ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

43 TERRITORY AND ITS LEGAL
IMPLICATIONS II
Panel formed with individual proposals.
Participants
Name of Chair
Room
Oran Doyle
Ntina Tzouvala
Michèle Finck
Almut Peters
Ralph Wilde
Michèle Finck
UL6 2070A
Oran Doyle: The Constitution of Territory
Based on a comparison of territory clauses from
all world constitutions, this paper traces patterns
of influence and constitutional migration. Is territorial
construction an issue where constitution-drafters
look to their neighbours? Do countries that shared a
colonial master take similar approaches? Apart from
these patterns of influence, the paper explores whether
there is support for a fundamental theory of territory. I
argue in another work-in-progress that constitutional
texts cannot determine the territorial scope of a constitutional
order. Rather, conventional ultimate rules
of recognition contain territorial referents that in turn
delineate the territorial scope of constitutional orders.
This being so, territorial references in constitutional
texts cannot fundamentally determine the territory of
a constitutional order, but they can serve three limited
purposes: to clarify fuzzy borders, to assert contested
territorial claims, and to retrench from previously controlled
territory.
Ntina Tzouvala: Manufacturing Territoriality:
19 th -century International Law and the Emergence
of Borders in Siam
This paper revisits the ‘unequal treaties’ and more
specifically their extraterritoriality provisions as the
standard method of engagement with the semi-periphery
of international law. Challenging the view that
territorialised political power constitutes a bare fact
simply ‘registered’ by international law (see the Montevideo
Convention criteria for statehood), my paper
revisits the imposition and abolition of extraterritoriality
in Siam. My principal argument is that extraterritoriality
was not simply a system of Western exceptionalism,
but much more fundamentally, an attempt to draw
borders, create a centralised, bureaucratic system of
political power with legal and de facto monopoly of
violence over a specific territory and, more broadly,
set the stage for the emergence of the modern state
as a subject of international law. Therefore, my contribution
challenges the ‘naturalness’ of borders and
highlights the role of international law in the creation
of territorially-bound authority.
Michèle Finck: Towards a Polycentric Legal Order:
Subnational Authorities in EU Law
This paper examines the status and role of local
and regional authorities (‘SNAs’) in EU substantive law
and reveals the existence of two parallel yet opposed
constitutional imaginaries of EU law. The structure of
the European legal order was long understood to be
bi-centric; composed of the Member States and the
EU only. In this picture, SNAs are a domestic phenomenon
that entertains only indirect interactions with EU
law. Relying on manifold areas of EU substantive law
the paper pinpoints that next to this commonplace
account of SNAs as outsiders of EU law, a different
narrative of the structure of the European legal order
can be made out according to which SNAs are, just as
the Member States, insiders thereof.
Almut Peters: Borders within a federal state
Can the number and territory of the component
states within a federal state be altered? And if so, how
exactly should this change come about? Or, to put it differently:
How firm or how flexible are the borders within
a federal state? These are the questions that public
lawyer Hugo Preuß (1860–1925) asked when he drafted
the Weimar Constitution for Germany after World War
I (1919). His most prominent – and also most widely
refuted – proposal was to dissolve Prussia into several
smaller states in order to eliminate Prussian hegemony
in Germany. Preuß’ idea was that borders within a federal
state should be fairly flexible. In this paper, I suggest
an interpretation of his ideas as a functional and
non-historical theory of federalism. I argue that Hugo
Preuß’ functional theory of federalism is still a relevant
category when analyzing federal structures today.
Ralph Wilde: Queering (extra-)territoriality
Whether and to what extent states owe obligations
in international human rights law to people outside their
sovereign territories is a topic where the subject-matter
is prominent and controversial, and knowledge about
the substantive law contested and selective. The legal
significance for human rights law of the territorial/extraterritorial
distinction is illuminated by a consideration of
underlying conceptions involving distinctions between
what is normal, on the one hand, and what is abnormal/exceptional/deviant/unusual,
on the other hand.
This paper will consider extraterritoriality as ‘queer’,
investigating how ideas from queer theory might help
us better understand these debates and the tensions
implicated in them, including, fundamentally, problems
with the assumption that the territorial/extraterritorial
distinction itself is stable and correlated.
Concurring panels 78