When people think about the US–Mexico border the first image that comes to mind is usually the wall – rust-colored bollards, set at intervals along its nearly 2,000-mile length. This makes sense: It is the principal visual provided by media coverage and a mainstay of political rhetoric. It also fulfills our priors about borders: The wall is a linear divisor between states, recreated in brick and mortar. These days, borders are increasingly wide, zonal spaces, frequently bi- or multinationally maintained; nevertheless, the linear border continues to capture our popular imaginary.

The study of borders by legal and political theorists is little different. In most accounts, the border is portrayed simply as a thin, jurisdictional line. It is the edge of the state; it defines the place where one sovereignty ends and a new one begins. Such thinking about borders follows classic definitions: A state is a territorially defined, bounded political unit, a “bordered power container” (Giddens, Reference Giddens1987: 120), and borders occur where “state sovereignties intersect the surface of the earth” (Muir, Reference Muir1975). By this line of thinking, states, territories, and borders are coconstitutive.

Such a simplified rubric leads to an impoverished debate. In political theory, for example, when we speak about borders, what we usually mean is territorial right. Consequently, positions on open/closed borders derive almost exclusively from border-independent justifications. Proponents of “closed borders” may claim rights to self-determination; by contrast, proponents of “open borders” may make cosmopolitan defenses, such as that we should promote global freedom of movement or equality of opportunity.Footnote ¹ Neither of these positions analyzes the border as such. The lack of border-specific argumentation is exacerbated by the mixed-metaphors we use in describing them. For example, in her recent book Immigration and Democracy, Sarah Song (Reference Song2018: 10) argues that “what is required is not open borders or closed borders, but open doors.”

There are of course exceptions – including from scholars in this volume.Footnote ² Ayelet Shachar’s The Shifting Border (2020b) is a good recent example, as she details the growing gap between expansive border security protocols and static legal protections (Shachar, Reference Shachar2020b: 4–5). My own work fits squarely into this vein; The Politics of Borders (2018) illustrates how efforts at joint border controls may generate the possibility of cross-border federative institutions. In these works and others like them, scholars are beginning to destabilize the relationship between states, borders, and territories. But in this chapter, I want to suggest that even these accounts are insufficient to change our paradigm. This is because they still rely on the state/territory/border triad as their baseline – often termed “Westphalian” – and see contemporary changes as deviations from this norm.Footnote ³ Consequently, while such work can generate profound shifts in our present understanding of borders, they do nothing to shift the bedrock logic that undergirds them. In other words, following Febvre, they perpetuate the border’s naturalness.

A metaphor common to this literature may help clarify the issue. In discussing the embattled nature of Westphalian sovereignty, scholars frequently invoke the story of Gulliver – from Gulliver’s Travels, the popular eighteenth-century satire by Jonathan Swift – tied down by myriad minuscule Lilliputians. Metaphorically, this speaks to the nation-state being bound by transnational legal agreements. Seyla Benhabib (Reference Benhabib2011: 14) writes: “In the last 50 years legal cosmopolitanism has proceeded apace and nation-states, like Gulliver’s giant, have been pinned down by hundreds of threads of covenants, treaties, and declarations.” The painting Gulliver in Lilliput is on the cover of Jean Cohen’s Globalization and Sovereignty (2012). It is a powerful image, but emblematic of the problem. While Gulliver may be tied down – his sovereign capacity constrained – he remains otherwise intact (his body, his skin, his clothes). Theorists who call upon the idiom do so to highlight the cords, not to reconceptualize the body. Gulliver represents the Westphalian state as a bounded unit; the state/territory/border triad persists – indeed, it is to Gulliver’s strength that the metaphor appeals. Thus, while it suggests the state can be tied down, it doesn’t challenge the nature of its stateness. It renders natural and obvious something that is tendentious and conditional; and it is this gaze that bars us from thinking clearly about how we got the kind of borders we have today and the modes of authority they embody.

The chapter proceeds as follows. It begins by defining the Westphalian border as it is conventionally understood – distinguishing between two features, borders-as-authority (1) and borders-as-control (2). Second, it provides a brief history of the development of modern bordering, to locate when this Westphalian border starts to take shape. Here the chapter builds upon debates among historians and legal theorists that debunk the so-called myth of Westphalia.Footnote ⁴ It also follows from concerns within geography about the “territorial trap” (Agnew, Reference Agnew1994) and more recently, within political theory, about “methodological nationalism” (Sager, Reference Sager2016), which challenge the hegemony of states as units of analysis. The chapter concludes with a reconceptualization – what I call the Accordion Model – which captures the conditional and oscillating relationship between territory, authority, and borders. The hope is that by doing so, we might chip away at the hegemonic hold that the state/territory/borders triad – manifest in the linear border – has on our political imaginaries.

1 What Is a Border? Looking Inside (and Beyond) Westphalia

Borders are often referred to as “Westphalian,” but what does this mean? In what follows, I break down the border into two components: (1) authority and (2) control.

Authority (1) is here understood to be a legal – de jure – conception and speaks to the attributes of the border that pertain to jurisdiction. The border here is a linear divisor between polities, “the precise line at which jurisdictions meet.” (Anderson, Reference Anderson1997: 9) Borders-as-authority include the following:

1. a) Territoriality. Borders define the territorial reach of the polity; they define the limits of space (rather than peoples or places).

2. b) Exclusivity. The border delimits sovereign dominion – that is, ultimate, indivisible rule over a particular territory. This authority must be nonoverlapping.

3. c) Linearity. The border must be delineated – that is, rendered as a precise, fixed, line (it cannot be zonal, or indeterminate). It must also be demarcated – that is, located on the ground.

Together these conditions provide the baseline for the state/territory/border triad as a jurisdictional construct. By this rubric, a border can be said to be Westphalian vis-à-vis authority when exclusive territoriality comes to be defined by a linear boundary.

By contrast, control (2) is understood to be a political – de facto – conception and speaks to the attributes of the border that pertain to institutional capacity. To suggest a state controls its borders denotes:

1. a) Defense. It protects against incursion or usurpation (from neighboring sovereigns, for example, or raiding armies).

2. b) Extraction. It regulates the passage of goods and currency (vis- à-vis taxation).

3. c) Filtration. It monitors the passage of citizens and noncitizens (vis- à-vis membership).

In political theory, we tend to emphasize legal aspects of sovereignty over political ones. But matters of control are integral – if a state cannot control its borders, it cannot be considered sovereign over them. As Buchanan and Moore explain, “a state is sovereign if it exercises effective control over its territorial boundaries and population” (Buchanan & Moore, Reference Buchanan, Buchanan and Moore2003: 28). A border can be said to be Westphalian vis-à-vis control when it takes institutional shape to defend against incursions and determine who and what enters and exits the polity.

The aim in the following section is to look at the evolution of the border along this conceptual division, with the aim of identifying when the border can be said to have become Westphalian.

2 Finding the Westphalian Border

At what point did the Westphalian border truly come into view? This question is treated here, beginning with borders-as-authority – (1a) territoriality (spatially ordained); (1b) exclusivity (nonoverlapping); and (1c) linearity (nonzonal) – focusing on border development in Europe, and especially France. Owing to space constraints, this discussion is brief – a whistle-stop tour – divided into three periods: pre-Westphalia (before 1648), Westphalia until Vienna (1648–1815), and post-Vienna (1815 to the present). Because borders-as-control – (2a) defense, (2b) extraction, and (2c) filtration – is a more recent phenomenon and harder to pin down, the section closes with a more detailed look at a specific case: the development of the US–Mexico border in the nineteenth and twentieth centuries.

3 The Border, Naturalness, and Political Theory: What Now?

The material presented in this chapter offers a corrective to accounts that treat borders as though they are obvious or given things, and which take an overly presentist perspective, starting with the assumption of Westphalian borders (from which our current expansive, deterritorialized borders deviate). To illustrate the purchase of this reconceptualization, this section revisits older forms of authority (specifically zonal- and population-based ones) discussed above, then places contemporary changes at the border into this broader historical context. Situating the Westphalian border in this way allows us to see it for what it is: a historically specific way of defining authority that is neither natural nor necessary and which expands and contracts based on the needs of the polity it defines. I refer to this way of thinking about the relationship between borders, states, and territory as the Accordion Model.

Conclusion

Metaphors are powerful agents of communication, but they elide as much as they illustrate. This brings us back to Gulliver and the portrayal of the sovereign – the body politic – as fully formed and intact, despite being tied down. What is obscured by this rendering is precisely the possibility of other relationships between the sovereign body and its flesh. The same can be said about the linear border: It is a powerful visual and rhetorical device, but laden with unhelpful assumptions. This chapter has tried to break this mold by offering a new language for thinking through present changes to borders – that is, conceptualizing them as accordions – thereby prompting us to rethink the relationship between territory, authority, and borders. The hope is that this creative reimagining might help us divorce the border from its simplified linear expression and the assumptions of naturalness this perpetuates.

1 The Resurgence of Territory

A couple of decades into the new millennium, despite much discussion of deterritorialization,Footnote ¹ we cannot help but to pause in humility at the remarkable persistence – and even resurgence – of territory as an organizing principle of the global res publica. Scholars have recently drawn attention to the myriad forms of reterritorialization that have enabled new exertions of sovereign power beyond traditional jurisdictional boundaries.Footnote ² As territory’s durability as a form of political organization comes into sharper focus, we find ourselves faced with the important task of trying to grasp what territory has become – and, perhaps more fundamentally, what it meant in the first place.

The essential ambiguity around the concept of territory has recently spurred a series of renewed attempts in political theory to clarify what exactly territory and territorial sovereignty are. These debates revolve around a series of key historical, analytic, and normative questions. First, what is territory in relation to other similar concepts – for instance, terrain, space, place, jurisdiction, and sovereignty – and how has its meaning transformed over time?Footnote ³ Second, what bundle of rights ought to be attached to the legitimate occupation of territory – for example, property rights, jurisdictional rights, resource rights, and/or border control rights? Put differently, what rights does territorial sovereignty entail? Third, who is the legitimate holder of territorial rights?

In this chapter, I ask: How do we understand the materiality of territory? I begin with the premise that territory, across its many valences, is a concept that assumes a particular relationship between human beings and the land, water, and air that they occupy for the pursuit of their ends – what I call natural space. This relationship, I contend, is built on a certain ontology of natural space, or, in other words, a particular conception, whether explicit or implicit, of the kind of thing that natural space is such that it can (or cannot) be leveraged in particular ways for human ends. By extension, I argue that every theory of territorial sovereignty is also necessarily a theory of the kind of thing that natural space is such that it can be legitimately appropriated, held, administered, and enclosed in certain ways by human beings.

Territory, in other words, is first and foremost land, water, and air reconfigured for the exercise of sovereign ends; and a certain conception of the ontic qualities of land, water, and air is presumed in any attempt to imagine them as the spatial domain of sovereignty.

2 Dominium and Imperium

There are two distinct senses in which modern sovereignty might be understood as territorial, both of which stem from the distinction in ancient Roman law between dominium and imperium – that is, for my purposes, respectively, the right of a sovereign to exercise powers on a territory itself (including the right to dispose of that territory) and the power of a sovereign over persons and moral entities within a jurisdictional domain that is territorially defined.Footnote ⁴ In tracing out an ideal-typical distinction between dominium and imperium from Roman law, part of my goal is to highlight how these two distinct modes of grasping territory – either as the property of the sovereign community or as the site of sovereign authority – offer differing accounts of the prerogative of territorially sovereign communities to exclude certain types of human “others” in modern liberal thought.

Understood as a function of dominium, territorial sovereignty is constructed to entail the prerogative to exclude nonmembers from territorial access as a natural extension of a prior original right to take exclusive control of land, water, and air in the absence of civil association – that is, the natural right to original appropriation in a “‘state of nature.” Drawing on Immanuel Kant and John Locke, I demonstrate that from a dominium-based perspective, territorial sovereignty entails the right to exclude because it is positioned as a logical culmination of prototypical forms of precivil private property association that are predicated on the exclusive appropriation of natural objects, including land, water, and air. Territorial sovereignty may be irreducible to private property ownership; but from the dominium-based viewpoint, its core features, including the right to exclude, are distinctly propertarian in logic and scope.

In contrast, grasped as a function of imperium, territorial right does not eo ipso entail a claim right to exclude “others” from territorial access – only a liberty right to do so as an extension of material, sovereign power. Through a reading of Thomas Hobbes, I highlight that in dissociating the emergence of sovereign authority from a supposed original right to appropriate natural space, the imperium-based view of territorial sovereignty denaturalizes the right to exclude persons from territory. While a purely imperium-based conception of territorial sovereignty offers a dearth of resources to imagine territorial justice, its denaturalizing turn recasts the right to exclude as a tactical question of sovereign power rather than as a logical or ethical consequence of a sovereign community’s supposed natural right to appropriate land, water, and air.

I center my analysis of the early modern liberal uptake of the dominium-imperium distinction on the thought of Immanuel Kant, John Locke, and Thomas Hobbes largely because their foundational accounts continue to animate contemporary debates in liberalism on the nature and scope of territorial right. The “closed society” that serves as the starting point for Rawlsian political liberalism, for instance – which Rawls himself recognizes as a “considerable abstraction” (Rawls, Reference Rawls1993: 12) – finds it archetypical form in Kant’s and Locke’s earlier idealization of a world in which the emergence of political authority is intricately tied to a vision of natural space as readily available for appropriation, transformation, and enclosure for humanity’s sociopolitical ends. Michael Walzer’s seminal liberal account of distributive justice – which centers a right to territorial integrity as a core principle – similarly draws on a Kantian and Lockean paradigm in “presupposing a bounded world within which distributions take place” (Walzer, Reference Walzer1983: 31). We find parallel contemporary imaginaries of natural space underpinning the justice claims of a diverse array of contemporary accounts of what Seyla Benhabib has called “liberal nationalist” and “liberal international” theories of state sovereignty (Benhabib, Reference Benhabib2020).

In this context, juxtaposing dominium and imperium as ideal-typical alternative viewpoints on territorial sovereignty serves as a theoretical strategy to remind us that the moral-ethical dilemma of inclusion in a bordered world is profoundly imbricated with the ecological-ontological question of how we imagine our collective selves to be coconstituted with the natural space around us. The cosmopolitan call to recognize various types of interdependence across territorial borders – as much as its liberal nationalist and internationalist alternatives that bolster, to varying degrees, the sovereign right to exclude – are intimately tied to particular ways of grasping the nature of land, water, and air and the prerogatives that stem from our interaction with them.

3 Origins in Roman Law

In ancient Roman law, the concepts of dominium and imperium do not originally point to a distinction between two aspects of sovereign power or territoriality.Footnote ⁵ Rather, the distinction refers to the difference in how a given right attaches to a right-holder in public versus private law.

Dominium is the Roman private law conception of an absolute right held by a unified legal person (dominus) to do with a tangible object (res corporealis) as one pleases, including the right to possess, modify, transfer, or destroy it, as well as to exclude others from accessing it.Footnote ⁶ Such possession requires the right acquisition of such an object either by civil means (acquisitio ex jure civili), such as by trade or agreement, or by natural means in the case where no civil mode of acquisition has been defined for a given object (acquisitio ex jure gentium).Footnote ⁷ Importantly, to have dominium over territory does not, in its Roman sense, mean to have legal and political sovereignty over that territory, but rather to possess a claim right to hold, use, and transform a segment of territory as private property within the parameters defined by law.

Imperium, by contrast, emerges in Roman public law as the supreme power in political, legal, and military matters in a given domain.Footnote ⁸ Put differently, imperium is the power to authorize and structure legal and political relations, including the power to authorize and regulate private property relations – a power closer to what we typically identify with sovereignty as jurisdictional authority (iurisdictio). For my purposes here, it is important to note that in both its Roman origins and in its early modern uptake, imperium is first and foremost a right to rule or command a group of people rather than a right to control territory.

Considering sovereignty from the dual perspective of dominium and imperium presents a subtle but important tension. On the one hand, dominium’s conceptual origins lie in the natural acquisition of objects by individuals prior to civil agreement. As such, as a matter of fact – that is, in the context of its facticity as human object acquisition and possession apart from civil society – dominium is conceptually prior to imperium. However, as a claim held against others, dominium always presupposes a community of corollary duty-bearers bound together by a common legal authority. In this sense, as a matter of civil right, dominium is emergent from and conditional on the power of imperium to legally define private property rights.

The tension, then, can be restated as follows: depending on whether we emphasize the natural facticity or the civil right of territorial acquisition, dominium and imperium appear differently preponderant as elements of sovereign power. I refer to this as the fact-right discrepancy in the constitution of sovereignty. For my purposes here, this discrepancy is important because it suggests the groundwork for two diverging theoretical accounts of territorial sovereignty – what I call the dominium-centered and imperium-centered accounts.

4 The Dominium-Centered Conception

The first account of territorial sovereignty suggested by the fact-right discrepancy discussed here is the one advanced by John Locke and Immanuel Kant, among other early modern natural law theorists: namely, that imperium emerges from, or is justified by, the imperative to secure private dominium. In its emphasis on the facticity of the precivil use of natural space as the basis of territorial sovereignty, this view situates secure private property relations as the basis of sovereign legitimacy.Footnote ⁹

At the root of John Locke’s version of the dominium-centered position is a blurring of the distinction between human bodies and the bodies of nonhuman objects with which humans interact through productive labor. According to Locke, in the state of nature, because everyone has “property in his own person,” and because the “labour of his body and the work of his hands […] are [thus] properly his,” mixing one’s labor with various natural objects in the commons, including land, “joins” and “annexes” those objects to one’s own body (Locke, Reference Locke1980: 19). Locke describes the product of this ontological incorporation of the object of labor into one’s own body as “property.”

Because of this extended conception of the corporeal self, Locke contends that the prudential concerns for self-preservation that propel human beings into the civil condition via natural reason necessarily entail the pursuit of protections for property, which he defines as “life, liberty, and estate” (Locke, Reference Locke1980: 46). As such, securing private property rights serves as the impetus, justification, and basis of legitimacy for the creation and exercise of common sovereign power in Locke’s commonwealth.

Immanuel Kant, on the other hand, rejects Locke’s account of the emergence of private property in the state of nature because he understands private property principally as a relationship between persons rather than as a relationship between persons and objects.Footnote ¹⁰ As such, Kant denies the ability of individual human labor to unilaterally transform a natural object into private property in the absence of a formal civil association that could establish reciprocal property relations between persons.Footnote ¹¹

Despite his conventionalism with regard to rights, Kant nonetheless ties the emergence of civil society to the impetus to secure private property relations. For Kant, like Locke, practical reason discloses that all humans are originally in “common possession of the land of the entire earth (commodio fundi originaria),” and moreover, that “each has by nature the will to use it” (Kant, Reference Kant1991: 87). At the same time, Kant argues that in the state of nature, “the choice of one is unavoidably opposed by nature to that of another” (Kant, Reference Kant1991: 87) insofar as appropriating objects in the exercise of one’s private freedom removes those objects from common possession. Every act of free, original appropriation of an external, usable object, though entirely justified as private Right, thus violates public Right – that is, the equal freedom of others.

Kant, however, discerns a way out of the injustice of precivil object possession in the rational structure of original appropriation. In acquiring external objects in the state of nature and privately willing that they are “mine,” each appropriative act presupposes a situation there is a law “to determine for each what […] is mine or yours in accordance with the axiom of outer freedom” (Kant, Reference Kant1991: 87–88). That is to say, the will to “mineness” in every act of original appropriation, while only provisionally rightful in the absence of a common agreement on the division of “mine” and “yours,” implies the possibility of “conclusive acquisition” in accordance with public Right – that is, stable, mutual private property rights (Kant, Reference Kant1991: 85–87, emphasis in original).

Accordingly, for Kant, practical reason discloses a universal moral duty in the structure of precivil original appropriation – namely, to generate a civil condition in which laws enabling “conclusive acquisition” rights can be established to secure the preconditions for equal freedom. For Kant and Locke alike, territorial rights are principally justified by their ability to secure rightful private property relations between individuals. For Lockeans, this structure of justification is retrospective – that is to say, territorial rights are justified because they follow from the prior natural right to private property – while for Kantians, the justification is prospective – that is to say, territorial rights are justified because (and to the extent that) they generate rightful individual private property relations. But for both, the pursuit of secure private property relations is the principal explanans for the emergence and exercise of legitimate sovereign power.

At the core of both approaches is the elision of jurisdictional authority over persons and direct control of natural space – that is, a justification for the exclusive attachment of particular human communities to particular segments of natural space. This includes the right to exclude “others” from territorial access in a way that parallels the right of exclusion in private property ownership. In affirming the propertarian foundations of territorial sovereignty, the Lockean and Kantian views bolster an understanding of territory that is more than simply the personal jurisdiction of sovereign authority. Instead, territoriality comes to denote jurisdiction directly over the physical spaces that persons occupy.

Each of these strategies justifies extensions of personal jurisdiction to jurisdiction over physical territory itself either by recognizing human personhood as already coextensive with nonhuman personal property (like Locke) or by grasping all natural objects as already situated in provisional human property relations (like Kant). In different ways, the Kantian and Lockean strategies each rely on an idea of individual personhood – and human relations – that is inseparably enmeshed with property-like control over natural space.

5 The Imperium-Centered Conception

The second account of territorial sovereignty implied by the fact-right discrepancy I have outlined is the reverse of the first: namely, that rights of dominium emerge from imperium and remain subordinate to it in the exercise of territorial sovereignty. In centering the dependence of all property claim rights on a common sovereign power to delineate, judge, and enforce them, this view emphasizes the contingency of a propertarian conception of territory. This account is most notably embraced by Thomas Hobbes.

In parallel to the Kantian account, the Hobbesian view holds that no private property prior to the establishment of sovereign power would at all be conceivable given that private property is never simply a relationship between a person and an object, but always first and foremost a legal relationship between persons – namely, a claim right held against others. For Hobbes, “the introduction of propriety is an effect of the sovereign […], it is the act only of the sovereign; and consisteth in the laws, which none can make that have not the sovereign power” (Hobbes, Reference Hobbes1998: 164, emphasis in original).

On first glance, Hobbes’ contention that private property is impossible in the precivil condition seems analogous to Kant’s later critique of Locke; however, a closer analysis suggests otherwise. Recall that for Kant, it is only because practical reason discloses the “propertarian potential” of natural objects in the precivil condition that individuals can ultimately discern the justice imperative to establish civil society. In his words, “if external objects were not even provisionally mine or yours in the state of nature, there would also be no duties of Right with regard to them and therefore no command to leave the state of nature” (Kant, Reference Kant1991: 124).Footnote ¹² Unlike Hobbes, Kant’s construction of the problematic implies that it is not the absence of a concept of private property as such, but rather the absence of the legal and political preconditions of private property relations in the state of nature that ultimately generates a justice imperative to establish the sovereign state.

In Hobbes’ reasoning, however, the very concept of private property, like the concepts of justice and injustice, could not be derived via natural reason alone prior to the creation of a commonwealth, for the simple reason that human beings would lack the key sociostructural precondition for this kind of shared normative thinking about objects – namely, a common sovereign authority to define human relations in propertarian terms. Hobbes writes, “before the names of just, and unjust can have place, there must be some coercive power, to compel men equally to the performance of their covenants, […] and to make good that propriety, which by mutual contract men acquire, in recompense of the universal right they abandon: and such power there is none before the erection of a commonwealth” (Hobbes, Reference Hobbes1998: 95–96). For Hobbes, the passions that drive human beings, via natural reason, to establish a common legal-political authority are oriented strictly around securing a “common peace and safety” (Hobbes, Reference Hobbes1998: 165) for the purposes of individual self-preservation, not for the higher moral goal of justice. In this context, the formalization of private property relations emerges post hoc as one possible sovereign strategy to secure the peace, but cannot be collapsed into the very drive to establish sovereign power itself.

Rather, the structure of Hobbes’ account opens the possibility that a sovereign might legitimately pursue a plurality of nonpropertarian strategies to enable subjects to escape death, pursue commodious living, and achieve industriousness.Footnote ¹³ From a strong Hobbesian perspective, then, to the degree that Kant claims that there is a rationally discernible moral duty to transfigure acquired objects into private property, Kant’s view ironically presupposes a Lockean, propertarian ontology of natural acquisition even as he denies that private property can exist prior to civil society. For Hobbes, private property is a purely tactical artifact of political power; it is a specific and contingent technology of the power of imperium.

To be clear, the Hobbesian position does not contest the assertion in Roman law that individuals possess a natural right of object acquisition prior to civil property relations (acquisition rerum singularum ex jure gentium). Rather, the Hobbesian account emphasizes the categorical difference between this kind of natural right – that is, a liberty right to object acquisition, ascertainable through natural reason alone, that cannot be held against others – and a civil right – that is, a claim right that generates reciprocal duties for others in a defined community of rights-holders (whether negative duties not to interfere or positive duties to assist). The liberty right to object acquisition does not presuppose or teleologically point to the claim right to property; nor does this liberty right generate any imperative toward civil private property relations.

This has two main consequences for my purposes. First, it means that the Hobbesian conception of territorial sovereignty relies on a purely imperium-based conception of sovereign power over persons. From a Hobbesian point of view, when we refer to modern sovereignty as “territorial” sovereignty, we are simply referring to the geospecificity of the sovereign community of civil rights-holders (i.e., persons in a given territorial area) – not to a prior sovereign dominium (or protodominium) concealed in the idea of sovereignty itself.

Second, this means that no sovereign has a legitimate claim to the exclusive stewardship, ownership, or trusteeship of a given segment of territory that would trump competing claims of other contending sovereigns to that same territory – even if, for instance, that sovereign represents a people group with especially compelling historical, ethical, or environmental reasons for occupying that territory. Because the notion of private property as a right held against others emerges within a particular instantiation of territorially sovereign power, there is no automatic right stemming from precivil object use – or from any object use within the commonwealth – that would generate negative duties between sovereign communities to respect one another’s territorial claims. While the notion of property within a given territory is thus justifiable within a Hobbesian world, the notion of sovereign territory itself as property (i.e., as a title held against other sovereign communities) finds no basis in Hobbes’ imperium-centered view. This also means that the right of territorial exclusion is only a liberty right within a given Hobbesian polity; it does not bind “others,” including noncitizens, migrants, refugees, or others who seek territorial access.

6 A Propertarian Ontology of Territory

I have argued that the dominium-centered view of territorial sovereignty depends on an idea of individual personhood – and human relations – that is inseparably enmeshed with property-like control over natural space. The question now arises: What underpins this propertarian conception of human personhood and relations? Or, put differently, what does the dominium-centered view assume about natural space to imagine that it can be so readily attached to human corporeality or leveraged to secure rightful relations between persons? A rereading of Locke’s and Kant’s accounts of original appropriation suggests that the dominium-centered view achieves this basic attachment – that is, of humans to natural space as such – by attributing three basic qualities to natural space: divisibility, tameability, and ownness. I refer to the view of land, water, and air projected by these three attributes as a propertarian ontology of natural space.

The first attribute of this ontology, divisibility, specifies the quality by which natural space is imagined to be separable in such a way that a given segment can be held and transformed without consequence for the integrity of the larger natural systems in which it is embedded and the myriad forms of life that they sustain. Divisibility does not require that an object be physically separable in a literal sense. Rather, some bodies of natural space that are not physically separable might still be imagined to be juridically separable, such as hedges shared across property lines and water bodies intersected by state borders.

As an instance of the logic of divisibility, consider Locke’s argument about the limits of original appropriation. Recall that for Locke, the first appropriation of any natural object, including “any parcel of land,” is constrained by two provisos: first, that individuals may appropriate to the extent that there is “still enough, and as good left” for others; and second, that appropriation is limited to “as much as any one can make use of to any advantage of life before it spoils” (Locke, Reference Locke1980: 20–21). To exemplify the point, Locke writes that drinking plentifully from a river “does as good as take nothing at all” because no one could plausibly “think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: and the case of land and water, where there is enough of both, is perfectly the same” (Locke, Reference Locke1980: 21). In short, we can justify the original appropriation of natural objects because there are reasonable limits to leave intact a remainder for others to enjoy; these limits separate legitimate original appropriation from personal injury.

For Locke, then, land and water are implicitly imagined as divisible into component parts, such that for any given “part-type” – water in a river, in his example – the salient distributive concerns are: (1) how much is taken vis-à-vis how much is left, and (2) how much is consumed or used vis-à-vis how much is spoiled or wasted. At the core of this assessment is a ratio-centered model of legitimizing natural acquisition premised on levelling natural space into a series of equivalent units for quantitative comparison. I am entitled to extract water from a river for my ends because there is “enough” left for other humans; but I am only able to determine that there is enough left for others because I already imagine water as something which can be segmented into identical units and placed in a ratio with a “whole” for quantitative balancing.

Divisibility is closely tied to tameability, by which I mean the quality by which natural space is understood to be (re)producible by human beings as divisible, even where it is found to be otherwise. Kant’s discussion of original acquisition, for instance, relies on the tameability of natural space as a strategy to legitimize its attachment to human beings, albeit more subtly than Locke’s explicitly quantitative approach. Kant argues that from the original position of common possession of earth, the only condition under which individuals could privately appropriate land in conformity with “the law of everyone’s outer freedom” is “that of priority in time, that is, only insofar as it is the first taking possession (prior apprehensio)” (Kant, Reference Kant1991: 84). Kant then asks: To what extent is such unilateral, first acquisition of land justified? His answer: “As far as the capacity for controlling it extends, that is, as far as whoever wants to appropriate it can defend it – as if the land were to say, if you cannot protect me, you cannot command me” (Kant, Reference Kant1991: 85).

He applies the same logic to water, arguing that, for instance, rivers can be originally appropriated by someone “who is in possession of both banks” in the same manner that “he can acquire any dry land” – that is, by taking control (Kant, Reference Kant1991: 90). On the other hand, for the same reason, the sea can only be appropriated “as far as cannon reach from the shore” – that is, up to the limit that one has the “mechanical ability” to “secure [one’s] land against encroachment by others” (Kant, Reference Kant1991: 89). Up to this limit, the sea is closed (mare clausum) and subject to legitimate appropriation by whomever is first able to control it; beyond this limit, the sea is free (mare liberum), since it is “not possible to reside on the high seas themselves” (Kant, Reference Kant1991: 6, 269).Footnote ¹⁴ Regarding shifting or other fluid natural objects, Kant argues that anything that becomes inseparably connected with one’s land, such as “a change in riverbed adjoining my land and the resulting extension of my land,” is also (provisionally) rightfully one’s own (Kant, Reference Kant1991: 89).

Unlike Locke, Kant does not admit any intrinsic quantitative limits on natural bodies that would suggest a ratio through which a segment of land or water could be put in relation to a “whole” to define restrictions on appropriation. Rather, divisibility in Kant’s account emerges as a function of the basic tameability of land and water – that is, in the assumption that they can be continually segmented and thus possessed through human acts of ‘taking control’ (occupatio), even when they are in perpetual motion. Limits on original appropriation in Kant’s account are tied to limitations in the mechanical ability of humans to assert control and defend their “provisionally rightful” possessions, rather than to anything ontically distinct about land and water (for instance, their embeddedness in ecosystems, their finitude, or their movement).

To some degree, Kant’s account recognizes the dynamic quality of natural space to exceed lines of appropriation – for instance, in his claim about shifting riverbeds. But the assumption here is that any “borders of control,” so to speak, can be continually reasserted as unruly natural objects (such as shifting riverbeds in borderlands) attach to what Kant calls a “substance,” such as land, and as human capacities evolve. In this context, tameability emerges as the assumption that possessive boundaries can be continually reestablished on land and water via acts of human control, as though such acts effectively extricate those segments from the larger natural systems in which they are embedded.

Kant’s and Locke’s accounts also rely on the assumption of ownness – namely, the metaphysical-theological quality by which natural space is understood to exist above all to support human ends. To be clear, by ownness, I do not mean the mere instrumentalization or appropriation of land, water, or air, but rather the presumption that the object’s principal raison d’être is to serve human ends. One can appropriate without the assumption of ownness, for instance, if one does not presume that one is entitled to such appropriation, or if one grants that such appropriation is not legitimized by that object-type being intrinsically “for-me” in its existence.

Locke, of course, is very explicit about his theological commitment to ownness. He famously rationalizes his argument for the natural right to property by invoking the biblical claim that God “gave the world in common to mankind” and by his reason “commanded him [mankind] to subdue the earth, i.e. improve it for the benefit of life, and therein lay out something upon it which was his own, his labour” (Locke, Reference Locke1980: 21). But even Locke’s alternative argument for property rights – that is, his argument by natural reason instead of revelation – is rooted in the assumption of ownness. In asserting that humans are born with a “right to their preservation, and consequently to meat and drink, and other such things as nature affords for this subsistence” (Locke, Reference Locke1980: 18), Locke assumes, without further justification, that humanity’s innate right to self-preservation ipso facto justifies the instrumentalization of all nonhuman nature toward that end.

Kant’s commitment to ownness, while less overtly theological, is still a key element of his justification of the original acquisition of land. Against a Lockean conception of a “right to a thing,” which Kant sees as “personifying [nonhuman] things” as though rights can be held “directly against them,” Kant instead frames object rights as held “against every other possessor of a thing” (Kant, Reference Kant1991: 89) – that is, a relationship of exclusion held only against other human beings. While Kant would thus accuse Locke of anthropomorphizing labored land and water in postulating a precivil right to property, his own solution entails the total deadening of nonhuman nature such that other human beings’ equal freedom remains the only salient limitation to the original appropriation of natural space.

These three core assumptions – divisibility, tameability, and ownness – emerge differently as legitimizing logics in Kant’s and Locke’s accounts of original appropriation. What is important here is simply to highlight that there is a distinctive imagination of natural space embedded in these dominium-centered views of territorial sovereignty, and that this imagination performs a critical conceptual function in rationalizing the original fixed attachment of human beings to territory. Without divisibility, there could be no distinctions between “mine” and “yours,” whether in provisional or complete form; without tameability, the boundaries of possessed segments of natural space could not be defined and fixed; and without ownness, there could be no special entitlement to original appropriation by human beings, regardless of their status as first occupiers of a given area or as laborers who add value to land. By extension, the core sovereign prerogative of exclusive territorial right, and the supposed right to exclude “others” from territorial access, would be largely illegible.

7 The Materiality of Imperium

What, then, is the ontology of natural space that underpins territorial sovereignty? I have maintained throughout this chapter that the answer to this question depends on whether we adopt a dominium-centered or imperium-centered view of territorial sovereignty. If we imagine territorial right principally as the culmination of a natural right to property or as a means to establish rightful property relations, then I have argued that territorial right is predicated by a propertarian ontology of natural space as divisible, tameable, and ownable. This ontology animates the property-like attachment of particular human communities to particular segments of natural space, including their right to exclude noncitizen “others” from access.

If, on the other hand, we view territorial right strictly as the right of jurisdiction over persons in a given geographical area, then the answer is less readily apparent. Instead, we must ask: How does such jurisdictional authority materialize, and what does such materialization assume about the relationship between natural space and human ends?

On the one hand, Hobbes’ radical separation of jurisdictional authority from a natural right to territory enables him to imagine the possibility of a personal-jurisdictional commonwealth without a territory – for instance, the “Children of Israel” before “they were masters of the Land of Promise,” whom Hobbes identifies as “a commonwealth in the wilderness” (Hobbes, Reference Hobbes1998: 164). But for the very same reason, Hobbes’ imperium-based view offers little to imagine territorial justice or limits on modifying or destroying natural space. While a purely imperium-centered view of territorial sovereignty avoids a propertarian ontology of land, water, and air, it does so by entirely circumventing the question of how to legitimize human action on natural space in the first place.

At another level, the “fact-right discrepancy” that I have outlined also provides a lens into what scholars have called “deterritorialization” – that is, the decoupling of sovereign power from its exercise within traditional territorial boundaries. Rather than grasping extraterritorial exercises of state power as part of an ongoing erosion of an earlier, Westphalian form of territorial sovereignty, my account here suggests that the “deterritorializing push” is an impulse that emerges from a disjunction at very core of the idea of territorial sovereignty. While the dominium-based perspective grasps territorial sovereignty as a form of sovereign power supervenient on rightful territorial control or possession, from an imperium-based viewpoint, territorial sovereignty instead appears as a form of sovereign jurisdiction over persons that is unchained by a given territorial claim right. As imperium, territorial jurisdiction materializes in the shifting geophysical spaces that persons occupy – whether within or beyond traditional territorial borders.

What emerges from this account, then, is a notion of sovereign jurisdiction that exceeds its own juridical formalism in its constant materialization as power in physical space. As Abizadeh (Reference Abizadeh, Martinich and Hoekstra2016) argues in his interpretation of Hobbes’ Leviathan, because persons are always physically located, territoriality emerges in the exercise of personal jurisdiction as the apparatuses of the state materialize to advance sovereign ends.Footnote ¹⁵ To be sure, a seemingly fixed territory – even one with defined borders – might emerge as a practical compromise to concentrate the resources of a sovereign power geographically. But importantly, from a Hobbesian, imperium-based vantage point, territory remains a contingent technology of power rather than a constraint on the exercise of legitimate sovereign authority. From an imperium-based standpoint, the de facto jurisdiction that states exercise extraterritorially, such as in apprehending vessels suspected of transporting contravened substances in international waters, is squarely legible as a function of territorial sovereignty.

Of course, the looming question remains: Is the propertarian conception of natural space justifiable? Are land, water, and air actually the kinds of corporealities that can be divided, tamed, and owned in the way presupposed by the dominium-centered view? Moreover, for imperium-based notions of territory, can natural space be limitlessly leveraged to sustain the sociopolitical ends of human beings? It is clear that rematerializing territory raises crucial new questions and problematics about how we imagine the limits and futures of territorial sovereignty – questions that I hope will foster new dialogues between political theorists, legal scholars, and environmental scientists and practitioners.

Introduction

The old idea in international law according to which a ship is the territory of its flag state has long been discredited; as explained in the Danish Company Tax Liability Case (Germany 1971), “this […] would mean that the air space above the ship, “territorial waters” of at least three nautical miles around the ship as well as the water column and the interior of the earth around it, would all have to be considered as part of the ‘floating territory.’”Footnote ¹ This chapter proceeds from the reverse postulation, namely that in a certain sense territory is an anchored ship. I do not mean to say that we should abide by the law of the sea when standing on firm land (equipping every locomotive with life jackets would be silly). But analytically, territory should be relativized and understood as a process rather than a given fact; much like a ship is characterized by varying legal regimes along its maritime journey.

As Nathwani observes in Chapter 7, territory remains “an organizing principle of the global res publica.” This principle can be conceived of as fundamentally private, that is, modeled on the property owner’s right to exclude others from their plot; or public, that is, modeled on the sovereign’s power to establish de-facto exclusive jurisdiction over people. Whether we begin from sovereignty (imperium) or property (dominium), territory is usually premised on the fact that land, water, and air can all be subjected to a state’s power to exclude.

This all seems to be very unship-like; it would be rather unusual to say that the ship is an organizing principle of the global order. The Montevideo Convention on the Rights and Duties of States (1933) tells us that “The state as a person of international law should possess […] a defined territory.” Not only soil and rock, but air and water too are often tucked into the fold of real property or sovereign authority. When I tie a rope that hangs regularly in the air above my neighbor’s property, I may be trespassing. When I fly in the air over Germany I am in German airspace. The streams and rivers beneath me may be privately or publicly owned, as provided for by domestic law. In any case, all these are subsumed, somehow, under terra firma. Property and sovereignty are thus imagined as coconstitutive and universal. Despite occasional references to the doctrine of terra nullius – “no body’s land” – the latter doctrine is largely regarded as obsolete: a colonial rule, no longer binding. In stark distinction from the ship, nothing falls outside territory. We may call this the premise of universal territoriality.

But what happens if we begin our analysis of territory neither from private property nor from public jurisdiction but from the maritime commons? Beyond the 12 nautical mile strip of territorial waters, maritime space is shared among nations. The vast majority of it is defined as the “high seas,” a global commons that is legally protected from being subsumed under imperium or dominium. Here, the premise of universal territoriality is utterly extinguished.

This chapter thus addresses two questions: What is territoriality, if we consider it from a maritime, rather than landed perspective? And how should borders be reconsidered, if we assume that the nonsovereign space of world seas is constitutive of politics, rather than exceptional to it? Adopting an approach stemming from international legal process (see, e.g., O’Connell, [Reference O’Connell1999] Reference O’Connell2017), and following a host of new works in law and society focusing on oceans and seas (see, e.g., Braverman, Reference Braverman2022; Johnson & Braverman, Reference Johnson and Braverman2020; Mawani, Reference Mawani2018; Ranganathan, Reference Ranganathan2016), this chapter is an attempt to cast the question of territoriality from the sea more broadly. I argue that if we are to understand territoriality, we must reject the premise of universal territoriality and understand it (also) from the position of nonterritoriality which is offered to us by the sea. Further advancing this point of view, previously suggested by the law and society scholars mentioned here, amounts to a contribution to a theory of political action.

This short chapter outlines a vast trajectory, with an expectation that my future work will provide further detail of this vista of territoriality from the sea. The story it tells is one of transformation: Sources from antiquity display an imagination of maritime spaces as exterior to politics. In the seventeenth and eighteenth centuries, classical international lawyers internalized this exteriority and formulated an international law that first sought global applicability. Grotius, who is credited for the basic legal framework, articulated the freedom of the high seas – mare liberum. To do so, he relied on ancient sources referring to maritime exteriority, only in order to recast the legal principles governing the seas and thus internalizing them in the system of international law. I thus call his intellectual (legal, political, economic) revolution the first internalization.

The principle he seemingly defeated, that of mare clausum, is currently reemerging, powerfully, as the second internalization. The contraction of mare liberum is observable at least since the framing of the United Nations Convention on the Law of the Sea (UNCLOS) toward the mid-twentieth century. Its elimination, not yet concluded, is observable in transformations of maritime space owing to developed states’ efforts to impose extraterritorial border controls in an age of digital surveillance. The chapter concludes with reflections on how traces of exteriority, beyond the premise of universal territoriality, can be utilized today for the purpose of political action.

1 Maritime Space as Exteriority

The social contract tradition, associated with political thinkers starting from the seventeenth century and still influential today, begins with a firm assumption of bounded territory. Whether we begin from private property or from public jurisdiction, territory is usually not explained by the social contract. It is presumed by the social contract tradition. Inasmuch as territory is discussed, it appears as a fait accompli. John Locke, whose concept of property is prepolitical, gives us a certain theory of how property developed (based on labor exerted before the social contract). As is well known, Locke’s theory served to justify acts of expropriation, during his own time, directed towards indigenous populations (Hsueh, Reference Hsueh2006; Murray, Reference Murray2022). Despite that fact his social contract theory, like others, regards the making of territory as something that happened in the past; happened – and ended. As with other classical social contract theorists, readers will not receive an account of territorialization as a process.

Commenting on “Territorial Rights and Territorial Justice” in the Stanford Encyclopedia of Philosophy, Margaret Moore explains that in our own time political philosophers have been “guilty of this blind spot, in part perhaps because of the extraordinary influence of Rawls in contemporary political philosophy” (Moore, Reference Moore2020). As she explains, Rawls’ task in A Theory of Justice was to theorize the domestic justice of the state, and he therefore assumed that “political society is closed” (Rawls, Reference Rawls1971: 4). For Moore this is also an assumption of the sedentary nature of political life: “he meant that we should conceive of it in the first instance as a self-sufficient entity that we happen to be in and cannot leave.” As for international law, the discipline’s problem with territoriality is much related. The Montevideo Convention definition, referred to earlier, presumes rather than explains. The Convention provides a definition of the state’s reliance on territory, not a rational basis or a justification for territory.

Processes of territory-making are thus arguably occluded from the views of both political philosophers and international lawyers. In reality, however, territory does not come premade: not any specific territory, and not the notion of territoriality tout court. Oceans and seas illustrate the problems of assuming that territory is universal and all-encompassing. The notion of territoriality as a global regime of imperium and dominium ignores too much of the face of the planet to be truly informative. Considering maritime space, it quickly becomes apparent that the world is not fully divided into defined territories as the premise of universal territoriality may lead us to think. Sovereign states as well as public and private territories are constantly in a process of construction. From antiquity to the present, they have also had an outside, which figured both in political imagination and in law. This exteriority is significant not only for historical research, but also for legal and political theory.

Earlier traditions of political thinking, starting from antiquity, do not adopt the premise of universal territoriality, which exists in the social contract tradition. In the Old Testament, according to Genesis, history begins after the deluge. Animals and persons alike disembark from a large ship. In the story of Noah’s Ark territory emerges from undefined water. Perhaps even more clearly marking the beginning of politics, think of the Exodus: This is a condition of movement, in which the parting of the Red Sea arguably has an important role not only for punishing the Egyptians, but also for the emergence of the Israelites as a people. At this stage, the “promised land” is still yet to be discovered and conquered. In the Book of Jonah, the prophet attempts to escape from his calling by way of maritime travel, but the sea surges and storms with the might of God’s wrath. Jonah may run from politics, but not from the elements.

Moving to ancient Greece, Plato too advances an image linking politics and maritime movement. In the Republic, Plato introduces the “ship of state” simile in which a state is likened to a maritime vessel. For a completely different example, consider the practice of scaphism, an ancient Persian punishment described by Plutarch. This method of execution entailed trapping a person between two boats and pushing him out to float at sea, covered with honey to be devoured by creatures. The sea thus figures as a place for banishment and exile – and the sea’s exteriority is revealed once again.

How does our understanding of politics change if we try to dislocate ourselves from the social contract tradition and from the premise of universal territoriality, and think of maritime movement as a political starting point? Emphasizing maritime travel, rather than bounded territory, we are led to think of political life as outward looking, in constant encounters with a changing environment. Stars, sky, and wind are all sensible natural phenomena. The citizen stands on the deck and looks into the atmosphere, observing transformations.

This view of politics is not primarily concerned with the relationship between citizens, or between citizens and their sovereign, as the social contract tradition is. Rather, it starts from a different relationship, namely that between a people and its god(s). The latter’s concrete embodiments are the elements: waves and wind, temperature and humidity. Throughout antiquity, rival groups engaged in battle, and often offered service to different gods. But observing the dangers of nature at a settlement’s edge was an experience common to many cultures. This was an experience of exteriority, of natural forces, and of deities. In this view, the sea or the ocean is a placeholder for a superpower outside politics. The sea can be calm or furious. The political person must try to predict what comes next.

2 The First Internalization: Mare Liberum

So far, I have suggested that ancient sources reveal an imagination of the sea as exteriority. But for Hugo Grotius, author of Mare Liberum (1609), these ancient sources serve as a scaffold for a different imagination altogether (Grotius, Reference Grotius2004). His is a project of internalizing the sea and eliminating its imagination as exteriority. With Grotius, maritime space becomes a building block of onshore territoriality.

To understand how Grotius territorializes, we must focus on what is perhaps his most familiar concept, namely the freedom of movement on the high seas. To be sure, Islamic authors predated Grotius’ idea (Khalilieh, Reference Khalilieh2019). Yet, clearly, he must be credited with much of its global dissemination. For Grotius, the sea is free for movement not because it is exterior to politics but precisely to serve particular political and economic goals – colonization and global commerce. The internalized sea is the infrastructure for an imperial legal order at sea, and importantly on land.

Representing the Netherlands’ interests as a maritime power, Grotius argued that the sea by its very nature cannot be divided, nor can sovereignty or private ownership be imposed upon it. The sea was an “original gift of the world to mankind,” meaning that “The sea was common in the same way that everything was common in ancient times before the introduction of laws of private property” (Salter, Reference Salter2001: 539). Grotius’ return to antiquity was a characteristic move for commentators of his time. He relies on Aristotle, Plato, and others. According to Pliny the Elder, mobility (Grotius thinks this refers to maritime transportation in particular) belongs to a prepolitical realm of self-preservation: “traffic was found out for the maintenance of the life of man” (Grotius, Reference Grotius2004: 50). Seemingly, Grotius tells a similar story about ancient texts as the one outlined earlier: The sea comes before politics and draws its limits; the sea is our common exteriority. Yet for the clever lawyer this was but a strategic move.

In truth, neither the legal idea of a “free sea” nor the political idea of a maritime commons, as they emerged in Grotius’ work, represented exteriority. Nor was Grotius’ story only about standing before the elements. He was indeed interested in mutual assistance among commercial vessels in condition of peril. But the doctrine of the freedom of the high seas served to eliminate anarchic elements of exteriority and subject land to territoriality in the forms of imperium and dominium. With Grotius, the idea of the commons receives one of its first and still most powerful articulations (Chan, Khan, & Awan, Reference Chan, Khan, Awan, Hudson, Rosenbloom and Cole2019: 404). Remarkably, this happens precisely when the oceans serve as the traffic artery for imperial expansion, colonialism, and an evolving Atlantic slave trade.

Practically, although the sea is imagined as commons, maritime powers including Great Britain, Spain, and Denmark constantly sought to control it (Glete, Reference Glete2002). Arguing for the recognition of maritime commons was a strategy of gaining maritime control – the strategy adopted by the Netherlands thanks to its skillful lawyer. From this perspective, it is no different from Britain’s attempt to do away with the maritime commons, which John Selden espoused in his reply to Grotius under the opposing title Mare Clausum (1631) (Selden, Reference Selden2004). The European construction of global maritime commons opened a shared space for mobility. But the purposes and motivations of this legal construction illustrate how this mobility was not, in and of itself, a liberating force.

To be sure, the idea of a commons does have an emancipatory aspect, one that seeks to set a limit to territoriality, or, in other words, to government by sovereignty and property. This idea goes back to the struggle against the enclosure of land property in seventeenth-century England (Winstanley, Reference Winstanley and Winstanley1983, Reference Winstanley2011). As Linebaugh and Rediker explain, in revolutionary sources such as the writings of the Diggers and the Levellers, an ancient tradition and idea of the commons was marshalled to counter “enclosure” and appropriation (Linebaugh & Rediker, Reference Linebaugh and Rediker2000); it epitomized an insistence on exteriority, aimed to counter the territorialization of every corner of the British Empire. For Linebaugh and Rediker, pirates exploited and fought for the maritime commons in much the same liberating way (see also Rediker, Reference Rediker2004). The commons thus appear as a weapon against territoriality. For Grotius, commons functioned in precisely the opposite way. While common property was at times a revolutionary and protoanarchist slogan, Grotius built on natural rights traditions to support property acquisition as an imperial mode of accumulation. A common sea was the conduit for the imposition of military rule across centuries and many colonies, and the exploitation of their resources.

Grotius thus built on the seeming “freedom” of the maritime vantage point and utilized it – but not as an alternative to territoriality, and clearly not as alternative to rule by law. Despite its reliance on natural rights and natural law, Grotius’ freedom of the sea is legally constructed. Its role as platform for trade renders it replete with legal regulation (Benton, Reference Benton2009: 105–106). Already in Grotius’ time, every ship carried a flag, and brought its laws with it. As the image I start with suggests, later jurists thus thought of maritime vessels as “floating territory” (Tanaka, Reference Tanaka2012: 152). The flag projects not only jurisdiction, but also an image of the ship as an arm of the state, highlighting a “public” or sovereign aspect of maritime travel. The phrase “free sea” can be misleading, if by that one means free of legal regulation (Aalberts & Gammeltoft-Hansen, Reference Gammeltoft-Hansen, Chetail and Bauloz2014: 440).

To be sure, just like territory, the ship couples between imperium and dominium, and is ultimately both at the same time. And the “private” ordering of the ship is just as prevalent in Grotius’ work. Specifically, Grotius already recognized ship owners’ limited liability, a legal-economic principle later justified to mitigate risks of trade and incentivize it (Neff, Reference Neff2012: 195). As he writes in 1624: “the principle has been established that, in respect to responsibility for the acts of the captain, all the owners together are liable for no more than the value of the ship and the cargo” (Putnam, Reference Putnam1883: 2). The work of later jurists occasionally identified limited ship owner liability as a predecessor of the limited liability firm and modern capitalist corporate law more generally (Mahoney, Reference Mahoney2000: 886).

And so the ship figures as a public and private entity at one and the same time. The European ship foreshadows public ordering in terms of states and private ordering in terms of property, and ultimately the limited liability corporation. To reiterate: By doing so, it brings into sharp relief the common origin of imperium and dominium, which informs the premise of universal territoriality. In its legal construction joining together imperium and dominium, the ship is not an exceptional model of territoriality. It is the paradigm for it. It is not that the ship is floating territory. Territory is but an anchored ship.

While foreshadowing political-economic formations yet to come, maritime powers exploited and transported natural resources, laborers, and slaves around the world. With European expansion, European powers destroyed myriad forms of indigenous political organization, which did not share many of its defining aspects (Wilson, Reference Wilson2021). Indigenous cultures across the world did not share emerging distinctions between public and private life. As Antony Anghie has shown, the fundamental legal distinctions of the time emerged as a response to the encounter with indigenous cultures and in attempts to subdue them (Anghie, Reference Anghie2005: 15–16). In the large project of colonial war against indigenous populations, the freedom of the high seas was a technology of empire. It was advanced in the name of but in fact destroyed an imagination of freedom that construed the sea as the exteriority of politics and law. Grotius’ freedom of the high seas was the apogee of a first internalization of the sea and of the imagination of exteriority, in a world governed by law and economic interest.

3 The Second Internalization: Mare Clausum

Section 3 suggests that the victory of mare liberum over mare clausum was not a victory of liberty or of emancipation. It was a victory of one technology of imperial power over another. However, it is important to also stress that mare liberum, while it served the process of territorialization in the colonies, still anchors a distinct perspective, not abiding by the premise of universal territoriality. For mare liberum advanced the territorialization of land precisely by legally constructing the sea as not territorialized.

As is well known, however, the victory of mare liberum was neither an absolute nor a stable victory. Elements of mare clausum remained central to the discipline, and especially reemerged in the twentieth century. The confinement and submission of maritime space under sovereignty reappeared, already in the eighteenth century, with the claims of coastal states which led to the recognition of territorial waters, initially 3 nautical miles wide. Cornelius van Bynkershoek’s famous “cannon shot rule,” according to which territorial sea must cover the distance of a cannon’s shot, illustrates vividly that principles of mare clausum were intimately tied to national security concerns as well as technological developments (Walker, Reference Walker1945). The 3 mile stretch gradually grew and developed into the 12 mile rule recognized today both under treaty and under customary law.

Next came the recognition of certain protective powers in “contiguous zones” attached to territorial sea, which also convey an aspect of closure. Of crucial importance was the new realization of economic opportunities at the depth of the sea and the ocean floor: In the twentieth century, the United States claimed exclusive jurisdiction over “the natural prolongation of its land into and under the sea” (Hasin, Reference Hasin2023: 231). This claim was later followed by other states, culminating in the 1958 Conventions on the Law of the Sea. The evolution of mare clausum continued with claims made for exclusive fishing zones and extended territorial seas. As Hasin writes, the result was a “new balance,” still rather unstable, between principles of mare liberum and of mare clausum:

The international codification of search and rescue zones in the 1979 International Convention on Maritime Search and Rescue (SAR) further extended a measure of sovereignty out to sea. It thus extended state’s responsibilities of security and surveillance offshore (Aalberts & Gammeltoft-Hansen, Reference Aalberts and Gammeltoft-Hansen2014; Keady-Tabbal & Mann, Reference Keady-Tabbal and Mann2022).

These twentieth-century developments signaled the beginning of a second internalization of maritime exteriority. This second internalization was different from the first. Mare liberum internalized the sea, but still anchored a perspective free of territoriality. The second internalization was about a process of selective territorialization of the sea. Rather than the sea being constructed as free in order to serve the territorialization of land, the sea itself was being gradually constructed as land.

Under UNCLOS and the global order described here, the freedom of the high seas is still protected. Article 87 of UNCLOS unquestionably enshrines aspects of mare liberum: “The high seas are open to all States, whether coastal or land-locked” says the provision, before specifying “freedom of navigation” and “freedom of overflight”; and the same article protects additional freedoms concerning submarines, cables, pipelines, artificial structures, fishing, and scientific research. These rules are undeniable. Note, however, that in the third decade of the twenty-first century we are still in the process of the second internalization. It has not yet fully concluded, and cannot be appreciated by looking only at the international law rules of the law of the sea. To fully appreciate the second internalization and the potentially vast territorialization of the sea currently underway, one must look into other areas of law and policy. Indeed, many of the relevant developments are so far occurring only de-facto, with the normative environment still reflecting tenets of mare liberum. One area in which this process is apparent is that of migration control, with its novel attempt to impose borders far at sea.

**

Since the beginning of the twenty-first century, developed states and international organizations have been drawing new lines in maritime spaces, for example in the Mediterranean by redefining and negotiating SAR zones (Aalberts & Gammeltoft-Hansen, Reference Aalberts and Gammeltoft-Hansen2014: 450, 454), and off the western coast of Africa (Mann, Reference Mann2013). These lines have been part of the operational plan for “border externalization” and remote strategies of border control. Border externalization is the process, much commented-upon, whereby developed states are gradually contracting out border enforcement capacities (see, e.g., Gammeltoft-Hansen, Reference Gammeltoft-Hansen2011; Ghezelbash, Reference Ghezelbash2020; Tan, Reference Tan2021). The latter are increasingly conducted from without and formally under the authorities of developing states. Within this process, substantial resources have been dedicated to the question of how to enforce borders at sea. Mare liberum has, within this context, become an impediment to border control, and has been targeted as such.

To understand how this territorialization works, take a look at Figure 8.1. This is a map produced by the European Union’s border enforcement agency, Frontex. It describes so-called Joint Operation Hera, which has been in place off the western African coast since the mid-2000s.

Figure 8.1 Joint Operation Hera, 2010

Source: Frontex/OP/694/2016/JL (2016). Trial of a Remotely Piloted Aircraft System (RPAS) for Maritime Aerial Surveillance. Tender Specifications – Annex I. Frontex.

The map, from 2010, depicts two oval shapes which are presumably located (at least partly) in international waters. These are areas where, under UNCLOS, the freedom of the high seas under Article 87 is supposed to apply. However, the operation is designed “[t]o implement coordinated sea border activities in order to reduce illegal migration from Western Africa…” In other words, the operating forces surveil and intercept migrant vessels leaving from West Africa with hopes of reaching Europe.

Under an idea of mare liberum, and seemingly under Article 87, such interception would not be legal. However, as I have explained in detail elsewhere (Mann, Reference Mann2013), the legal theory behind these operations seeks to rely on mare clausum authorities provided by law to coastal states: in this case, Mauritania and Senegal. Mare clausum is thus expanded to undo the apparent legal rule of mare liberum (see also Moreno-Lax, Reference Moreno-Lax, Costello, Foster and McAdam2021: 485). The maritime space is internalized, not by way of legally constructing a commons (as was the case with the first internalization). The second internalization, which this map is a part of, is about selectively territorializing maritime spaces, and imposing sovereign authorities upon them. One may say this is only an imposition of a de-facto authority, while the rule continues to enshrine mare liberum. But that would only be partially convincing: Through a sophisticated reliance on law, mare liberum is gradually eliminated. The maritime perspective on territoriality thus allows us to see territoriality in the making. The error of the social contract tradition, which regards territoriality as a fait accompli, is thus avoided. What we come to see is the construction of a border at sea. As will become immediately clear, the emerging form of that border is that of a virtual wall. Digital signals are its building blocks.

Whether we regard the process as a de-jure or de facto development, contemporary technologies of border-making at sea go well beyond “joint operations.” In more recent years, a crucial aspect of the process of border-making at sea is airborne maritime surveillance. Figure 8.2, also produced by Frontex in its explanation of its operations, illustrates this vividly.

Figure 8.2 RPAS aerial surveillance in a maritime scenario

Source: R. Liubajevas (2010). EPA Annual Conference: Frontex Within Integrated Border Management Concept – Structural Approach in Planning Capacity.

“Objects of interest,” at the lower side of the image, stands for “suspected migrant vessels.” The “Coordination Centre,” at the right side of the image, is the EU coastal states’ Maritime Rescue and Coordination Centre. States are obliged to establish such centers to provide maritime rescue in their search and rescue areas under the 1979 SAR Convention. The white line in the water represents the line of sight from the coastal state. The image thus demonstrates how RPAS can expand the “area of interest”: “The scenario depicted in Figure 8.1 shows a typical maritime border surveillance operation conducted by border control authorities. The ‘artist impression’ reflects the development of a mission where the surveillance platform (RPA) surveys the area of interest, included in the deployment area, searching for ‘objects of Interest,’ and passing surveillance data/information to the designated Coordination Centre.”

These drones have been known to serve “pull-backs,” a mode of externalization in which migrants are pulled back by their country of embarkation (see, e.g., Cuttitta, Reference Cuttitta2022: 7; Markard, Reference Markard2016: 592). One such country has been Libya, where the violations of migrant rights are rife. The pattern exposed by human rights observers is that European state authorities, mostly Italians, “warn” Libyan Coastguard authorities that a migrant vessel is sailing away from Libya’s shores. The Libyans then capture the migrant vessel, negating any opportunity that its passengers might otherwise have to seek asylum (Giuffré & Moreno-Lax, Reference Giuffré, Moreno-Lax and Juss2019; Pijnenburg, Reference Pijnenburg2018, Reference Pijnenburg2020). In Figure 8.1, the white line in the sea seemingly shows the maritime space where pullbacks are possible without drones. The drones allow Frontex to facilitate pull-backs from further away. The whole apparatus amounts to the building of a digital border wall at sea (compare Shachar, Reference Fine and Shachar2020). It is another aspect of the way in which border externalization expands the mare clausum and selectively internalizes and territorializes the sea. The model is designed to eliminate a certain aspect of freedom and indeed of maritime exteriority that remained in a world of mare liberum. Air becomes an agent for territorializing the sea.

But airborne surveillance in the Mediterranean has not exclusively been in the control of governments. Already in 2013, Pezzani and Heller called for a “disobedient gaze” – exploiting surveillance technologies for the protection of migrants (Pezzani & Heller, Reference Pezzani and Heller2013), (see also Ghezelbash, Reference Ghezelbash2022). More recently, the solidarity organization Sea Watch has deployed its own airborne surveillance. Cuttitta has thus noted that solidarity activists employ a mode of counterexternalization (Cuttitta, Reference Cuttitta2022: 21). By using this term, scholars aim to make a more general point about externalization. Unlike states which try to externalize enforcement without human rights protection, activists try to externalize human rights protections – decoupled from enforcement (Mann & Mourão Permoser, Reference Mann and Mourão Permoser2022: 444). Activists too therefore take part in this second internalization.

The territorialization of the sea has so far been selective. SAR activists and humanitarians contest that selectivity or contest it selectively. The first amounts to asserting that states cannot be selective: If they are to externalize enforcement capacities, their human rights obligations will necessarily be externalized as well. Executive power and judicial accountability cannot be decoupled (Mann, Reference Mann2013). The second amounts to asserting that the activist community too can play the same game of selectivity. Whichever we choose, what is clear is that states and activists coconstitute the second internalization. As Aalberts and Gammeltoft-Hansen put it, “to deal with politically sensitive issues relating to the search and rescue (SAR) regime,” they all apply “a territorial logic” (Aalberts & Gammeltoft-Hansen, Reference Aalberts and Gammeltoft-Hansen2014: 441). Whether this ultimately leads to liberating migrants and ensuring safe passage or to the solidification of borders remains to be seen. So far, evidence militates mostly towards the latter.

4 Political Action from the Sea

What is territoriality, if we consider it from a maritime rather than landed perspective? Keeping in mind the ancient imagination of the sea as exteriority, and the two historical and revolutionary internationalizations described here, an answer emerges. What I have called the premise of universal territoriality has always been false. Territoriality never existed as a finalized regime of imperium and dominium. Rather, territoriality is made of processes of territorialization. In these processes, the imagination of the sea as exteriority is gradually eliminated and maritime space is internalized. But they are never full or complete. In territorialization, law has had two distinct and partially contrasting roles. It served as technology of internalization in the form of a legally constructed commons, or mare liberum. And it has served as a technology of internalization in the form of a selective imposition of sovereignty upon maritime space, or mare clausum. Within the context of border control, another aspect of territoriality that has been studied but must be mentioned here too is, conversely, deterritorialization. Apposite examples of the latter strategy are Australia’s “excision zones,” an arrangement on land and at sea whence sovereign territories are no longer regarded as such for migration purposes (Maillet, Mountz, & Williams, Reference Maillet, Mountz and Williams2018).

Contrary to the social contract tradition, the maritime perspective helps reveal borders as unstable assumptions and not preexisting facts. The maritime perspective reveals that borders are constantly being drawn and redrawn, and are themselves processes rather than things. Rawls’ assumption, that political societies are closed, is revealed as an unhelpful abstraction. Political societies are more like crew and passengers on the anchored ship I described earlier: New members can board and old members can be thrown overboard. And the ship itself can set sail and move. With the climate crisis, its citizen-sailors are repositioned in the role of reading nature and expecting what will come next. But nature too is radically internalized: In the Anthropocene, seawater is a mirror reflecting a history of human exploitation and territorialization.

Historians may regard the insight that territories do not preexist as trivial or obvious. If we look to history, there can be no other option. But this chapter hopes to offer the insight not (only) as an historical observation, but as basis for a legal and political theory of territoriality and of borders. Ultimately, I also aim to outline a theory of political action.

How, then, should borders be considered if we assume that the nonsovereign space of world seas is constitutive of politics rather than exceptional to it? If territory is indeed an anchored ship, borders are moveable and open by nature. Their movement and openness can serve different and opposing normative ends. Of course, the “floating” nature of territoriality has long been a basis for tax havens and radical privatization (Palan, Murphy, & Chavagneux, Reference Palan, Murphy and Chavagneux2010). But borders’ indeterminacy, especially when they happen to pass in seawater, also opens particular and novel modes for political action. What is common to the modes of action I’m thinking of is that they rely upon or exploit residues of exteriority and nonterritoriality, despite the two maritime internalizations.

The best-known example of this kind of action relates to the movement of migrants and refugees. When asylum seekers move across the sea to a new country, they try to help themselves. But they also rely on the legal assumptions of mare liberum – the unrestricted movement at sea; and they further depend on the duty of rescue at sea, also part of Grotius’ old legacy. Writing about the duty of rescue, Grotius thought of merchants in need of assistance during a storm. He internalized the sea by creating a legally-constructed fulcrum for them to fall back upon when in danger. Today, however, refugees and migrants trigger these duties with their bodies for other objectives: to protect themselves from a life that may not be worth living (Mann, Reference Mann2016). Groups of rescuers and volunteers moving across the Mediterranean Sea to extend a helping hand frequently make use of laws that originate in what I have called the first internalization. They carefully choose flags with a view to the unique system of authorities created at sea. They rely on rules advancing unrestricted movement for merchants and colonialists. And they sometimes see themselves as outside the laws of states and under the direct jurisdiction of a higher law – not the law of god, but international law (Mégret, Reference Mégret2021).

Despite the second internalization currently underway, the law of the sea still encapsulates a residue of exteriority and anarchic freedom, and thus still opens up a potential for new forms of solidarity. Mégret thus writes about solidarity with refugees, but also underscores how the maritime space enabled new forms of action for Greenpeace activists, who have sailed the seas to protect the sea and sea life; and also for the feminist group Women on Waves, which took to sea in order to operate extraterritorial abortion clinics off the coasts of countries that prohibit abortion (Mégret, Reference Mégret2021). These are all examples of political action that revives a form of nonterritoriality (whether “exterior” or not). And they rely on a certain anarchic perspective that the sea still offers to activists. They are not premised on waiting for an international or federalist government that might bring incremental positive change through democratic process. They are premised on doing what we can do now, moving through the cracks of territoriality to stake a position that is in certain ways both public and private at the same time. It is worth emphasizing that they can be initiated both by left and right, liberal as well as conservative initiatives. No matter what normative commitments lie behind them, such actions employ ships to enjoy a ship’s nature as imperium and dominium, never firmly situated only in one.

A call for political action from the sea is not a call to exit politics. It is an attempt to characterize a particular kind of inroad to politics. All these actors – migrants, environmental activists, and feminists – take advantage of opportunities for action inherent in the ambiguities of territoriality. As long as a regime of mare clausum is not finalized, the maritime perspective may provide us with new opportunities to act.

Capital, goods, and people are more mobile than ever in our globalized world. Yet the movement of people across borders is still a largely unregulated enterprise at the global level that leaves many people unprotected in irregular and dire situations.Footnote ¹ International mobility – the movement of individuals across borders for any length of time as labor migrants, entrepreneurs, students, tourists, asylum seekers, or refugees – has no common definition or legal framework.

The absence of concerted global regime for international mobility, unlike the regimes for trade (World Trade Organization), finance (International Monetary Fund), and development funding (World Bank and regional development banks), is a glaring global governance gap. The humanitarian consequences are most acutely felt in the many forced migrants who do not qualify as refugees under the 1951 Refugee Convention. Increasingly central among them today are those driven by climate change, the so-called climate refugees, climate forced migrants, or (more skeptically) climate-induced migrants.

This chapter explores arguments for assistance and asylum (nonrefoulement) that those who are driven by climate to cross international borders can and should claim. It seeks to amend the standards developed by the Model International Mobility Convention and it draws upon the jurisprudence of the Teitiota Case and other recent cases that probe claims for asylum based on climate necessity. It addresses the recent (2022) Torres Straits Island Case and the significant additional protections it recognizes under international human rights law. It will conclude that relying on general human rights conventions such as the International Covenant on Civil and Political Rights (ICCPR) is not adequate and that a special convention focused on climate refugees is required along the lines of the 1951 Refugee Convention, which specifically addressed those facing “persecution” on grounds of “race, religion, nationality, social group or political opinion.”

1 The Model International Mobility Convention

In order to address gaps in the global governance of mobility across borders, a group of forty-plus specialists in migration and refugee protection gathered in 2015 and 2016 to draft a Model International Mobility Convention (MIMC). MIMC offers a “realistic utopia” that is comprehensive of the various forms of mobility and presents a cumulative protection of rights for the varying statuses under which people move across borders. The completed convention with commentary was published as a special issue of the Columbia Journal of Transnational Law in 2018.Footnote ²

Some of those gaps involve students, tourists, and short-term workers who do not fit the UN definition of migrant and who face distinct and separate governance regimes. International migration has only recently (with the affiliation of the International Organization for Migration as a related agency of the United Nations in 2018) acquired a lead organization within the UN system. International migration also has a very weak international legal regime – the Migrant Workers Convention (1990) – that has not been adopted by destination countries. Critics have charged that in its diverse national settings, the “national” standard of treatment of the Migrant Workers Convention simultaneously under-protects and overprivileges temporary migrants. The overlaps and gaps of these existing regimes need to be addressed, taking into account the impact mobility has on economic growth, development, and security for all countries and their populations. An international mobility regime is thus needed in order to establish a system that recognizes the human dignity of all while promoting the interests of countries of origin, transit, and destination.

Forced migration is a particular concern from a humanitarian point of view. There exists a well-established refugee regime based on the 1951 Refugee Convention and its 1967 Additional Protocol, both implemented by the United Nations High Commissioner for Refugees (UNHCR). As the nature of conflict has changed in recent decades, however, this regime has shown strain and weakness. Today there are approximately 27 million refugees and 5 million asylum seekers in the worldFootnote ³. Mixed flows of labor migrants and refugees fleeing for safety and economic prospects have created a crisis in the asylum-seeking process. Those forced to move as a result of severe economic devastation, gang violence, natural disasters, or climate change often do not meet the “persecution” threshold of “refugees” and therefore are not guaranteed protection, even though the threats to their lives are manifest.

MIMC’s standards for the protection of forced migrants are significantly wider and are set forth in Section 5: Article 2, defining a “forced migrant” as:

MIMC grants asylum and protection rights equivalent to 1951 Convention refugees to all forced migrants. Indeed, it extends those rights, granting forced migrants rights equivalent to nationals, including access to employment and housing, rather than the rights equivalent to admitted foreigners granted by the 1951 Convention. It redefines how we understand protection by broadening what classifies as warranting such from the 1951 Refugee Convention’s “persecution” on five grounds to including all threats – from whatever source – of “serious harm,” defined as external threats to an individual’s physical survival. It specifically encompasses “environmental disaster” and “acute climate change.” Accommodating the generalized harms of climate change, it moves away from the narrowing, intentional harm of “persecution” and broadens the elements to include external threats people face from the “environment” and “acute climate change.” But it does not provide clear operational standards on asylum for those forced to migrate across borders owing to the threat of imminent death from “external” causes.

Significantly, as Sections 2 and 3 illustrate, the impact of climate change is becoming more destabilizing while jurisprudence based on basic human rights standards are beginning to clarify the threats to life posed by climate change.

2 Forced Climate Migration

On Earth Day 2021 (April 22), the UNHCR identified the tragic impact that climate change has been having on developing countries of the Global South. The High Commissioner noted that from 2008 to 2019 an average of 22 million people were displaced from their homes each year owing to weather-related events – more than twice the number of displacements which occur each year owing to conflict and violence (United Nations High Commissioner for Refugees [UNHCR], 2021a). Adding to the assessment of impacts, the World Bank (2021) has estimated that without concerted climate and development action by 2050, 216 million people could be forced to migrate within their own countries as a result of climate change. As other meta-analyses indicate, many of these will be forced to flee across borders. As many as 150 million people are currently living on land that is projected to be below the high-tide line in 2050 (Lu & Flavelle, Reference Lu and Flavelle2019). Eight islands in the Pacific have already been submerged by rising sea levels, and 40 more are expected to be underwater by 2100 (Podesta, Reference Podesta2019). Acute and slow onset crises of drought, flood, and other harms are all connected to climate change.

In a powerful series of influential articles in the New York Times by Ian Lustgarten and Meredith Kohut (Reference Lustgarten and Kohut2020, Part 1–3) the authors describe studies demonstrating that, while today 1 percent of the earth is a barely livable hot zone, by 2070, 19 percent could be. In extreme scenarios, 30 million migrants could surge from Central America to the US in the next thirty years. Drawing on recent systemic modeling exercises, the authors report the following stark conclusion:

Clearly, climate change is placing human beings at increasing risk of life, dignity, and welfare.Footnote ⁶

Climate change destabilizes the connections among borders, territories, and rights in a fundamental way. One of the underlying but unarticulated assumptions of the Westphalian territorial sovereignty model is that the territory is habitable. Territories being flooded by rising seas or desertified by drought challenge the underlying model that protects public rights with exclusive claims to territorial jurisdiction. One can imagine alternatives to the territory-rights holders model including “democratic cosmopolitan” systems of governance that adjust borders to flexibly fit evolving demoi defined by changing democratic public communities that take jurisdictional rights with them wherever they settle. Another possibility is libertarian jurisdictions based on residence in which all residents presently in place acquire governance rights within a set territory.Footnote ⁷ Attractive as they are, these ideal and hypothetical regimes require large and untried reforms that alter the sovereignty-territory-rights system that has shaped the normative international public order for centuries.

A less transformative but still responsive measure would be to identify protections for those whose sovereign “territory” has failed them because the global economy has imposed deep stresses on the environment. Before considering the special rights of “climate refugees,” I will thus next turn to standards for refuge that draw upon a commitment to the basic protection of human life embodied in general human rights law.Footnote ⁸

3 Human Rights: Teitiota Standards

Teitiota has been justifiably recognized as a landmark case.Footnote ⁹ Mr. Ioane Teitiota (a national of Kiribati in the South Pacific) had his petition for protected status on grounds of his being a “climate change refugee” rejected in New Zealand, a judgment that was affirmed by the United Nations Human Rights Committee. Both found that he had not been “persecuted” on any one of the five protected grounds of “race, religion, nationality, social group or political opinion” that would establish his credentials as a “refugee” under the 1951/1967 Convention.

Equally importantly, however, the Committee noted “that in their decisions, the (New Zealand) Immigration and Protection Tribunal and the Supreme Court both allowed for the possibility that the effects of climate change or other natural disasters could provide a basis for protection,” and:

While acknowledging the possibility of climate-based asylum and the accuracy of the facts provided by Teitiota before the New Zealand Tribunal, the Committee affirmed the judgments of the New Zealand Tribunal that the evidence the author provided did not establish that he faced a risk of “an imminent, or likely, risk of arbitrary deprivation of life upon return to Kiribati.”Footnote ¹¹ The basis for the rights at stake were Articles 6 and 7 of the ICCPR: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life” and “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Examining six factors, the Tribunal found that there was not sufficient evidence to establish that Teitiota had a claim to nonrefoulement.Footnote ¹² Importantly, at the same time, the Committee thereby suggested what in fact would justify asylum on human rights grounds.

1. 1. The Committee noted that he had not “been in any land dispute in the past, or faced a real chance of being physically harmed in such a dispute in the future.” This suggested that if there had been widespread violence over land, or if it had been targeted against Teitiota, he would have had a claim to asylum.

2. 2. Nor did the Committee find that “he would be unable to find land to provide accommodation for himself and his family.” It added that though “it was difficult to grow crops, it was not impossible.” The Committee therefore suggested that Teitiota could move and find arable land or other employment. Had that not been available, he might have qualified for asylum.

3. 3. Had he been “unable to grow food or access potable water” needed for a healthy existence, he would have had sufficient grounds to claim asylum. The Committee noted that “60 per cent of the residents of South Tarawa obtained fresh water from rationed supplies provided by the public utilities board.”

4. 4. If he “would face life-threatening environmental conditions” he also would have qualified. Had, that is, his farm been subject to flooding, threatening his life, and other land was not available, he would have been able to claim asylum.

5. 5. If “his situation was materially different from that of every other resident of Kiribati” he also should have received asylum. But his experience was generalized – as climate impacts often are.

6. 6. He would have received asylum if “the Government of Kiribati had failed to take programmatic steps to provide for the basic necessities of life, in order to meet its positive obligation to fulfill the author’s right to life.” While agreeing that Kiribati faced likely inundation in ten to fifteen years, the intervening ten to fifteen years allow for “intervening acts by the Republic of Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population.” The Committee noted that the New Zealand authorities thoroughly examined this issue and found that “the Republic of Kiribati was taking adaptive measures to reduce existing vulnerabilities and build resilience to climate change-related harms.”Footnote ¹³ There was no discussion of how efficacious those measures were.

4 Beyond Human Rights to “Climate Refugees”?

Thus, while the Committee concurred with the decision of the New Zealand authorities denying Teitiota’s claim to asylum, it opened the door to other human rights claims based on demonstrations of more severe (or targeted) harms demonstrating an imminent threat to life. Respectable as the decision was, it nonetheless demonstrated at least three significant limitations that, together, suggest that we need a focused, specific set of standards that go beyond general human rights protections of imminent threats to life in order to govern asylum claims based on the adverse effects of climate change.

The first draws on the two dissents in the Teitiota Case. The decision was based on Teitiota’s circumstances, not those of his entire family. Both the dissents by Vasilka Sancin (Annex II) and Duncan Laki Muhumuza (Annex I) highlight the effects on his family. In Sancin’s view, New Zealand and the Committee failed to “present evidence of proper assessment of the author’s and his dependent children’s access to safe drinking water in Kiribati.” The Muhumuza dissent correspondingly identifies the family’s “bad health issues – with one of his children suffering from a serious case of blood poisoning, causing boils all over the body.” As noted by Jane McAdam, failing to take into account the health interests of the children violates the Convention on the Rights of the Child and so does expelling Teitiota, as doing so would fail to protect the right to family unity (that is, even if only the children were experiencing the adverse health effects, asylum is merited) (McAdam, Reference McAdam2020: 717).

The second, also drawing on the dissents, highlights the “dignity” standards prohibiting “degrading” treatment found in Article 7 of the ICCPR that are distinct from the imminent threats to life referenced in Article 6. A dignified life can be compromised well short of an imminent loss of life. Scrambling from climate-compromised farmstead to farmstead while tending to children suffering severe health effects surely fails to meet the dignity standards evoked in Article 7.

Third, and lastly, as also pointed out by McAdam (Reference McAdam2020: 720–721), the Committee’s decision could be justified as resting on avoiding the infliction of “imminent” harm, but the standards actually invoked were “an imminent, or likely, risk of arbitrary deprivation of life.” The “or likely” deserves specific attention. But neither the Committee nor McAdam (in the cited article) quite specifies the justifiable standards for what constitutes “likely” harm.

5 Torres Straits Islanders’ Case (2022)

A second landmark decision from the Human Rights Committee was released in September 2022; it elaborated on states obligations that were identified in the dissents and left underspecified by Teitiota. The claim by Daniel Billy et al. and six of his children (all Australian nationals and Torres Straits Islanders) argued that Australia had violated his rights under ICCPR Articles 2, 6, 17 and 27 and the rights of his children under Article 24. The plaintiffs (unlike Teitiota) are not claiming asylum (they are Australians) but redress, including performance and compensation, from their government responsible for their protection.

Going well beyond the standards in Teitiota, the United Nations Human Rights Committee decided that the Australian government violated the human rights of indigenous Torres Strait Islanders by failing to adequately protect them from the severe impacts of climate change.Footnote ¹⁴ The committee’s decision (Para. 11) directed Australia to compensate the islanders for climate-related harm, carry out meaningful consultations with their communities to understand their needs, and take action to ensure that the inhabitants can safely occupy their lands.

Australia opposed the decision, but the eighteen human rights experts found that Australia has violated the islanders’ rights to their family life (Article 17) and their culture (Article 27) under the ICCPR. The committee noted that Torres Strait Islands, located between Australia and Papua New Guinea, are home to some of the “most vulnerable populations” to climate change, subject to rising sea levels and flooding, high temperatures, ocean acidification, the loss of shoreline, coral bleaching, and the extinction of species that are culturally important to native communities, including coconuts relied on for the traditional diet. Storm surges have become so intense that they have destroyed family grave sites, scattering human remains. “Visiting the graves of loved ones is a core part of the islanders’ cultures, and specific rites of passage can only take place on their ancestral lands” (Surma, Reference Surma2020).

The committee thus held that the Australian government violated the islanders’ rights by not implementing adequate adaptation measures to protect their family life (homes and livelihood) as well as their ability to maintain their indigenous culture, their traditional way of life, and the right to pass on their culture and traditions to future generations. Focusing on adaptation, while sidelining mitigation, allowed the committee to bypass the question of who caused the harms. It was simply necessary to point out, for example, that the Australian government had not built the seawalls the islanders had petitioned for, and which would have helped the communities to adapt to climate change.

The Panel rejected complaints that concerned violations of “a right to life” (Article 6) with “dignity” (Article 7) and that Australia had failed to mitigate the nation’s contribution to climate change. The experts held that Australia’s efforts to adapt still left ten or more years to secure life on the islands and that Australia’s contribution to global warming was one part of a complicated global process.

Important as the decision is, it leaves open the question of whether violations of Article 17 (family life) and 27 (minority culture) are sufficient to trigger the nonrefoulement obligations of states. Should a Torres Straits Islander receive asylum in another state if Australia fails to implement the Human Rights Committee decision? Conventional jurisprudence suggests that nonrefoulement obligations are generated by threats to life “(imminent” and perhaps “likely”), not necessarily by threats to other rights a person’s home country is obliged to protect.

6 National and Regional Jurisprudence as Supplemental Standards?

A series of Italian cases before 2018 appeared to open the door to claims of “humanitarian protection” Relying on the protections of Articles 3 (inhuman or degrading) and 8 (dignity) of the European Convention on Human Rights,Footnote ¹⁵ and Article 7 of the ICCPR (degrading treatment, with reference to Teitiota), the National Commission for the Right of Asylum included “serious natural calamities or any other local factor that hampers a safe and dignified repatriation” as grounds for temporary protection. Regrettably, these standards proved to be unstable. Following the election of the League and Five Stars Movement, the new Minister of the Interior Salvini issued the Salvini Decree, restricting protection to “torture, persecution and massive violations of human rights.” This was partly reversed by the subsequent 2019 electoral victory of the M5S and Democratic Party, which partially reversed the Salvini Decree with the Lamorgese Decree, which broadened protections (Negozio & Rondine, Reference Negozio and Rondine2022). The election of the Meloni government in October 2022 returned Italy to the stricter standards and an arrangement with Albania to outsource asylum applications.Footnote ¹⁶

Fortunately, the French Case of Mr. A provides important guidance both on the need for a “likely” (not merely “imminent”) standard and what it should look like.Footnote ¹⁷ Tried before the Appeals Court of Administrative Court of Bordeaux, in France, on December 18, 2020, the case set important standards (even if not precedents) for European law for environmentally justified asylum. “A” was a national of Bangladesh suffering from both allergic asthma and sleep apnea. The Court found that “Mr. A would be confronted upon arrival in his country of origin … with a worsening of his respiratory diseases because of atmospheric pollution” (Peacock, Reference Peacock2021, 1/4). “A” had been receiving care in France that stabilized his condition. The French regulations on entry, residence, and asylum (CESEDA) permit residence not just for required medical care but also consideration of “the delivery and characteristics of the country of origin’s healthcare system,” which would not allow for the claimant to “effectively access the appropriate treatment.” A medical expert noted during the trial process that Bangladesh has among the highest rates of particle pollutants in the world and an asthma-related mortality of 12.92 per 100,000 inhabitants, compared with 0.82 in France.

The “likely” threat invoked was not an immediate threat to life but rather subjection to a system likely to increase the threat to “A’s” life through airborne particle pollution, and the indirect effects of heat in disrupting the Bangladeshi electrical grid which would likely disrupt the air ventilators “A” needs for his care.

Expansive as the ruling was, it was still based on the human right to life, now extended into likely threats. It is questionable whether the international community as a whole is prepared to guarantee a general right to healthy life through asylum. And similarly, extending the “likely” standard to environmental harms per se, of the kinds faced by Teitiota and the Torres Straits Islanders, as grounds for nonrefoulement would probably require something more than a straightforward right to life reasoning.

What thus appears to be needed is a special convention that offers protection from global climate change-induced effects on a healthy life. It is worth recalling that the 1951 Refugee Convention was itself this kind of lex specialis limiting asylum to a gravity standard of “persecution” and to the five elements of “race, religion, nationality, social group or political opinion.” These specifications were designed to reflect the special circumstances of some asylum seekers in postwar Europe. The Convention was, furthermore, specifically confined by geography (“Europe”) and date (“before 1951”) – until the limits on geography and date were removed in the 1967 Protocol.

To give consideration to the global origin of climate change and its disproportionate effect on certain countries and communities least responsible for global warming – for example, Kiribati or the Torres Straits Islands – a special convention (a lex specialis), which would reflect common but differentiated responsibility, seems warranted.Footnote ¹⁸

Borrowing standards from Teitiota, Torres Straits Islanders, and the “likely standard” from the Case of A, it could define a “climate refugee” as someone (and their family) liable to being returned to a country experiencing adverse climate effects that were:

1. 1. contributing to increased threat of a likely loss of life, even if they were not necessarily presently, imminently life threatening, (supplementing Teitiota); or

2. 2. resulting in harms to family life or indigenous culture (the Torres Straits Islanders standards); and

3. 3. not being adequately addressed by local policy measures; or

4. 4. not supported by global measures for enhancing resilience. These “global measures” would be along the lines of those promised at the Paris Conference (including the Green Climate Fund),Footnote ¹⁹ and extended at the Glasgow Summit.Footnote ²⁰

Thus, in order to establish a valid claim to climate-based asylum, an individual must be experiencing a likely threat to life resulting from adverse climate change. His claim would be denied if his home government was not only adopting but also successfully implementing corrective measures that would remove the threat. His claim would also be denied even if he was experiencing threat and his government was presently failing to address the threat, but the global community was effectively mobilized to provide adequate assistance that would redress the threats by assisting his home government to remediate the threatening circumstances.

These four standards would supplement the national obligations outlined in the Torres Straits Islanders judgment. They would supplement the Teitiota nonrefoulement criteria by offering “gravity” and “elements” standards of a special international convention that would consider family and communal cultural rights (not just individual), likely health threats (not just imminent), and the actual effects of policy on both a local and global scale (rather than just the presence of policy initiatives). The World Health Organization and the Intergovernmental Panel on Climate Change would need to team up to better define health threats to life and the impact of climate change on them, and to develop quantifiable measures that could rate countries’ relative standing. The general principles underlying the Nansen Initiative (2015) concerning climate displacement and the norms articulated in the Global Compact on Migration (2018)Footnote ²¹ could be drawn upon for support.

In order to increase the resources and cooperation that would be needed to sustain this commitment, more responsibility sharing would be needed. MIMC proposes a global scheme of cooperation that would share the burden of providing either funding or admissions for those claiming forced migrant status and consequent asylum. That arrangement assesses responsibility based on a formula that the parties would determine to be fair. One candidate would be the 2016 EU formula of shares based on gross domestic product, population, past refugee admissions, and current unemployment rates.Footnote ²² Climate-specific responsibility might be included by adding into the formula greenhouse gas emissions per capita (reflecting the historically larger contribution from the industrial countries).Footnote ²³

In conclusion, one cannot overstate how far the international community of today is from this kind of commitment. But the challenge of developing fair and effective standards should not deter the analysis and advocacy from starting now. Like the other trends and crises discussed in this volume, the climate-induced migration challenges ahead reflect the continuing gap between human needs and the national jurisdictions that are designed to meet them, leaving populations vulnerable to the adverse effects of climate change and unable to flee to find safety and sustenance. But they also reflect gaps between human needs and current understandings of the human rights that populations can evoke before international organizations (such as the Human Rights Committee) that are designed to recognize and protect those rights. Here we need to develop a deeper connection between safety and sustenance in the face of climate-induced change that broadens the recognizable rights claims to include not only survival, but also sustenance, both personal and communal.