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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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