International Law and Ungoverned Space

Author:Matthew Hoisington
Position:United Nations Office of Legal Affairs
Pages:423-473
SUMMARY

Ungoverned spaces, strictly defined as "spaces not effectively governed by the state" exist all over the world, presenting particular difficulties to public international law, which is historically premised on sovereignty and state control. Examples of such spaces include cyberspace, south-central Somalia and the Federally Administered Tribal Areas along the Afghan-Pakistan border. These spaces... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2014 e Institute for Migrant Rights Press
rst published online 06 December 2013
423
Note. is article is written in my personal capacity and does not necessarily reect the
views of the United Nations.
INTERNATIONAL LAW AND UNGOVERNED
SPACE
MATTHEW HOISINGTON
United Nations Office of Legal Affairs
E-mail: hoisingm@gmail.com
Ungoverned spaces, strictly dened as “spaces not eectively governed by the state”
exist all over the world, presenting particular diculties to public international law,
which is historically premised on sovereignty and state control. Examples of such spaces
include cyberspace, south-central Somalia and the Federally Administered Tribal
Areas along the Afghan-Pakistan border. ese spaces destabilize the international
system in novel ways—and they might also be dangerous. Many of the terrorism
plots from the late twentieth and early twenty-rst century emanated from “safe
havens” aorded by ungoverned spaces. e lack of governance over certain spaces
also raises concerns over development, including the health, education, human rights
and economic welfare of aected populations. To address the challenges posed by
ungoverned spaces, both to the discipline of international law and to the stability
of the international system, this article derives a nuanced understanding of the issue
from both the security and legal literatures and then formulates three techniques—
state responsibility, principled engagement and radical reimagination—for dealing
with the issue through the application of international law. rough this process it
develops a complex argument on how international law should apply to ungoverned
space.
Keywords: Deviation, Ungoverned Space, Innovation, Technique, Reimagination,
Governance.
The Indonesian Journal of International & Comparative Law Volume I Issue 2 (2014) at. 423–473
Matthew Hoisington
424
I. INTRODUCTION TO UNGOVERNED
SPACE
A higher number of stronger, better functioning political communities
now exert control than at any other point in human history. Taking the
world as it is, the “international community” is comprised of (at least) 193
nation-states. It is axiomatic that each of these forms varies in its political
eectiveness, yet most would agree that in one way or another they do in
fact exist. In an eort to further organize relations between themselves,
these political communities have also concluded hundreds of thousands
of agreements, commonly referred to as treaties, accords, compacts and
conventions. “Controversial candidatures”1 often seek to assert their
status through accession to existing treaties or the promulgation of new
agreements with recognized states. ere are currently over 30,000 treaties
registered with the Secretary-General of the U.N. pertaining to issues as
broad as international trade and as narrow as the control of “obscene
publications.” e oceans have their own specic legal regime consisting
of a series of intricate and comprehensive conventions concluded in 1958,
1982 and 1994. No less than ve universal international agreements
address the international law of outer space.
Inter-governmental or international organizations often arise
out of, or are also parties to, such agreements. By one count 64,000
inter-governmental or international organizations currently exist.2
ese organizations range widely in size, geographical representation,
complexity and competence. e United Nations (U.N.), for instance,
includes 193 member-states and is charged with, among other things,
securing international peace and security for the entire planet. Formal
mechanisms like the U.N. exist in parallel with more informal “G-x
organizations, such as the G-20, G-7 (or G-8) and the counterbalancing
G-5, N-11 and G-173 movements that they engender. Within the formal
structures, other, so-called “specialized agencies,” focus more narrowly
on a particular subject area, such as economics, health, labor, energy or
the environment. In September 2010 reports emerged that the U.N. was
1. I B, P  P I L 65 (7th ed., 2008).
2. See U  I A, Y  I
O 2011-2012 (2012).
Matthew Hoisington
INTERNATIONAL LAW & UNGOVERNED SPACE
425
considering the appointment of a “space ambassador for extraterrestrial
aairs,” charged with making the rst ocial response to any “travelling
aliens” and representing humanity in “inter-cosmic discourse.3 It appears
that international law, even in fragmented or imagined form, does go
“boldly where no man has gone before.”4
Given these layered, over-lapping forms of political and legal
organization, it would be easy to assume that “governance” admits of no
noticeable gaps. Certainly at this point in the nation-state project there
must not, at a bare minimum, remain swaths of geographic territory that
have not been tamed by the state. A quick survey of the world, however,
indicates otherwise. In many places political arrangements exist that
function outside the control of internationally recognized governments.
Examples from recent history have arisen within the geographical areas
of: Afghanistan; Argentina; the Balkans; Brazil; China; Colombia;
Côte D’Ivoire; the Democratic Republic of the Congo; El Salvador;
Guatemala; Guinea; Haiti; Honduras; Indonesia; Iran; Iraq; Liberia;
Libya; Malaysia; Mexico; Northern Ireland; Pakistan; Paraguay; the
Philippines; Uzbekistan; Sierra Leone; Somalia; and Sudan. e Federally
Administered Tribal Areas on the border of Afghanistan and Pakistan, and
the south-central portions of Somalia represent two of the most notorious
examples, but they are not alone. “Zomia,” an ungoverned space in the
southeast Asian highlands rst identied by the Dutch historian William
van Schendel in 2002, purportedly includes Tibet, parts of southwestern
and eastern (Xinjiang) China, northern and northeastern parts of India
including Kashmir, most of Nepal and Myanmar, all of Bhutan and Laos,
parts of ailand and Bangladesh and large areas of Afghanistan, Pakistan,
Tajikistan and Kyrgyzstan.5
3. See Mark Brown, Astrophysicist to be named U.N.’s Alien Ambassador, WIRED.
CO.UK (Sept. 27, 2010), available at http://www.wired.co.uk/news/
archive/2010-09/27/alien-ambassador.
4. e quote is from Star Trek, the idea is from Michael Scharf & Lawerence Roberts,
e Interstellar Relations of the Federation: International Law and “Star Trek e
Next Generation, 25 T. L. R. 277 (1994) (analyzing the use of Star Trek as a
pedagogical aid in teaching international law).
5. See generally J S, T A  N B G: A A
H  U S A (2009); Frank Jacobs, e Undiscovered
Country, N.Y. T (Feb. 14, 2012), available at http://opinionator.blogs.
nytimes.com/2012/02/14/the-undiscovered-country/; see also Samrat, In India’s
North, Youth Crave Global Links, Development, N.Y. T (Mar. 14, 2012),

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