International Law as History and Geography Applied
Some time ago, I was taught that international law was history and geography applied. In “Imagining Sovereignty, Managing Secession: The Legal Geography of Eurasia’s ‘Frozen Conflicts’”, Christopher Borgen seeks to validate this proposition to a good measure.
In the course of his analysis of the series of ongoing succession-ist crises in the post-Soviet states of Moldova, Georgia and Azerbaijan, Borgen pits respect for the right to self-determination against respect for pre-existing borders. He argues, “(s)ecessionist entities that are able to point to some previously existing boundaries to which they will conform have claims that are more likely to be viewed as legally legitimate…Thus, in an attempt to impose a bright line rule on the messiness of ethnic conflict and separatism, the international community gives weight to cartography and political geography. Being able to show a delineation on a map may not be dispositive of a claim for external self-determination, but it helps.”
He goes further, noting the prospects for the Westphalian system. “This legal system presupposes the existence of a state system and for its proper functioning, it has defined rules concerning secession that protects the existence of states. Geographical concepts such as territory and borders are used to this end…But states are still the core of the increasingly complicated international system and, absent any showing of a viable alternative, are still the best hope for broad-based approaches to peace and justice. Long live Westphalia.”
It is refreshing piece of inter-disciplinary legal scholarship. However, while reading it, I get the feeling that Borgen is wielding a dated instrument. Geography has always been part of international law. Or at least, it has always been part of the narratives that international lawyers construct. No points for saying it out loud now.
More importantly, it is a blunt instrument. Inter-disciplinary international law scholarship has developed far more incisive ways of looking at geography. For instance, law and economics scholars may view geography as an allocation of entitlements. This has the added benefit of accommodating the concept of territorial sovereignty as a basket of rights which may be further allocated. Constructivists may focus on the idealational value of geography. They may look at how territory, as defined on various pieces of parchment, provokes a response from people and policy makers. Behavioral economists may ask if there is a heuristic bias toward protection of territorial rights as opposed to other legal rights. Do we feel differently when faced with an infringement of territorial sovereignty as opposed to a piece of legislation which affords prescriptive jurisdiction?
Perhaps, these are more salient issues to examine in the future. The Opinio Juris blogpost which links to the paper is found at http://opiniojuris.org/2009/02/23/imagining-sovereignty-managing-secession-and-fourth-generation-warfare/.