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...'Beyond') Sovereignty" "The State," "The Nation-State," etc.) or having the topic as a dominant theme, (1) illustrates well an increasingly common view among academics. Especially among political philosophers taking up the theme, it is nearly universally held that sovereign statehood as we have known it for the past few centuries is--if not like slavery and burning-at-the-stake, then at least, like unelected government and child labour--something that ought to and soon will be confined to a dark dustbin of history. Enlightenment and progress reside in the transcendence of this retrograde institution that permits to fester, and from which sometimes directly emanate, a great many evils of our time: war, genocide, an array of human-rights violations, lack of co-operation on critical environmental challenges, global inequality, poverty, and much more. That national conflict and competition result when the massive powers of modernity are organised into distinct concentrations of institutionalised "sovereignty" on discrete territories, is as predictable as the combustion of known inflammatory substances under appropriate conditions.
The relation between sovereignty and territoriality is an intricate one. It is in fact possible to have some semblance of the first without the second. In tribal societies in which various strongmen owe allegiance to different warlords, or in states with confessional jurisdictions which subject different people to different laws according to their faith, governments were to some extent non-territorial, and different residents of the same territory owed allegiance to, were taxed by and compelled to follow the laws of, different governments. We could imagine a modern hypothetical case, where "Saudi citizens" residing in the British Isles could have their hands amputated for stealing, while "British citizens" in the Arabian peninsula would be immune from such punishments, but subject to laws, say, prohibiting sexual harassment. This would contrast with, say, the judgment of a recent French court convicting an African woman residing in France to eight years imprisonment for the practice of female circumcision or "female genital mutilation," as the courts described it (thus applying the laws of France to all residing within its territory).
Much recent criticism of sovereignty would find the non-territorial brand outlined in the previous paragraph equally objectionable insofar as it, too, fails to comply with universal ethical norms. The preponderance of "beyond-sovereignty" advocacy is directed against the territorial sovereignty of our era, and it is these arguments that this paper will address. My conclusion is that while some diffusion (Pogge), unbundling (Elkins) or dismantling (O'Neill) of territorial sovereignty might be desirable, there are stringent limitations as to how much, which critics have hitherto systematically overlooked.
Territorial Sovereignty
To understand territorial sovereignty one must first consider the phenomenon of territoriality in general. Geographer Robert Sack defines it as "the attempt by an individual or group to affect, influence, or control people, phenomena, and relationships, by delimiting and asserting control over a geographic area" (Sack, 1986, p. 19). Territorial strategies can thus range from the posting of no-smoking signs in a room or building, to the disallowing of small children into a part of the house with breakable or dangerous objects, or a room to be kept clean for guests, the defence by criminal or youth gangs of theft "turf," zoning laws within a city or country, the erection of borders between two countries, or the declaration of supra-state zones, whether of free trade, military alliance, or environmental treaty.
In general, the application of a rule or law to any spatial region with the aim of controlling the behaviour of people within it constitutes territoriality as defined above.
Four aspects of territoriality related to state sovereignty are exclusivity, contiguity, persistence, (2) and clustering. Exclusivity involves controlling access to the territory and things within it (Sack, 1986, p. 22), though it can also involve attempts to block access to the outside by restraining those within (as, say, various dictatorships do by restricting emigration or foreign travel of their subjects). With regard to states, it includes what is often called external sovereignty: that no other state's laws can apply or be enforced within its boundaries. It also arguably involves some restriction on immigration. Contiguity has in practice admitted of exceptions, from Alaska to the Spanish enclaves of llivia within France, and Ceuta and Melilla within Morocco, the Italian Campione d'Italia within Switzerland, and Russian Kaliningrad between Poland and Lithuania, but these have tended to be rather rule-proving in the centuries since Westphalia.
Another aspect of the territoriality of states is the persistence of sovereignty over a territory. Introduction of this temporal concept (3) is not intended to deny that borders are sometimes modified, nor even radically expanded and contracted, as, say, the borders of the British Empire. Nor, of course, does it preclude the possibility of states coming into and passing out of existence. But at the heart of normative debates about sovereignty are claims to enduring control over some home base--claims which figure prominently in both nationalist and some cosmopolitan-liberal justifications. (4) It seems a necessary feature of territorial sovereignty that it have reasonable temporal persistence. If borders could be altered at any time according to whim, which would follow if one applied the principle that society should be "as voluntary a scheme as possible" (Rawls, 1971) to the very boundaries of states, the distinction between territorial and non-territorial authority would collapse. Persistent territoriality thus expresses an intersection between space and time and is a useful concept to have in discussing territorial sovereignty.
Finally, it is important to mention an aspect of state sovereignty not inherently territorial, but which in the case of existing states presumes or builds upon the territorial aspects just enumerated. I have called this feature clustering; others authors (Elkins) speak of "bundling." Sovereign states are compounded out of administrative jurisdictions sharing exactly the same territory. (5) Thus, defence, health and welfare, criminal and civil law, unemployment insurance, national income policy, and so forth, are functions or jurisdictions usually clustered together by a single sovereign state; because the state is territorial, the jurisdictions are identically bounded territorially.
Against the background of these distinctions several theoretical alternatives to sovereign territoriality can be envisioned. One already mentioned rejects the first three, while leaving the fourth in somewhat of a haze. Political authority would thus be organised such that 'citizens' were identified and governed exclusively by who they were, not where they lived. In a given territory, rather than one set of laws applying to everyone within it, different sets of laws would apply to the respective citizens governed by them. Since neither exclusivity, contiguity, nor persistence would obtain, the "state," such as it would be, would move wherever its citizens moved. The clustering feature is left in a haze because it would be far from obvious who would administer and enforce the laws in such a regime, who would pay for public construction in a given territory, and who would be eligible to use which public facilities (nor even what 'public' would now mean). Nor is the feasibility of such an arrangement self-evident. This need not detain us, however, as the sole purpose of mentioning this extreme non-territoriality is to raise the conceptual possibility.
Another possibility is to retain exclusivity, but to relax the other two territorial conditions, so that new states could be formed or dissolved at ease, whether...
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