructivist approach to space that is required from this research works open

the door to study its role in the politics of power of international law. Pearson (2008)

invites us to be aware of the politics of space through the cartographic process that

explores international law, and the enacts representations of the ‘truth”, the ‘natural’

or the ‘real’ within this discipline (p. 492). To so, she also invites us to pay attention

to the material and conceptual spaces that might be included on the production of

‘maps’ of international. This, as it is often assumed that international law is universal

and neutral, and as such: “it is seen as both applicable everywhere and a view from

nowhere in particular” (Pearson, 2008, p. 493). Amaya-Castro has also part-take in

the call for situating international law, as it is always operating everywhere and

somewhere (Amaya-Castro, 2017). The last invitation posed by Pearson (2008), and

in my opinion the most interesting one, is to beware of the process of visibilization

and invisibilization that operate within the cartographic process of international law:

24

…the metaphor helps us, as international legal scholars and practitioners, to

maintain an awareness about our role as cartographers and the particular ‘blind

spots’19 that we bring to the imaginative process that is the ‘mapping’ of

international law. The drawing of boundaries around what we consider to be

spaces of international law ‘is a structuring process, a means by which

particular relationships, subjects and interests are sited, positioned and

prioritised (p. 493).

Other studies, such as the ones developed by Mahmud (2007, 2011a) analyse the

power dynamics that emerge in international law through the operation of geography

and space. Through the perspective of the postcolonial critique of geography,

Mahmud seeks to demonstrate that: “…both modern geography and modern

international law were constituted in, by, and through imperatives of Empire and

unavoidably bear traces of their formative origin” (2007, p. 526). Mahmud has also

incorporated a critical analysis that include the study of the terms of engagement

that operate between international law and geography, and that are moulded by the

global economy and the geopolitics of the colonial era (2011b, p. 78) As such:

The geo-legal space of globalization remains hierarchically organized and

internally differentiated in that relations between particular spaces are shot

through with power inequalities and unevenness. In this context "the global

village . . . is the fantasy of the colonizer, not the colonized (Mahmud, 2011b,

p. 101)

One the most recent take on power dynamics in the geography of international law

in presented by Rajkovic, in his work on the carto-genetic conquests of international.

Following a similar path to Pearson, Rajkovic (2018) establishes a critique towards

the idea of the ‘World Map’ is so prevalent in international law:

25

…the conditions of spatial possibility that define international law (IL) arise not

from the discipline’s own continuing interrogations of legal space but rather

from its import and veneration of a cartographic model crowned by modern

science. An ingestion so complete, in fact, that few notice how the generative

notions of cartography and geometry became quietly subsumed by, and

forgotten within, the institutionalized grammar of territory; not simply for

international lawyers but also social scientists generally (p. 268).

Rajkovic even goes a step further than Pearson, by assessing the methodological

limitations that the hegemony of the spatial concept of ‘World Map’ posses.

According to him, the monopoly of ‘methodological territorialism’ hinders the scope

of inquiry and terms of inquiry that international legal scholar apply, especially when

taking into account the emergence of “ground-breaking spatial developments” such

as the pronouncement of the Anthropocene, global value chains, new technologies

of warfare, and even global surveillance systems (Rajkovic, 2018, p. 268). In order

to surpass this limitations, the Rajkovic (2018) urges international lawyers to critically

engage with: “…the substrate legacy and graphic influence of the geometric map,

which has served to naturalize a certain territorialized grammar of earth space” (p.

270).

However, such a critical engagement is quite difficult if one doesn’t take into account

that the ‘perceived bruteness of boundaries’ is the result of the power of knowledge

structures that benefit a framing in which territory operates as “an objective and inert

‘substratum’ (Rajkovic, 2018, p. 272). To deconstruct this framing of territory,

Rajkovic propose an understanding of territory as a geographic subjectivity that

continues to evolve within history, and that is being constantly enacted and

materialized.

As it has been showed, the few but substantial research project regarding

international law pose a pungent critique to the given assumptions around the

26

geographical dynamics within and among the disciplines. These works not only

question key concepts for internal law as a discipline –such as the centrality of

territory or the representation of the ‘World Map’—they also pose questions towards

the geographical concepts that anchor the geographical imagination of international

lawyers. Critiques towards the notions of territory, the role of colonialism in producing

modern geographies, and even the representational exercise of cartography widen

the scope in which international law and legal geography can engage. Still, there is

enough space for these engagement to continue growing and assessing other

geographical concepts, and even answering to other invitations posed by legal

geographers, like the questions about methodologies that –sadly—was mostly

absent in the reviewed body of literature.

IV. FURTHER RESEARCH: TIME-SPACE COMPRESSION, PLACE AND

THE QUESTION OF METHODOLODY

As mentioned before, the engagement between international law and legal

geography still has room to grow, and even when the body of work regarding the

legal geography of international law has made substantial contributions, there are

still ideas to be addressed. Here, I would like to set a research agenda that includes

ideas that may be signalled but not explicitly mentioned in the current body of legal

geography of international law. First, the idea of incorporating the notion of space-

time compression as a useful concept to study the dynamics between international

law and globalization, as well as the geographical their geographical implications.

The use of this concept might be particularly interesting in the study of global value

chains and their relations with geography. Time-space compression is defined as

“…the speeding up of the circulation of capital and with it a speeding up of social life

in general…” (Kivisto, 2012, p. 1). Time-space compression has notable impacts in

the power relations that enact and are enacted by our geographical experiences. As

such, Doreen Massey conceptualizes time-space compression as a phenomenon

that affects different groups in specific ways:

27

For different social groups and different individuals are placed in very distinct

ways in relation to these flows and interconnections. This point concerns not

merely the issue of who moves and who doesn’t, although that is an important

element of it; it is also about power in relation to the flows and the movement.

Different social groups have distinct relationships to this anyway-differentiated

mobility: some are more in charge of it than others; some initiate flows and

movement, others don’t; some are more on the receiving end of it than others;

some are effectively imprisoned by it. In a sense, at the end of all the spectra

are those who are both doing the moving and the communicating and who are

in some way in a position of control in relation to it (1989, p. 62).

The reception of time-space compression as a concept to be considered in the legal

geography of international law also opens to door to incorporating a progressive

sense of place into future analysis. But first, is important to remember that space

and place are two different geographical concepts. Both are constituted and

constitutive of social practices but operate in different levels of understanding. Space

operated in the macro, while place is articulated within a particular locus of social

relationships (Massey, 1989). According to Massey, a progressive sense of place:

gives a place its specificity is not some long internalized history but the fact that

it is constructed out of a particular constellation of relations, articulated together

at a particular locus […] The uniqueness of a place, or a locality, in other words

is constructed out of particular interactions and mutual articulations of social

relations, social processes, experiences and understandings, in a situation of

co-presence, but where a large proportion of those relations, experiences and

understandings are actually constructed on a far larger scale than what we

happen to define for that moment as the place itself, whether that be a street,

a region or even a continent. Instead then, of thinking of places as areas with

28

boundaries around, they can be imagined as articulated moments in networks

of social relations and understandings(Massey, 1989, p. 67)

Incorporating the progressive sense of place could also broaden the scope of

research of legal geography and international law towards approaches such as the

material life of the discipline, or even the operation of international law in the

everyday life (Eslava, 2015). However, the adoption of this concept also poses a

question on the methodological elements that could be used to approach the new

scopes of research. At this point, I would like bring forward once again the prior

invitation made by Irus Braverman, to be reflexive about the methodologies that are

currently been implemented in the research about legal geography of international

law –that are yet to be mentioned—and about the possibilities that disciplines such

as legal anthropology, the anthropology of globalization, and even science &

technology studies could offer.

V. CONCLUSIONS

Legal geography has been defined as a truly interdisciplinary intellectual project that

studies the interconnections and reciprocal constructions between law and spatiality

(Braverman et al., 2014). The interdisciplinary –and even trans/post-disciplinary—

approach of legal geography gives it an open texture that makes it easy to be

understood more as an encounter among lines of inquiry, than as a rigid “field” of

knowledge. Nevertheless, it has been highly recognized that legal geography has

been focused on certain aspects of law –such as common law and urban law—and

of space –such as urban settings—that are prominently featured in the context of

the Global North. However, increasing work has been devoted to research projects

that move out of the traditional questions present in this scholarship and that take

place from diverse places around the globe. As such, it is now clear that there are

multiple legal geographies and multiple expressions of them.

29

Legal geographies of international law are just one of those multiple expressions of

the lines of inquiry in the field. Even when open called for and recognized as a

possible way to revitalize legal geography, the engagement of international legal

scholars with reflexive spatial concerns is still scarce. Still, the few body of work that

has been developed has made significant contributions to questioning core concepts

of both international law and geography. The notions of territory, ‘World Map’ and

the architecture of modern geography are just examples of the concepts been

questioned. The ideas proposed by legal geography of international law also offers

new ways to approach phenomenon that are deeply rooted in globalization –like

global value chains, new technologies of warfare, and even environmental protection

and resources use—through a spatial lens. This approach would allow to explore

furthermore the complexities of each of these research subjects.

Even with such important contribution been made, there is still room for international

law to explore the trans/post-disciplinary challenges posed by legal geography. This,

through the exploration of geographical concepts that go beyond ´space´ towards

concepts like time-space compression and place. Legal geography of international

law could also benefit from engaging with the challenge posed by Irus Braverman to

be critical and reflexive about the methodological approaches at our disposal, and

the ones we already employ.

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