Utrecht law review 13(2)

Introduction

Representations of the (Extra)territorial: Theoretical and visual perspectives Cedric Ryngaert*

Progressive, post-realist scholarship engaging with the ‘end of geography’ has observed that State borders have become porous due to increased communication, travel and migration opportunities,1 as well as the emergence of global, cosmopolitan values.2 Individuals’ primary allegiance may no longer, as a matter of course, be with the State in which they reside or with their fellow nationals. Individuals and collectivities may have relations to, and even duties towards, ‘others’ in far-flung places.3 Borders, in this view, are accidents of history, enclosing an arbitrarily bounded space that is no longer in keeping with the sociological reality of global human interdependency. This mini-special issue of the Utrecht Law Review has set itself the task of inquiring as to what the evaporation of borders means for conceptualizations of (extra)territoriality, sovereignty and jurisdiction.

Admittedly, other authors have also ventured into this field.4 However, without wanting to sound presumptuous, this special issue offers a unique perspective in that it combines theoretical (academic) and visual (artistic) perspectives. On the basis of artistic images produced by the Exterritory art project,5 authors whose expertise sits astride the disciplines of law and philosophy, have been invited to reflect on specific questions of (extra)territoriality. The contributions were presented at a conference organized on 22-23 April 2016 by the UNIJURIS project, a research project on unilateral jurisdiction and global values based at Utrecht University School of Law.6 This mini-special issue is co-edited by Cedric Ryngaert (principal investigator of the UNIJURIS project) and Maayan Amir and Ruti Sela (founding members of the Exterritory art project). Ryngaert has written this introduction from an academic perspective. Amir and Sela provide more interpretative information regarding their artworks, at least regarding one particular incident (the Gaza flotilla) in a piece following this one (‘Representing Extraterritorial Images’).7 To properly understand the contributors’ engagement with territory/territoriality and especially extraterritoriality, it is apt to give a working definition, or at least our understanding of these concepts in this introduction. Territory is not defined in raw physical terms as a bordered or enclosed land area but rather as a conceptual, spatial notion that has historical, geographic and political overtones.8 For our purposes, * 1 2 3 4 5 6 7 8

Professor of Public International Law, Utrecht University, The Netherlands. Email: C.M.J.Ryngaert@uu.nl The research which resulted in this publication has been funded by the European Research Council under the Starting Grant Scheme (Proposal 336230—UNIJURIS) and the Dutch Organization for Scientific Research under the VIDI Scheme (No 016.135.322).

D. Bethlehem, ‘The end of geography: the changing nature of the international system and the challenge to international law’, (2014) 25 European Journal of International Law, no. 1, pp. 9-24.

S. Caney, ‘Global interdependence and distributive justice’, (2005) 31 Review of International Studies, no. 2, pp. 389-399.

See, e.g., on external duties of the EU, from a political theory perspective: E. Eriksen, ‘Three Conceptions of Global Political Justice’ (30 November 2016), ARENA Centre for European Studies, University of Oslo, GLOBUS Research Paper 1/2016 available at <https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2878745> (last visited 24 March 2017).

E.g., G. Handl et al. (eds.), Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (2012). <https://exterritory.wordpress.com/> (last visited 24 March 2017). <http://unijuris.sites.uu.nl> (last visited 24 March 2017).

R. Sela & M. Amir, ‘Representing Extraterritorial Images’, (2017) 13 Utrecht Law Review, no. 2, http://doi.org/10.18352/ulr.379, pp. 7-12.

S. Elden, Birth of Territory (2013), p. 328.

www.utrechtlawreview.org | Volume 13, Issue 2, 2017 | http://doi.org/10.18352/ulr.378 |

Cedric Ryngaert

territory is viewed as a mode and object of governance. The dynamic notion of territoriality is defined as ‘the attempt to affect, influence, or control actions, interactions (…) by asserting and attempting to enforce control over a geographic area.’9 Extraterritoriality then is literally the opposite of, or denial of, territoriality (‘outside’ territoriality), i.e., the attempt to exercise control over persons, situations or areas outside the controller’s territory.

The concepts of territory and territoriality have a close and almost symbiotic relationship with the notion of the State. The State is a collective legal subject that is in the first place defined by its territorial borders.10 In the dominant understanding, the State can exercise its governmental activities on its territory to the exclusion of other States, or put differently, the State has, in principle at least, exclusive territorial sovereignty or exclusive territorial jurisdiction/authority.11 Historically, the formation of the modern State has been conditioned by, and intertwined with, the possibilities to draw more certain territorial borders, possibilities that were boosted by the development of the science of cartography from the 16th century onwards.12 Cartographic techniques (arguably) allowed for a more accurate representation of reality on the ground: distances indicated on maps and the size of places (arguably) reflected more faithfully the actual distances and the actual size of these places. We deliberately use the adverb ‘arguably’ in this respect, as no representation of reality can be neutral. Historically, the political recuperation of ‘objective’ cartographic techniques was undeniably geared towards entrenching political power over faraway corners of the realm, the political allegiances of which had so far been uncertain.13 This outward radiation of the political center’s powers, combined with the demarcation of territorial frontiers vis-à-vis rival centers of power, simultaneously had an inclusive and exclusive aspect: more clearly drawn boundaries included the populace living in the territory within a constructed political community and excluded the exercise of ‘extraterritorial’ authority by adjacent territorial rulers as well as individuals living elsewhere. The brute physicality on which territoriality as a mode of political management was based, inevitably had a naturalizing effect. Over the years, the marriage of the political and the territorial came to be seen as self-evident14 and no longer open to contestation. Ideas of popular democracy and nationalism eventually further strengthened the obvious character of State-based territoriality. The State’s legitimacy was made to hinge on the political participation of territory-based individuals (democracy), or on its realization of the Volksgeist (nationalism). Either way, State rulers were considered to represent the people. The people’s (theoretical) ownership of the State naturally led individuals to socially identify with the bounded territory in which they lived. The relevance of non-territorial, community-based political allegiances crumbled.

Over the last centuries, territoriality accordingly became the political norm and extraterritoriality – which had historically been based on personal links (e.g., on kinship) – the exception. Territoriality and extraterritoriality should not necessarily be seen as opposites, however. They are malleable notions which make allowance for various political framing strategies, as a result of which one and the same assertion of authority could be labelled as territorial by one actor and as extraterritorial (and presumably suspect) by another.15 Moreover, States – the guardians of territory – managed to game the territory-based system and

9 10 11 12 13 14 15

2

R. Sack, ‘Human Territoriality: A Theory’, (1983) 73 Annals of the Association of American Geographers, doi:10.1111/j.1467-8306.1983. tb01396.x, p. 55.

Art. 1 1922 Montevideo Convention on Rights and Duties of States, 165 League of Nations Treaty Series, p. 20.

Island of Palmas case (Netherlands, USA), [1928] 2 Reports of International Arbitral Awards, p. 839 (‘[T]erritorial sovereignty (…) involves the exclusive right to display the activities of a state.’).

See for the long formation period of the territorial State: J. Branch, The Cartographic State: Maps, Territory, and the Origins of Sovereignty (2014).

E.g., R. Ford, ‘Territory (a History of Jurisdiction)’, (1999) 97 Michigan Law Review, no. 4, pp. 843-930.

This was in fact already captured by the statement of the 14th century postglossator of Roman law Baldus that ‘territory and jurisdiction go together as mist to a swamp’. See Elden, supra note 8, p. 36, fn 149.

An example is the controversy over the geographic reach of the EU Aviation Directive, which in 2008 subjected foreign air carriers to an EU emissions trading scheme, insofar as their flights arrived at or departed from an EU aerodrome. In its ATA judgment (2011), the Court of Justice of the EU held that this legal arrangement was covered by the customary law principle of territoriality (Case C-366/10, Air Transport Association of America, [2011] I-13755, para. 101), whereas foreign carriers and States considered it to be extraterritorial in that it covered mileage outside EU airspace. In an interconnected world, any activity may produce global effects, thereby potentially triggering the territorial jurisdiction of a panoply of interested States. However, as these effects are often indirect and the regulating State’s nexus to the situation is accordingly weak, its jurisdictional assertions may easily be denounced as extraterritorial.

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Representations of the (Extra)territorial: Theoretical and visual perspectives

create spatial and personal enclaves of extraterritoriality in order to exempt particular areas and persons from the reach of the (regular) law.

Four examples, one of them historical, could be given here. In the 19th century, Britain created protectorates in Africa not just to take over African kingdoms’ conduct of foreign affairs and protect them against external threats but also to preclude the application of binding British anti-slavery laws (which would apply only in case of full exercise of sovereignty) and to prevent that British nationals would be subject to ‘uncivilized’ African law.16 In the current era, the United States tried to shield itself from accountability under US constitutional and international law regarding its treatment of ‘enemy combatants’ captured on the battlefield in Afghanistan, by relocating them to the non-US, Cuban-leased territory of Guantanamo Bay.17 A similar evasion technique is tried by the UK, which attempts to limit the application of human rights law to not include wrongful conduct that took place in the context of overseas UK military operations,18 and by Israel, which simply denies the applicability of human rights law to the occupied territories.19 Furthermore, throughout the centuries, States have reciprocally accepted that diplomatic representatives accredited to other States are not amenable to suit in the latter (i.e., they enjoy immunity from jurisdiction), not even in respect of clearly territorial conduct,20 as well as that embassy premises are inviolable.21 These rules on immunity and inviolability have an extraterritorial dimension, for they hamper territorial accountability and enforcement.22 Such extraterritorial arrangements have an exclusionary effect – they exclude the normal reach of territorial law. Nevertheless, they hardly weaken the territorial, State-based world order. After all, States rely on them to their greater glory. These arrangements withdraw the usual rule of law protections from certain persons and areas and strengthen State power by limiting State accountability. They further cement the political status quo that is informed by territorial narratives. Thus, both territoriality and extraterritoriality, as currently understood, tend to further entrench State powers and reproduce the salience of boundaries, at times to the detriment of rule of law protections.

As the artwork of the Exterritory project demonstrates, States’ exclusionary extraterritorial ventures may be accompanied by ‘visual extraterritoriality’ stratagems aimed at minimizing accountability arising out of such ventures. Techniques of non-transparency, invisibility, image blockades and ‘black sites’23 may prevent uncomfortable truths about extraterritoriality from coming to light. In its artwork, the Exterritory project tries to artistically represent such techniques, inviting the viewer to reflect on, and unmask, political strategies of obscuring political authority and ultimately to imagine new (re-)presentations of it.

It is the goal of this contribution to reopen the space for contestation of political territoriality and to explore novel, ‘post-territorial’ conceptualizations of the exercise of political authority that may better represent the dramatic technological, ethical and social changes which our world has experienced lately.

In particular, the rise of the Internet and the emergence of virtual, data-driven communities have brought the future of the time-worn notion of territoriality into stark relief. Is territory still an adequate representation of the exercise of authority and of individuals’ allegiance and identity? Is such authority not better represented in a non-territorial fashion, with jurisdiction tracking the formation of ‘transnational’ social and normative communities?

16 I. Van Hulle, Britain, West Africa and the Formation of Imperial International Law (1807-1885), PhD thesis KU Leuven (2016).

17 Although the Supreme Court dismissed the Government’s arguments that the right of habeas does not apply because Guantanamo bay was not on American territory on the basis that it was still under the Government’s control (Rasul v Bush, 542 U.S. 466 (2004)).

Subsequent legislative acts preventing US court jurisdiction over enemy combatants at Guantanamo were overruled: ‘extraterritoriality questions turn on objective factors and practical concerns, not formalism’ (Boumediene v. Bush, 553 U.S. 723 (2008)).

18 The UK has argued that ‘the HRA [Human Rights Act] has no application to acts of public authorities outside the borders of the UK. The Act has, in legal parlance, no extra-territorial application’ (Al-Skeini v Secretary of State for Defence [2007] UKHL 26, para. 4). The European Court of Human Rights, however, has decided that in exceptional circumstances, the European Convention on Human Rights does apply extraterritorially to military operations (Al-Skeini and Others v UK, Decision of 7 July 2011, app. no. 55721/07).

19 UN Doc. CCPR/C0/78//SR/Add.1 (2007).

20 1961 Vienna Convention on Diplomatic Relations (VCDR), 500 United Nations Treaty Series, p. 95, Art. 31.

21 Ibid., Art. 25.

22 Formally speaking, however, it is incumbent on diplomatic personnel to comply with territorial law. Ibid., Art. 25.

23 V. Keating, ‘The anti-torture norm and cooperation in the CIA black site programme’, (2016) 20 The International Journal of Human Rights, no. 7, pp. 935-955.

3

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Cedric Ryngaert

Technological progress in cyberspace and communications may more generally also (further) unlock cosmopolitan sentiments. Modern communication’s transcendence of the traditional boundaries imposed by time and space might nurture individuals’ and collectives’ sentiments of solidarity with distant, nonterritorial others, especially if such communication involves the dissemination of images representing and conveying the suffering of what would otherwise be the unknown other. Such sentiments could yield inclusive rather than exclusive institutional responses unimagined by earlier Westphalian theories grounded on hermetic territoriality. A fine example is offered by the exercise of universal jurisdiction – i.e., domestic jurisdiction not based on a territorial link – over atrocities committed abroad. From the theoretical perspective espoused in this special issue, such jurisdiction has important representative, inclusive and visual dimensions. The State exercising it acts as representative or agent of the international community shocked by the heinousness of the crimes, it includes remote victims within the protective scope of its ‘extraterritorial’ legislation, and it is often triggered by the dissemination of shocking visual images of victims of indiscriminate bombardments of civilian areas. These dimensions, as they pertain to other assertions of authority, also return in the (other) contributions to this issue.

One should understand that the analytical purchase of territoriality is not necessarily lost in the face of these technological and moral evolutions. Even cyberspace, for all its virtual trappings, has a physical infrastructure, consisting of actual computers, servers, cables and human beings running and using the system.24 If cosmopolitan duties, for their part, are not to remain theoretical and illusory, they need physical implementation by actual duty-bearers vis-à-vis actual beneficiaries by means of actual acts of assistance delivered to an actual place on Earth. The discharge of such duties, moreover, may be done most efficiently by institutional actors, of which the territorial State is the most mature and well-organized.

It is arguably more appropriate then to describe our current world as a hybrid of territory and ‘exterritory’. In the digital context, the term ‘onlife world’ has caught on in this respect, a term denoting how ‘[t]he deployment of information and communication technologies (ICTs) and their uptake by society affect radically the human condition, insofar as it modifies our relationships to ourselves, to others and to the world.’25 The abiding challenge facing the ‘extraterritorial’ cosmopolitan programme, is building the bridge to the physical immediacy of duty-bearers and beneficiaries. In the process of translating this programme into actual action, high-minded aspirations may run up against protests from expected cosmopolitan givers and takers alike. When solidarity has to be concretely rolled out, people in the global North may dig in their heels, as the refugee crisis amply demonstrates.26 Conversely, people in the global South may be suspicious of cosmopolitan, Western-devised benevolent assistance programmes, fearing, not unreasonably, a return to the civilizing mission of colonial times.27 It is both scholars’ and artists’ task to unearth, represent and critique, in writing or visually, this eternal tension between our immediate experience of territory, physicality and visibility, on the one hand, and our 24 For instance, data regarding a person’s email accounts are ‘physically’ stored on a server in a particular State. When another State wishes to have access to such data, e.g., in the context of a criminal investigation, it will have normally need to file a request for mutual legal assistance with the State of data location. The US Department of Justice was of the view that it could unilaterally access such data, by issuing a warrant against the US Internet provider (Microsoft) controlling the email service (Hotmail), ordering it to produce relevant data stored on a server in Ireland. A US Court of Appeal rejected this right of unilateral access, however. In the Matter of a Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corporation, Microsoft v USA, Judgment of 14 July 2016, US Court of Appeals for the Second Circuit, Docket No. 14‐2985.

25 L. Floridi (ed.), The Onlife Manifesto: Being Human in a Hyperconnected Era (2015). This collates the work of ‘The Onlife Initiative: concept reengineering for rethinking societal concerns in the digital transition’, a research project organized by the European Commission, but it does not necessarily reflect the official opinion of the EU. Mireille Hildebrandt develops the argument regarding the ‘onlife’ world at greater length in her contribution to this special issue.

26 Also, as regards the aforementioned exercise of universal jurisdiction, it is observed that actual instances of prosecution, let alone trial have been extremely rare – which is probably explained by problems of capacity and political willingness. See for data: M. Langer, ‘The diplomacy of universal jurisdiction: the political branches and the transnational prosecution of international crimes’, (2011) 105 American Journal of International Law, no. 1, pp. 1-49. The exercise of extraterritorial jurisdiction of corporations involved in the overseas commission of international crimes is even entirely absent. Only one (Swiss) investigation has been reported – against the Swiss gold refiner Argor-Heraeus in respect of allegations that it illegally processed looted gold from the Democratic Republic of the Congo, thereby fueling the vicious civil war going there – but in 2015 Swiss prosecutors decided to discontinue the prosecution on the ground that ‘it [was] not clear (…) that the defendants had any doubts as to, or concealed any evidence of, the criminal origin of the gold’. Open Society Justice Initiative, ‘Swiss Decision Undermines Efforts to End Conflict Resource Trade’, press release, 2 June 2015.

27 E.g., the failure of the US-led drive to impose democracy on the Middle East. For a critique of this drive: K. Dalacoura, ‘US democracy promotion in the Arab Middle East since 11 September 2001: a critique’, (2005) 81 International Affairs, no. 5, pp. 963-979.

4

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Representations of the (Extra)territorial: Theoretical and visual perspectives

more abstract aspirations of extraterritory, distance and kosmopolis, on the other hand. It is our hope that the contributions to this special issue help the reader navigate this tension.

Three scholars have been willing to take up the challenge of linking images with legal theory. This has resulted in two articles, one by Mireille Hildebrandt28 and one by Wouter Werner and Geoff Gordon.29 Methodologically, these articles fit in a tradition of ‘post-positivist’ scholarship,30 i.e., scholarship that critiques positivism by relying on other disciplines and narratives, in casu artistic representations. It is recalled that positivism is an epistemic stance pursuant to which objective knowledge is derived from what is (empirically) observable.31 Post-positivists doubt this objectivity insofar as the observer may not be a neutral agent: (s)he approaches the object of observation on the basis of her/his own values and beliefs and thus reaches conclusions that may be biased.32 In legal theory, post-positivists open up a space for critique of ‘the law as it is’ by highlighting its non-neutral content, interpretation and application. In so doing, they catch a glimpse of possible alternative worlds.

Mireille Hildebrandt engages with the challenges posed by the aforementioned ‘onlife’ world – the co‑constitution of cyberspace and physical space – for the exercise of authority and the safeguarding of basic rule of law protections. Problematizing rather than solving, she inquires how law in the onlife world can speak to power, cognizant of the fact that the borders of cyberspace are networked and mobile, and thus possibly not amenable to sustain legal certainty. The challenge for her is to come to grips with the ‘virtual reality’ of the idea of a jurisdictional border, which eventually she considers as aimed at preventing ‘vertiginous insecurity’ and existential anguish. This virtual reality has been actualized as a territorial jurisdictional border, but re-actualizing it in an era of de-territorialized cyberspace is not obvious. She tentatively suggests to reconfigure ‘the role of territorial borders as part of a more complex, multi-layered set of jurisdictions’.

In this process of virtualization and re-actualization, Hildebrandt is inspired in part by earlier philosophical work (Deleuze, Lévy), but also by the artwork Image Blockade, an experiment which examines the brain activity responses of 8200 Israel secret elite intelligence unit veterans to a letter of refusal signed by peers in their unit.33 She argues that brain images produced by machines are just one mediated view of the reality of the brain, creating a virtual reality that should be confronted with other views. At the same time, the reality created by the brain itself is also a virtual one that may meet resistance in real-life scenarios. Her argument is that jurisdictional borders created by collective subjects – composed of aggregate individual brains – are equally virtual and that the process of actualization should be guided by democratic (participatory) and agonistic (resistance-based) processes. Such processes may well produce an actual jurisdictional reality that fundamentally differs from the current territorial order.

Wouter Werner and Geoff Gordon argue that the aforementioned tension between celestial cosmopolitanism and (territorial) immediacy is not new but was in fact foreshadowed by the work, or at least the views, of the ancient Greek philosophers Diogenes and Zeno. While Diogenes presented a ‘cynical’ world view characterized by obstinate local, territorial resistance to conventions, Zeno developed a more programmatic cosmopolitan philosophy that was meant to apply universally. Universality, however, is in need of territoriality and actual institutions to be implemented, while territorial and institutional constraints may at the same time disenchant advocates of pure and even-handed universality. Werner and Gordon illustrate this tension by highlighting the role of the International Criminal Court, which aspires to a universal remit over crimes 28 M. Hildebrandt, ‘The Virtuality of Territorial Borders’, (2017) 13 Utrecht Law Review, no. 2, http://doi.org/10.18352/ulr.380, pp. 13-27.

29 G. Gordon & W. Werner, ‘Between the Dog and the Divine: Resistance and conventionalism in cosmopolitanism’, (2017) 13 Utrecht Law Review, no. 2, http://doi.org/10.18352/ulr.381, pp. 28-36.

30 J. Zammito, A Nice Derangement of Epistemes: Post-positivism in the study of Science from Quine to Latour (2004).

31 For the classic text: J.S. Mill, Auguste Comte and Positivism (1866).

32 See on the political bias of academic research, e.g., J. Zipp & R. Fenwick, ‘Is the academy a liberal hegemony? The political orientations and educational values of professors’, (2006) 70 Public Opinion Quarterly, no. 3, pp. 304-326. In 2017, the Dutch Parliament even adopted a motion instructing the Dutch Academy of Sciences to investigate ‘the restriction of the diversity of perspectives in Dutch science’ on the basis of an initiative of two right-wing members of parliament apparently intent on exposing academia’s left-wing bias.

Kamerstukken II 2016-17, 34550 VIII, no. 120, 2 February 2017.

33 R. Sela & M. Amir, Image Blockade, 2015, video, 38:20 min. <https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/ DVN/ILE4YW>.

5

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Cedric Ryngaert

shocking the conscience of mankind but which is, as a legal-political institution, hamstrung by treaty-based jurisdictional constraints and real-world politics that restrict the selection of relevant situations, as well as State cooperation with the Court.

Werner and Gordon see similar dynamics of cosmopolitanism and territorial immediacy at work in two artworks produced by the Exterritory project, both relating to the Gaza flotilla missions. One work contains footage of preparatory sessions for activists who were about to leave for the 2011 flotilla mission,34 and another contains stills from an Israeli TV news report related to the Israeli capture of the Mavi Marmara,35 one of the ships of the flotilla. The former work takes the perspective of the activists, whereas the latter takes that of (members of) the Israeli Defense Forces (IDF). Both works have in common that they project images of inhumanity, thereby intending to trigger the viewer’s cosmopolitan sentiments. At the same time, however, the works are, through the visual images used, grounded in territorial immediacy too, as a motivation technique to spur relevant actors into actual action. The practical training session is, for one, as Werner and Gordon put it, aimed at ‘empower[ing] the activists to fight with non-violent means for the good cause of the mission’. The graphic video stills, which concentrate on the immediate violence done by the activists to a loyal IDF soldier, are aimed at eliciting cosmopolitan sympathy with the latter’s suffering caused by ‘terrorists’. However, the stills also have an ‘extraterritorial’ dimension, in the aforementioned sense of invisibility and image blockade, in that the face of the soldier is blurred. To a certain extent, this blurring allows the IDF’s extraterritorial action – the Mavi Marmara was intercepted on the high seas, i.e., an area beyond national jurisdiction – to be compounded by masking techniques which limit options for identification and accountability. Still, the work suggests the moral ambiguousness of such second-order extraterritoriality (invisibility), as invisibility may justifiably protect the mere executors (soldiers) of firstorder extraterritoriality devised by military planners, even if these executors are the only physical face of the operation.36 We are grateful that Utrecht Law Review was willing to publish this mini-special issue. We hope the respective contributions have shown how a fruitful intellectual images-informed conversation between artists and scholars can take place. This conversation problematizes our preconceptions of place, space, and territory, but at the same time drives home the point that abstract political governance ideas always need a concrete spatial form. Inevitably, the nexus between governance and space allows for a spatial politics which uses the legal concepts of territoriality and extraterritoriality for political purposes. As can be gleaned from the images and commentaries, such politics is never neutral, it could include or exclude, and it could improve or worsen human security.

34 R. Sela & M. Amir, Scenarios Preparations, 2015, video, 35:20 min. <https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/ DVN/WIM3AS>.

35 Image Blockade (Works and Research Created within the Frame of Exterritory Project), The Center for Contemporary Art, 30 July-26 September 2015, Tel-Aviv. <https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/PPBX1W>. See also G. Peleg, ‘Commando Unit Warrior is Prosecuting: “I Thought They Were Going to Execute Me”’, Channel 2 News, 11 April 2014: <http:// www.mako.co.il/news-law/legal/Article-6cf8a45b4e15541004.htm> (last visited 16 April, 2014).

36 On the basis of a deal struck between Turkey, from which the Mavi Marmara had sailed, and Israel in August 2016, all those involved in the operation would evade accountability. Under the deal, Israel will make an ex gratia payment of 20 million USD to Turkey as compensation for the death of the ten activists killed by the IDF aboard the ship. In return, the deal will constitute ‘full release from any liability of Israel, its agents and citizens with respect to any and all claims, civil or criminal, that have been or will be filed against them in Turkey, direct or indirect, by the Republic of Turkey or Turkish real and legal persons, in relation to the flotilla incident’. At the time of writing, it was still uncertain whether this deal could block a case filed with Turkish courts, in absentia, against four Israeli generals involved in the operation. See ‘Israel and Turkey Formalize Landmark Reconciliation Pact’, Haaretz, 28 June 2016; ‘Victims of Israeli attack on Gaza flotilla fear legal case will be dropped’, The Guardian, 18 October 2016.

6

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Introduction

Representing Extraterritorial Images Ruti Sela & Maayan Amir*

1. Introduction In art works and research produced as part of the long tem art project Exterritory, we present cases in which images of vital evidentiary value were created only to go missing; images produced in the knowledge that they will be expropriated and removed from view. Our work sometimes seeks to experiment with, and sometimes to invent, situations and representations that evoke the absence of the images and the gaps in our visual knowledge.

To put it more broadly, our work attempts not only to articulate the ways in which violence used in the name of law are maintained through a regime of images or a set of restrictions imposed on the representation of such images, but also to confront the political, conceptual and representational limits that sustain this regime and protect it legally. Often these limits are preserved through certain relationships between law, representation and space which the phenomenon of extraterritoriality both produces and represents.

Investigating the notion of extraterritoriality may therefore help to better comprehend these relationships.

This art project was conceived when we decided to screen a video compilation of works by Middle-Eastern artists onto the sails of boats navigating in the extraterritorial waters of the Mediterranean, as a response to the ongoing Israeli-Palestinian conflict. In 2010 we initiated a meeting in the extraterritorial waters of the Mediterranean, to which we openly invited people from diverse disciplines to offer their interpretation of the concept of extraterritoriality and to project art works onto the sails of the participating boats. Extraterritorial waters seemed to us a meeting space that could offer the suspension of the region’s national States borders regimes and enable meetings for artists from conflict areas which the region’s national cross-borders restrictions usually outlaw. After many months of intense research and production, a week before our planned departure date, the Israeli military intercepted the Gaza freedom flotilla in extraterritorial waters.1 It was a flotilla of six vessels carrying humanitarian aid aimed to protest against the Israeli siege of Gaza. Conceived as a high-profile media event, the flotilla organizers had invested in live broadcasting infrastructure and had broadcasters on board. In the course of the military takeover operation, the flotilla satellite connection was cut off from the outside world, ten activists were killed, many were wounded, and thousands of passenger cameras memory cards were confiscated by the Israeli army (and have remained inaccessible since).2 In the aftermath of this event, the importance of realising our project as planned became even clearer. The conjunction in time and space of the two flotillas – both politically motivated, both placing image production at their centre, both marked by the crucial role of extraterritoriality – urged us to look further into the complex politics of extraterritorialities. * 1 2

Ruti Sela and Maayan Amir (email: exterritory@gmail.com) are artists whose collaborative work has been presented at events such as the Biennale of Sydney, the Istanbul Biennial, the Berlin Biennale, and Manifesta, and in exhibitions at Tate Modern, Centre Pompidou, Jeu de Paume, New Museum, and many other venues.

See also in Exterritory, ‘About Exterritory Project’, Exterritory Project, 15 June, 2016, <https://exterritory.wordpress.com/> (last visited 24 October, 2016).

See the report made by the Turkel Commission, The Public Commission to Examine the Maritime Incident of 31 May 2010 (2010), Part 1, pp. 1-36: <http://www.turkel-committee.gov.il/files/wordocs/8707200211english.pdf> (last visited 5 April 2017); Turkish National Commission of Inquiry, Report on the Israeli Attack on the Humanitarian Aid Convoy to Gaza (2011): <http://www.mfa.gov.tr/data/ Turkish%20Report%20Final%20-%20UN%20Copy.pdf> (last visited 6 April 2017).

www.utrechtlawreview.org | Volume 13, Issue 2, 2017 | http://doi.org/10.18352/ulr.379 |

Ruti Sela & Maayan Amir

Our research set out, then, with the goal of liberating images from the control of national sovereignty and exploring the potential of extraterritorial maritime space to do so. The Gaza flotilla incident revealed, however, the way in which armed forces can use the very same space – an un-regulated and therefore relatively unprotected space – to expand sovereign national power and achieve absolute control over the production and distribution of images.

In its accepted legal and political contexts, the concept of extraterritoriality refers to the exemption or exclusion of individuals and of spaces from one legal system (to which they would otherwise be subject) while subjecting them to another such system. (In doing so, the concept of extraterritoriality presupposes, of course, the existence of several competing or overlapping legal systems.) Our proposition is that practices of exemption or exclusion of this sort can be applied to other objects as well, and specifically in this case to visual images. Metaphorically speaking, if the ‘territoriality’ of an image is its visibility, then attempts to ‘extraterritorialise’ an image by excluding it aim to limit the ‘territorial reach’ of the image, i.e. to restrict its visibility. Attempts to ‘extraterritorialise’ the image by exempting it from a legal system, by contrast, aim to free it from the limitations of that system or from the particular visual regime that the system imposes.

2. Scenarios Preparations A year later, in light of the intervening events, we planned to join the next Gaza flotilla. We teamed up with a group organised by a Dutch branch of the NGO Free Gaza, which was going to be sailing to Gaza and on its way was planning a gathering in extraterritorial waters of boats from different destinations that would be sailing together from that point on. Initially, we sought to contribute by adding an intervention to the already-planned gathering and filming the entire process. Our plans shifted to the resulting work, Scenarios Preparations which was composed of footage we had shot in 2011.3 The work Scenarios Preparations shows a series of imaginary rehearsals: improvisational exercises meant to prepare the participants for their anticipated encounter with the Israeli army in extraterritorial waters. These exercises were mostly part directed by a Dutch theatre director and were held at a fringe theatre venue in Amsterdam. Other improvisation exercises, led by one of the organisation’s representatives who had also participated in the 2010 flotilla, took place at a secret location on the Greek island from which the Dutch boat was to set sail; these exercises were dedicated to practising the actual scenarios of engagement with the Israeli army, including specific behaviour guidelines determined by the organisers.

Scenarios Preparations also focused on an intense internal discussion among the participants a day before the planned departure, concerning a leak to a Dutch newspaper with secret details about the sailing plan.

The need to inquire attempts to border images at the intersection of overlapping, sometimes contradicting legal-juridical systems (also national and international), to look for the extraterritorial power of the image, appeared central. To illustrate this, we will briefly describe two scenes from the work. In the first, a quarrel is shown regarding the proper limits of image production and distribution, as the participants disagree on whether the training sessions should be documented, and if so, under which restrictions and ownership conditions – for example, whether the sessions may be documented exclusively by the organisers or also by outside filmmakers or even journalists, and whether release of the filmed footage should be immediate or postponed until after the journey. Those opposing transparency expressed the concern that the footage may prematurely reveal to the public the activists’ personal stress as well as give the Israeli army a tactical advantage when planning the takeover operation. Many were in favour of greater lenience, however, since they themselves intended to film the sessions as news footage or for documentary filming purposes, in effect serving simultaneously as actors and directors. Furthermore, one of the film directors present argued that since the documentation of the actual encounter with the Israeli military would in all likelihood be confiscated, the improvised scenarios would remain the only evidence of the struggle and could later serve as evidence to the non-violent nature of the mission. The debate underscored and epitomized the tension between political action and documentation and the dilemma of which should take precedence. Image 3

8

R. Sela & M. Amir, Scenarios Preparations, 2015, video, 35:20 min. <https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/ DVN/WIM3AS>.

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Representing Extraterritorial Images

production and political action merged and cross-pollinated; limiting the images became indistinguishable from limiting the political action that these images documented. Moreover, in a situation where the visual documentation that could have served as vital evidence would eventually be seized, the prospect of loss of control over image production and distribution leaves the documentation of performances as the only accessible evidence in case of suspicions of human rights violations.

The dilemmas exhibited in this scene re-emerge in another scene from the work, filmed the following day. When asked to freely envisage and prepare for the violent confrontation, an activist playing the role of an Israeli soldier entered the room holding an imagined camera. ‘Would you like some cookies?’ asked the organiser/instructor who was also improvising the role of a fellow Israeli soldier. Another activist, playing himself, repeatedly answered: ‘We need medical attention. Then we can talk about food.’ The imaginary camera, so it seems, was meant to capture staged images that would serve to exonerate the Israeli army from responsibility for its violent acts. This specific kind of image production was added to the arsenal of the traditional weapons of war. Staging conduct according to the laws of war in front of the camera – turning the law of war into a mere script – became a combat technology in itself. In this way, the work ‘Scenarios Preparations’ allowed us to show how the State’s projected control over the production and distribution of images annulled the images’ ability to help reconstruct violations, reducing the accessible visual evidence into mere illustrations of the degree to which each side adhered to rules of wartime conduct.

In the following days, due to sabotage suffered by the boats as well as restrictions imposed by the countries from which the boats were to set sail, the flotilla was cancelled. This further underscored how the fate of the initiative was predominantly decided at the level of images – in the realm of documented intentions, rather than resulting actions.

R. Sela & M. Amir, Scenarios Preparations, 2015, video, 35:20 min.

9

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Ruti Sela & Maayan Amir

R. Sela & M. Amir, Scenarios Preparations, 2015, video, 35:20 min.

3. Exhibition Image Blockade The above-described scenes call attention to the ways in which the extraterritorial laws applied in maritime space may transform into a regime of visual representation, manifesting itself in the production of what we propose to understand as ‘extraterritorial images’.

The endeavour of the State to control the extraterritorial image is further challenged by the ways in which technological advances contest perceptions of the State territory as bounded spaces. In 2014 the story of an unprecedented civic lawsuit against the Israeli army was exposed on the weekend news edition of Israel’s main commercial TV channel, Channel 2.4 The lawsuit was filed by Sergeant Major M, the first Israeli commando who rappelled down from the helicopter onto the Mavi Marmara – the largest vessel of the freedom flotilla. Beaten badly with clubs and poles, then flung from the upper deck to a lower level of the vessel, Sergeant Major M was seriously wounded. His identity could not be established in the official Israeli documentation of this scene, filmed from an Israeli navy boat in extreme long shot and released by the IDF spokesmen unit after the incident. Yet his face was clearly visible in still images taken by the Marmara activists, which were among the very few to be leaked from the boat and which have been circulating worldwide ever since.

In his news interview, Sergeant Major M reported that he was still haunted by the incident: ‘I have been living with it ever since… We are at risk of being injured, of being killed, that is something we take into account. But I, as a fighter, am doing my job and I expect that the system will support me.’ Sergeant Major M’s charge against the Israeli Defense Forces – the first of its kind – was the negligence that allowed his image to leak and circulate widely, causing him ‘irreversible harm’ and preventing him from leaving the 4

G. Peleg, ‘Commando Unit Warrior is Prosecuting: “I Thought They Were Going to Execute Me”’, Channel 2 News, 11 April 2014: <http://www.mako.co.il/news-law/legal/Article-6cf8a45b4e15541004.htm> (last visited 16 April, 2014).

10

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Representing Extraterritorial Images

country out of fear of prosecution or assassination. His report of being haunted by the event – of ‘living with it ever since’ – seems to refer, then, not to memories of the event itself, but to the publicly exposed images which revealed his identity and perpetually placed him at the scene.

Sergeant Major M took great pains to stress that the failure to protect his image was his sole complaint: ‘I very much love the army, and I don’t regret for an instant my participation in this incident. If it were to happen once more, I would definitely go down that rope again.’5 Like many other elite soldiers, he was willing to die in action, yet he was not willing to sacrifice his life while still living – to lose ownership of his own image, created while he was serving his country. In the exhibition Image Blockade, which presented works and research created in the framework of Exterritory, presented at The Center for Contemporary Art in Tel Aviv in 2015, frames from the television interview and news item are exhibited, re-arranging them as a storyboard alongside other elements from research conducted as part of the project and video works including the abovementioned Scenarios Preparations.6 The selected frames show Sergeant Major M, his face darkened, stating his charges and conveying the agony inflicted on him by the loss of control over his exposed image. By freeze-framing the news item footage, the display emphasizes the illustrative character of the convention of darkening the interviewee’s face as an attempt by the State to censor certain images in order to limit their identifying and evidentiary power.

The model of extraterritorial representation and extraterritorial images offered here may be employed to analyse the meaning of this particular episode. What emerges here very clearly is the willingness to sacrifice life, including one’s own, both in order to document and in order to not be documented.

Moreover, for Sergeant Major M, the military’s inability to prevent an image showing the incident and its executers from becoming visible, its failure to control the image’s territorial reach and keep it legally excluded – in other words, its failure to make the image ‘extraterritorial’ – represented not only a breach of contract but a most serious crime. The special conditions of the extraterritorial maritime space in which the takeover operation was set to take place were supposed to enable the military to gain full control over the event’s documentation. By making the images extraterritorial, protected from visibility under the laws of the State, the military were to enhance their ability to evade responsibility for the documented actions, which other legal systems would in all likelihood consider crimes. These goals and conditions were presumably discussed with the soldiers prior to the flotilla takeover; Sergeant Major M was therefore under the impression that the system had failed him. The image, now openly accessible beyond Israel’s borders, has confined him to the borders of the Israeli State. The State’s territorial law has become both his shield and his prison. Such circumstances reveal how those equipped with weaponry and thus with the power to physically control the situation also expect to be in control of the visual evidence, to use national State law in order to keep it out of reach. In such cases, extraterritorial images are tools used to prevent the State’s representatives (soldiers, officials, etc.) from becoming criminals in other territories or in the eyes of international law.

By appearing with his face darkened during his TV interview, it was as if Sergeant Major M was regaining his anonymity, if only within his country’s borders. By doing so, the TV station added yet another censored image that alluded to the confiscated documentation of the original incident. Just as the violence on board the Marmara was mediated via censored images, this testimony was communicated via yet another form of suppressed representation.

After the interview was initially broadcast, further information about the lawsuit was impossible to obtain and its progress, if any, was never covered again in the media. Its representation in the Image Blockade exhibition as a series of still images therefore offers another opportunity to critically reflect on the phenomenon of the extraterritorial image.

5 6

Ibid.

Image Blockade (Works and Research Created within the Frame of Exterritory Project), The Center for Contemporary Art, 30 July-26 September 2015, Tel-Aviv. <https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/PPBX1W>. See also: Peleg, supra note 4.

11

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Ruti Sela & Maayan Amir

R. Sela & M. Amir, Documentation from the solo exhibition Image Blockade, The Center for Contemporary Art, Tel-Aviv, 30 July - 26 September 2015.

Comprising works of art, theoretical studies, interdisciplinary collaborations, and diverse public events and interventions, the project uses the notion of extraterritoriality to criticise power structures and reimagine practical, conceptual, and poetic possibilities. The Exterritory work and the theoretical research have been dedicated to probing extraterritorial conceptions and phenomena as well as to asking what extraterritorial images are and how they operate.

12

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

This article is published in a peer-reviewed section of the Utrecht Law Review

The Virtuality of Territorial Borders Mireille Hildebrandt*

1. Introduction Mitch Kapor – and many before him – proposed that architecture is politics (and politics is architecture).

Whereas Kapor’s architecture referred to the architecture (the multidimensional structure) of complex computing systems,1 earlier references to architecture often referred to the architecture of buildings, cities or physical landscapes.2 This contribution builds on my earlier work, in which I investigated the history and constitution of both territory and jurisdiction,3 republished in the impressive volume put together by Ruti Sela and Maayan Amir on ‘Extraterritorialities in Occupied Worlds’.4 I will assume in this follow-up article that data-driven hyperconnected computing systems as well as political institutions and jurisdictional borders are ‘architectures’, each in their own way, with far-reaching political implications. Readers looking for an in-depth discussion of the underlying argument should study my previous article; an iteration of the entire argument would take up more space than allotted for this article, though I will briefly revisit the argument in Section 4.1.

The architectures of political institutions and jurisdictional borders implicate the idea – if not the possibility – of ‘the political’ itself,5 seen as a realm where individual citizens are free to debate and enact the public good, protected by the constitution of a collective legal subject capable of terrorizing external and internal subjects that threaten life, limb or property (enemy states and criminals).6 As Connoly and Elden have demonstrated, the notion of ‘territory’ does not only originate from notions such as ‘terroir’ (land), but also from ‘terrorize’ (threaten, intimidate),7 connecting external vigilance against other states with the monopoly of violence that constitutes the power of police.8 As discussed in my earlier work, it is such – stately – terror that provides safety and freedom for those within a territory, enabling the constitution of a

* 1

2

3 4 5 6 7 8

Appointed as Tenured Research Professor of ‘Interfacing Law and Technology’ by the Research Council of Vrije Universiteit Brussel at the research group for Law Science Technology and Society (LSTS), and part-time Full Professor of Smart Environments, Data Protection and the Rule of Law at the Science Faculty of Radboud University, Nijmegen. Email: mireille.hildebrandt@vub.ac.be.

Kapor wrote about computer system architecture as politics, referring to the architecture of the internet protocols that have enabled unprecedented types of communication and information exchange across geographical borders, see ‘Mitch Kapor’s Blog » Blog Archive » Architecture is Politics (and Politics is Architecture)’, available at <http://blog.kapor.com/index9cd7.html?p=29>. Lessig wrote about computer code as architecture, calling it one form of regulation, similar to but different from law, L. Lessig, Code and other laws of cyberspace (1999).

Notably U. Beck, Democracy without Enemies (1998), p. 115, who wrote ‘architecture is politics with bricks and mortar’, and L. Winner, The whale and the reactor: a search for limits in an age of high technology (1986), who famously argued that artifacts have politics, without succumbing to technological determinism. On the relationship between law, technology and normativity see Chapter 8 in M. Hildebrandt, Smart Technologies and the End(s) of Law. Novel Entanglements of Law and Technology (2015).

M. Hildebrandt, ‘Extraterritorial jurisdiction to enforce in cyberspace? Bodin, Schmitt, Grotius in cyberspace’, (2013) 63 University of Toronto Law Journal, no. 2, pp. 196-224.

R. Sela & M. Amir (eds.), Extraterritorialities in Occupied Worlds (2016).

The distinction between ‘politics’ and ‘the political’ stems from C. Lefort, The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism (1986). In a democracy, ‘the political’ assumes the institution of a symbolic order that enables ambiguity and thereby novelty, referring to what Arendt called ‘action’ as opposed to labour and work, cf. H. Arendt, The Human Condition (1958).

The idea that politics is constituted by the threat of such brutal force has found its most articulate expression in C. Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (2006). It is, however, not unthinkable that the threat of brutal force is also a precondition for the realm of Lefort’s indeterminate democracy and Arendt’s realm of action. See Hildebrandt (2013), supra note 3.

W.E. Connolly, The Ethos of Pluralization (1995). Cf. S. Elden, Terror and Territory (2009).

On the power of police: M.D. Dubber, The Police Power. Patriarchy and the Foundations of American Government (2005).

www.utrechtlawreview.org | Volume 13, Issue 2, 2017 | http://doi.org/10.18352/ulr.380 |

Mireille Hildebrandt

symbolic order that fosters novelty and uncertainty without succumbing to the existential anxiety that would come from having to defend oneself against both internal and external enemies (think of failed states).

This brings me to the notion of ‘extraterritorial’ – or even ‘exterritory’ – that is crucial to the work of Ruti Sela and Maayan Amir, notably when they sought refuge in extraterritorial waters to reinvent a political sphere that brings together instead of setting apart.9 Their art thereby generates its own politics, carving new paths by imagining an extraterritorial state that violates the law of the excluded middle that institutes the Westphalian order of contiguous sovereign states.10 My aim is to ‘use’ their art as a provocation that helps to revisit the mutual constitution of individual and collective subjects, by refusing to take such constitution for granted, notably in the era of data-driven, hyperconnected computer system architectures. In the end this boils down to the question of how to re-actualize the boundaries of jurisdiction, once territory loses its hold.

In the second section I engage with Sela’s and Amir’s art work, specifically the work Image Blockade.11 I discuss the mutual implications of art, science and politics in terms of the modern geometrical perspective and the concomitant assumptions of visual, mathematical and political representation. These mutual implications will raise the issue of competing perspectives and the disruption of the view from nowhere as a given angle to ground territorial jurisdiction. In the third section such disruption, as provoked by the work of Sela and Amir, will be used to explore the borders of the individual subject, the rise of the multitude and the constitution of collective subjects. This leads us to the fourth section, where – taking architecture as politics seriously – the issue of territorial jurisdiction is taken up as an affordance of – among others – the rise of cartography and the printing press. The fifth section confronts the transformation of the architecture that roots ‘the political’ (cartography and the printing press), by investigating the spatialities of cyberspace and the novel virtual worlds that form the emerging onlife world. This section compares the operation of the rule of law at the level of international law, to see what this can teach us about the cyberspatial disruption that ignores and negates the protection offered by territorial jurisdictional boundaries. Obviously, international law is informed by the Westphalian system of mutually exclusive national jurisdictions (internal sovereignty) and builds on the discrete collective subjects (external sovereignty) that depend on this mutually exclusiveness (internal and external sovereignty are two sides of the same coin). This leads us to the final section, which raises the question of whether ‘speaking law to power’ is possible in a world of overlapping jurisdictions that are no longer constituted by mutually exclusive territorial boundaries. This is a rearticulation of the question of how to re-actualize the boundaries of jurisdiction, once territory loses its hold.

9 See information on the initial project: <https://exterritory.wordpress.com/background/> (last visited 27 March 2017).

10 Though it has been argued that the idea of mutually exclusive jurisdiction is a 19th-century reconstruction of sovereignty, rather than a 17th-century invention, e.g. S. Elden, The Birth of Territory (2013), p. 310.

11 R. Sela & M. Amir, Image Blockade, 2015, video 38:20 min. <https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/ DVN/ILE4YW>. This work is referred to in the introduction of this special issue, as written by the artists (R. Sela & M. Amir, ‘Representing Extraterritorial Images’, (2017) 13 Utrecht Law Review, no. 2, http://doi.org/10.18352/ulr.379, pp. 7-12). They describe the work at more length as follows: ‘In September 2014, veterans of Israel’s elite army intelligence unit called ‘8200’, many of whom were still on active reserve duty, signed a letter publicly addressing the State’s political and military leaders and declaring their refusal to continue taking exploitative action against Palestinians in order to maintain military control of the occupied territories. Though they were refusing to continue their military service in order to instigate a policy change, the signatories were still committed to upholding national security and therefore adhered to censorship laws and did not reveal their identity. As a consequence, all media interviews with them were performed with their faces obscured. Image Blockade documents an experiment initiated in collaboration with neuroscientists at the Weizmann Institute of Science. The subjects of the experiment consisted of two groups: other veterans of the 8200 intelligence unit and a random control group. The participants had their brain activity scanned using MRI technology while watching clips from media interviews with the dissidents. These reports had been approved for broadcast by military censors, but we inserted additional information that most likely would not have passed the military censor. The subjects of the experiment were asked to identify which clips had been altered and what would or would not have been censored. Each participant’s brain activity was measured while viewing the interviews. The work explores issues of censorship, the various conventions of image restraints through which it is mediated while examining how involvement in a system of secrecy and in blocking information influences the visual and auditory cortices. More than a scientific inquiry, we use the situation to reflect on issues of insubordination, forms of interrogation and of mediation of testimony, legal and illegal violence and its connections to trying to restrict the power of the image. Also conceptually, as the censorship forbids revealing 8200 faces, we were interested in the different meanings that arise from the choice to instead show the 8200 brains’ activity, this in a way using their brain as a mask.’

14

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

The Virtuality of Territorial Borders

2. Art, science and politics: representation, presentation, re-presentation 2.1. Geometrical perspectives in art and science and geography The conference that inspired this special issue of the Utrecht Law Review addressed representation in its title,12 thus taking the ‘classical’ point of view regarding art, science and democratic legitimacy. The idea that art re-presents or mirrors reality instead of presenting its own reality stems from the ‘discovery’ of the linear perspective in Renaissance Europe. Architect Filippo Brunelleschi (1377-1446) elaborated a way to depict objects in relation to a vanishing point, based on the fact that they shrink depending on their position and distance from the eye. Perspective – in this sense – was enabled by a geometrical take on how we see, challenging painters to adopt methods that re-enact this particular perspective in their work. Interestingly, geometrical methods also informed early modern science, as notably and subtly described by Vico (1668–1744), who already warned against reducing human knowledge to what can be understood based on geometrical deduction and construction. The quest for objectivity that is inherent in the geometrical method (taking a third-person perspective on what an individual may perceive and know) returns in the rise of cartography as grounded in the so-called birds-eye perspective that places geographical topoi in relation to each other from a helicopter perspective. As with the geometrical perspective in art and science, this afforded a representation of the world in a structured way, thus enabling individual persons to navigate their world in a new manner, with a new kind of oversight, allowing one to position oneself on the surface of the earth and to estimate one’s relation to other entities on this surface (cities, roads, rivers, lakes, seas and various types of land). As any roboticist can tell you, mapping one’s environment is crucial for navigation, for mobility. Not only to direct our movements and to stay on course, but also to prevent us from stumbling over and running into other objects. Especially where these objects are subjects capable of moving themselves, mobility is a major challenge. On another scale, once geographical mapping enhanced our navigational toolkit (together with, most notably, the compass), our understanding of the world and our ability to seek control over demarcated lands was radically altered.

One of the reasons why the art of Sela and Amir disturbs our grasp of reality, is that it refuses to supply a map.13 It avoids representation, disrupting our sense of place, instead presenting us with a variety of points of view without providing the overview. In a sense, their art extraterritorializes our sense of place, shifting perspective from inside to outside before telling us about the borders that are crossed, and without telling us right from wrong. Instead they leave it up to us – the spectators – to come to terms with the confusion of territory, the terror of violence and the external view of the conventional borders that constitute our understanding of reality. This move from representation to presentation, refusing to merely reiterate what has been presented before, may be a chance, an opportunity, an occasion to re-view traditional perspectives on territory, sovereignty and jurisdiction. Instead of confirming these core tenets of our world order, the artists undermine them by depriving us from the vanishing points of both international and municipal law.

2.2. Representing reality: what kind of loyalty to whose reality?

Before taking up the challenge of the disruption of the bond between internal and external sovereignty, we need to linger briefly on the relationship between a representation and what is represented. A geometrical perspective assumes distancing oneself from any of the objects, entities or subjects crowding a space, it suggests an effort of decentralization – though one could also argue that the vanishing point, the bird’s position or the axioms of a mathematical theory become the new centre. It is critical to admit that the geometrical perspective is not a passive, neutral description of reality but a productive reconfiguration of

12 ‘Representations of the (Extra)territorial’, International Conference 22-23 April 2016 at Utrecht University (the Netherlands).

13 I kindly ask the reader to check out the video installations that this article was asked to engage with, see note 11, supra. See also C. Ryngaert, ‘Representations of the (Extra)territorial: Theoretical and visual perspectives’, (2017) 13 Utrecht Law Review, no. 2, http://doi.org/10.18352/ulr.378, pp. 1-6.

15

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Mireille Hildebrandt

our perception and cognition of reality.14,15 Not any reconfiguration, but one that enables us to navigate our world. This implies that representation requires a kind of loyalty to the reality we seek to describe, to map and to put into perspective. Which cartography we employ depends on the flight of the bird, what mathematical theory we will demonstrate may depend on the level of abstraction (how many and which axioms we accept). This also raises the issue of whose reality we aim to configure: that of Europe, Africa, Japan, that of Euclidian of Euler’s mathematics, that of the medieval populus christianus or renaissance art? Despite the fact that representation may decentre and objectify, we must still establish the position that enables this and clarify how this position shapes the perspective taken. There is – in terms of Thomas Nagel – no ‘view from nowhere’.16 Perhaps the most pivotal rendering of the relationship between the vanishing point of renaissance painting and architecture can be found in the work of Escher, whose brain teasers make us walk up on stairs that unequivocally take us to the ground floor.17 2.3. Democracy thrives on agonistic re-presentation of a multifocal reality The issue of representation returns, of course, in political discourse. Democratic theory is often if not always justified in terms of representation. Either as a matter of aggregation of given opinion (proportional representation), as a matter of deliberation (public reason as a road to an enlightened representation), and/or as a matter of participation (enabling different voices to present their positions, until a shared representation of the common life has been constructed).18 This view of democracy depends, however, on the Westphalian cartography of the political landscape. It assumes collective subjects that are free to decide on their own version of the common life, unhindered by other collective subjects (internal sovereignty and the principle of non-intervention), while respecting a similar right for other collective subjects (external sovereignty, again constituted by the principle of non-intervention). Here we run into the constitution of borders, the dividing lines between the collective subjects that ‘make’ our world order and determine the ‘we’ of a democratic polity. I will return to this point below. For now, following up on the idea of representation, we have to make up our minds on how political representation relates to bird’s eye perspectives, mathematical deduction and the vanishing points they share with the geometrical perspective in the arts. Once we understand that these perspectives are not neutral, but require a positioning of their vanishing point (painting), assumptions (cartography) or axioms (maths), it becomes crucial that these vanishing points are in tune with the collective that orients itself on them. This is – again – not merely a matter of effectiveness or correctness but also a matter of loyalties and the willingness to take the point of view of others. Mouffe’s agonistic reinterpretation of democratic theory,19 and Dewey’s dynamic understanding of democratic publics,20 may help us to comprehend that the presentation of different voices, perspectives, concerns, understanding and fears must be confronted, if we wish to articulate a representation that creates room to address them.

Our shared reality is necessarily multifocal and our ability to rise above our situatedness in time, space and overlapping webs of meaning should not be understood as denying or ignoring the gravitational force of our own subjective outlook. On the contrary, the multitude of our embodied and embedded positions is the iterative, agonistic starting point of any robust collective subject. Representation (taking the observer’s position) depends on presentation (as the observer presents her representation), and cannot – therefore – be taken for granted.

14 On the Eurocentrism of the usual world map, see e.g. <http://sc2218.wikifoundry.com/page/Eurocentrism+in+World+Maps> (last visited 27 March 2017), and e.g. G. Henderson & M. Waterstone (eds.), Geographic Thought (2008). See also E. Cresci, ‘Google Maps Accused of Deleting Palestine – but the Truth Is More Complicated’, The Guardian, 10 August 2016, available at <https://www.theguardian.com/ technology/2016/aug/10/google-maps-accused-remove-palestine> (last visited 27 March 2017).

15 On the geometry of the political: Elden (2013), supra note 10, pp. 290-321 and Elden (2009), supra note 7.

16 T. Nagel, The view from nowhere (1986).

17 See the WIKI: Math and the Art of MC Escher: <http://mathstat.slu.edu/escher/index.php/Depth_and_Perspective> (last visited 27 March 2017).

18 M. Hildebrandt & S. Gutwirth, ‘(Re)presentation, pTA citizens’ juries and the jury trial’, (2007) 3 Utrecht Law Review, no. 1, http://doi.org/10.18352/ulr.35, pp. 24-40.

19 C. Mouffe, ‘Deliberative Democracy or Agonistic Pluralism’, Department of Political Science, Institute for Advanced Studies, Vienna (2000).

20 J. Dewey, The public & its problems (1927).

16

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

The Virtuality of Territorial Borders

3. Extraterritorial representations: the war of images 3.1. Illusions of transparency between image and calculation Again, before moving into the territory of jurisdiction, let me connect with the art project that informs this article, to highlight the extent to which individual human subjects are co-constituted by the technologies they employ. My argument will be that current technologies challenge this constitution, thereby also challenging the constitution of a collective subject (notably the nation state).

In their work Image Blockade, the artists show the brain behaviours of 8200 Israeli secret elite intelligence unit veterans. Instead of merely asking them how they feel about fellow veterans who signed a letter of refusal, their response was measured by means of brain imaging technologies, conducted by neuroscientists at the Weizman Institute of Science. In Bomb Magazine Maayan Amir and Ruti Sela explain:21 ‘We sought to raise questions concerning the ways sensory regions are activated differently in light of one’s involvement in a system of state secrecy and devotion to maintain national security. To an extent, we also wished not only to look at the participating subjects as witnesses of their experiences, but also to ask how the senses themselves testify.’

An interesting question here is what is representing what, or who is representing what, or what is representing whom? Secret services are about making transparent what remains hidden in the process of conspiring against national security; for that reason, secret services are not transparent about their own operations. This requires a deeply ingrained professional loyalty of its employees, willing to keep secret what is deemed classified, in order to protect fellow employees as well as the nation. I understand the art project as an investigation of how this loyalty affects their perception, and of how their brains help to reconfigure their reality. This, however, must not end up as an opposition between what veterans say they feel and what – according to the brain images – they ‘really’ feel. ‘[T]he senses themselves testify’22 to nothing; rather, their brain behaviours leave a machine-readable print, which is subsequently interpreted by algorithms and/or human observers. It may seem as if the mind of these veterans is made transparent in the process of imaging their brains, but this would naïvely assume that we are our brains. It eradicates the role of the observer in articulating what the brains actually ‘do’ and her (the observer’s) role in how this must be related to the loyalties of the veteran. Apart from that, brain imaging is based on calculations, on computational mediation. The images are not an unmediated view of the reality of the brain. Therefore, the transparency it offers must be scrutinized, confronted with alternative visualizations, and with the own point of view of the human participant.23 3.2. The virtual reality of the brain The artists show that our brains can be ‘read’ by computational machines, providing a virtual image of what our brains ‘do’ while we talk about things we may want to keep a secret. The image is virtual in the sense that it is mediated by a computing system, there is no way to observe these behaviours with the naked human eye. Similarly, our brains can be tricked into experiencing a ‘virtual reality’ (VR) based on VR wearables or, for instance, flight simulators that manage to manipulate our brain behaviours such that we enter an artificial world that can easily be mistaken for the ‘real’ one.24 Such VR is now used to train pilots, surgeons, and military personnel, or employed for entertainment.

We should not forget, however, that our brains are continuously producing the reality we need in order to test the output of this type of simulation machines; we do not want the pilot to crash the plane or the 21 T. Heiman, ‘Exterritory. The space of politics’, an interview with Maayan Amir and Ruti Sela in Bomb Magazine, 27 April 2015, <http://bombmagazine.org/article/0563415/exterritory> (last visited 27 March 2017).

22 Ibid. (the quotation refers to the text that has just been cited above).

23 Taking into account that even the ‘own view’ cannot be ‘measured’ without mediation, see e.g. K.F. MacDorman et al., ‘Does Japan Really Have Robot Mania? Comparing Attitudes by Implicit and Explicit Measures’, (2008) 23 AI & SOCIETY, no. 4, pp. 485-510.

24 This – productive – mistake has drawbacks, knows as ‘virtual reality sickness’ or ‘cybersickness’, see B. Allen et al., ‘Visual 3D motion acuity predicts discomfort in 3D stereoscopic environments’, (2016) 13 Entertainment Computing, pp. 1-9.

17

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Mireille Hildebrandt

surgeon to damage parts of the brain when removing a tumour. The reality our brains create, together with and as a part of our body, is also a virtual reality. While navigating our world we are continuously testing this – our – virtual reality, and this is what makes us smart. Our reality thus resides on the cusp of the virtual reality we produce and the resistance we encounter when testing it.

3.3. The border of the sovereign subject Phenomenology has a long history of paying attention to our situated and embodied existence, building on Husserl and Merleau-Ponty, further developed with respect to our technological environment by Ihde and, for instance, Stiegler.25 One way of framing these insights is to refute the conventional understanding of the self as something that is contained within our ‘skinbag’, as Clark coined it.26 Clark’s analysis of the boundaries of our mind is all the more interesting as it comes from a mind steeped in the modern tradition of physicalism. His point is that the self is actually extended whenever we outsource part of our cognition to the technologies we employ; these tools become part of who and what we are, thus reconfiguring the borders of the human subject. For a postphenomenologist such as Ihde this is a trivial observation, because what makes us human is our ability to make and handle tools that shape both our environment and our selves: technology reinvents us while we invent it.27 The point should be which technologies reconfigure us how, and whether currently emerging technologies confirm or negate how we wish to develop as selves and societies. Looking at selves this way requires us to reorient our understanding of the sovereign subject. First, the human subject does not precede society and its technological backbone. Rather, both are constituted and shaped by the technological infrastructure that reigns. Second, unless we succumb to technological determinism, we are capable of resetting, discarding or transforming our technological infrastructure even if this is no small feat. Third, the self does not stop where the skin ends. Even if this may be the case for plants, humans are in a persistent process of border-making and these borders depend on the habits we develop, question and change. In turn, these habits are induced, enforced, inhibited or overruled by the technologies we use. The reading mind, as neuroscientific research has shown, develops its particular habits of abstract thought while interacting with the technologies of the word.28 We cannot take for granted that novel information and communication infrastructures, such as those employing data-driven intelligence, have the same ‘affordances’ as those of the script, cartography and the printing press. This entails that these novel technological infrastructures will change the habits of our minds and thus our selves.

If selves are best understood as co-constituted by the tools they employ, it makes sense to investigate what this means for the collective subject of a particular jurisdiction. That is, if the self is no longer seen as having fixed borders (the skin), we have to revise our understanding of territorial borders for collective subjects too. We may have to admit that these types of borders are connected with the affordances of cartographic technologies that are running out of steam and will be increasingly replaced by those of internet-related technologies that disrupt distance in both time and space, thus also disrupting ‘traditional’ makings of collective subjects, based on territorially bounded mutually exclusive states. This is not to suggest that collective subjects can do without borders, but rather to emphasize that the dynamic constitution of those borders will increasingly digress from the geographical concept of territorial borders. It is also to raise the spectre of a multitude without collective subjects such as territorial states, instead bound together by shifting assemblages of networked individuals that thrive on ephemeral loyalties managed by a data-driven environment.

25 E. Husserl, The Crisis of European Sciences and Transcendental Phenomenology; an Introduction to Phenomenological Philosophy (1970); M. Merleau-Ponty, Phénoménologie de la perception (1945); D. Ihde, Technology and the lifeworld: from garden to earth (1990); B. Stiegler, ‘Die Aufklaerung in the Age of Philosophical Engineering’, in M. Hildebrandt et al. (eds.), The Value of Personal Data. Digital Enlightenment Forum Yearbook 2013 (2013).

26 A. Clark, Natural-Born Cyborgs. Minds, Technologies, and the Future of Human Intelligence (2003).

27 D. Ihde, Ironic Technics (2008) and D. Ihde, Technology and the lifeworld: from garden to earth (1990).

28 On neuroscientific research in the reading brain: M. Wolf, Proust and the Squid: The Story and Science of the Reading Brain (2008). On the technologies of the word: W. Ong, Orality and Literacy: The Technologizing of the Word (1982). On the relationship between script and abstract thought: J. Gleick, The information: a history, a theory, a flood (2010).

18

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

The Virtuality of Territorial Borders

4. The making of jurisdiction and the border of the virtual world 4.1. Territory defined in terms of jurisdiction, terroir and terror29 There are those who believe that a collective subject can only exist on the basis of territorial jurisdiction. In previous work I have argued that territorial jurisdiction is a historical artefact, closely aligned with (1) the ‘invention’ of the monopoly of violence, (2) the proliferation of written text as a result of the widespread employment of movable type (the printing press), and (3) modern cartography. In his magnificent work on the Western Legal Tradition, Harold Berman traced the roots of the modern state in the rise of the Roman Catholic Church from the 11th century onwards.30 The idea of a unilateral competence to legislate rather than merely adjudicate stems from Pope Gregory VII, who promulgated the Dictatus Papae in 1075 – thereby seizing power and instauring a new type of monopolistic jurisdiction. This jurisdiction was not at all territorial, but firmly grounded in either the content (ratione materiae) or in the subordination of the clergy (ratione personae). Based on these, a new type of jurisdiction was consolidated regarding the populus christianus, without necessarily infringing upon the rights of landlords, kings or emperors (though the mere fact that land-based jurisdiction overlapped with the jurisdiction claimed by the church caused major conflict). In the same period the so-called peace or truce of god was promulgated and consolidated, which – according to Berman – prepared the way for a monopoly of violence against feudal vigilance. As printed text proliferated with the uptake of the movable type, it became possible to address a public that is removed in time or space. The distantiation between author and reader that is inherent in written text, and scaled extraordinarily with printed text, enabled a ruler to ‘rule over’ a far more extensive population.

In combination with an emergent monopoly of violence, written law grounded the rise of territorial polities with clear and simple geographical borders, capable of terrorizing those within its jurisdiction into obedience, as long as the sovereign could offer protection against external and internal violence (enemies and criminals). For this reason Connollly and Elden trace the concept of territory to terror, in addition to the more common derivation of terroir.31 The curious amalgam of terrorizing the outside (safeguarding external sovereignty between states) and the inside (safeguarding internal sovereignty) was made easy, if not possible, by the modern invention of cartography. As Ford has described in his Law’s Territory, A History of Jurisdiction ‘the rigidly mapped territories within which formally defined legal powers are exercised by formally organized governmental institutions’ are a recent invention,32 contingent on the modern, scientific demarcation of distinct territories that do not overlap and leave no gaps. Ford detects four dimensions in territorial jurisdiction that correlate with the affordances of cartographic mapping: (1) territorial demarcation overrules personal status, (2) it creates abstract boundaries, that define an empty space, thus (3) producing an inside and an outside that enables exclusive control over the inside, in turn (4) resulting in a gapless map of contiguous jurisdictional territories. This entails that there is no inside that is not an outside and, crucially, that subjects and objects cannot be in more than one ‘inside’. Jurisdiction as-we-know-it, therefore, is made and not given. This may sound trivial to some, but the point here is how it has been made and by which means. I am not referring to military achievements, but to the underlying cognitive extensions (maps) that enabled a world order of contiguous sovereign states.

We should not be surprised that a linear geometric perspective that divides people and things by ‘keeping’ them in mutually exclusive territories runs into problems in the era of an internet that, instead, enables realtime groupings across any and all kinds of borders, creating dizzying network effects, while nourishing both mobility and reconfigurations of various types of alignment. To sustain or reinvent world order, jurisdiction

29 This section builds on M. Hildebrandt, ‘Extraterritorial jurisdiction to enforce in cyberspace? Bodin, Schmitt, Grotius in cyberspace’, (2013) 63 University of Toronto Law Journal, no. 2, pp. 196-224.

30 H. Berman, Law and Revolution. The Formation of the Western Legal Tradition (1983).

31 See note 7, supra.

32 R.T. Ford, ‘A History of Jurisdiction’, (1999) 97 Michigan Law Review, no. 4, pp. 843-930.

19

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Mireille Hildebrandt

will have to be re-made, raising the issue of the borders of the virtual world, which – in turn – begs the question of what is a virtual world.

The term virtual is used in a myriad of ways, though most often in contrast to ‘real’ in the sense of ‘physical’. The term ‘virtual reality’ indicates a reality that is produced by means of software to create an alternative world in which people can immerse themselves (online gaming, the worldwide web, online social networks, cyberspace in general), or an augmentation of the physical world by means of extra layers of information that can be easily accessed (e.g. Google Glass). By now, the so-called virtual world has penetrated, enhanced, reduced and mutated the physical world so drastically that it should be clear that the virtual and the physical worlds interpenetrate and disrupt each other semi-permanently. Think of smart grids, self-driving cars, cloud robotics, 3D-printing and military drones.

It makes sense, therefore, to redefine what we mean by virtual, seeking its meaning in contrast to what is actual instead of opposing it to what is real. Building on Deleuze and Lévy,33 virtual refers to something that is real, but not yet actualized, taking into account that actualization can take place in different ways, depending on the interactions with an environment. A seed of an oak, for instance, is a virtual oak. It is real in the sense that it contains the potential to develop into an oak tree, and not the potential to develop into a birch. It is, however, not an actual oak and whether and how it will actualize into an oak tree will depend on where the seed finds itself (the terroir, the climate, the weather, other seeds, plants or trees taking its food or sunlight). Deleuze and Lévy oppose the notions of virtual and actual (both of which they view as real), to the notions of possible and real. In their vocabulary, what is possible is not yet real, but its realization is not a creative process – it is merely a matter of changing its status from possible to real. For instance, a deterministic computer program may prepare a possible decision. Once the decision is produced it is real, but due to its determined nature there is no process of actualization, no creative process; the decision is ‘merely’ realized.34 The process of actualisation can be reverse engineered by way of a thought experiment, which entails seeking the question or problem to which the actual is an answer. This is the process of virtualisation. In the context of this paper the idea of virtualization is critical for the issue of borders. The idea of a jurisdictional border is a virtual reality, whereas a concrete, territorial jurisdictional border it an actual reality. This concrete border results from a particular process of actualization – which depends on a number of concrete interactions between those involved in ‘making’ a specific jurisdiction. Actualization and virtualization are – as far as human reality is concerned – closely linked with institutionalization. Whereas a tree cannot turn back and become a seed, human institutions such as money, contract or marriage mediate between a process of virtualization (which institutes the idea of money that informs the meaning and thus the reality of monetary transactions) and actualization (which enables buying goods, setting or agreeing on a price, lending and borrowing money or even seeking interest). If we view the idea of the boundary of a jurisdiction as a virtual reality, we may reinvent its actualization beyond the current actualisations, which are determined by geographical demarcation. In the light of cyberspatial disruptions of territorial space, this is what we may have to learn: jurisdictional borders must be actualized in tune with the networked spatiality of the onlife world. The question is whether this is possible, or whether this networked spatiality incapacitates the virtuality of jurisdictional borders, leaving us with a multitude of individuals – or even dividuals – no longer capable of forming stable collective subjects.35 4.2. The making of the freedom of the high seas: passage or property Cyberspace has been likened to Grotius’ high seas, and his Mare Liberum (the freedom of the high seas) has inspired the potential of a Cyberspace Liberum. Grotius depicted the high seas as an unregulable space not amenable to appropriation (in Grotius’ terms: occupation). Interestingly, Grotius argued that the high 33 G. Deleuze, Difference and repetition (1994). P. Lévy, Becoming Virtual. Reality in the Digital Age (1998).

34 It would be interesting to investigate what this means for machine learning, which may indeed involve a process of actualization, depending on what type of machine learning is at stake (supervised, unsupervised) and on the way the input data has been collected, cleansed and structured.

35 On data-driven societies as assemblages of dividuals see G. Deleuze, ‘Postscript on the societies of control’, (1992) 59 October, pp. 3-7.

M. Hildebrandt, ‘Profile Transparency by Design: Re-enabling Double Contingency’, in M. Hildebrandt & E. de Vries (eds.) Privacy, Due Process and the Computational Turn: The Philosophy of Law Meets the Philosophy of Technology (2013).

20

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

The Virtuality of Territorial Borders

seas resist being an object of either private of public property while also arguing that they should not be monopolized by individual states. This curious amalgam of descriptive and prescriptive argumentation returns in the writings of early cyberspace exceptionalists,36 who claimed that the technical architecture of the internet cannot and should not become the object of national or international regulation. In both cases this may be related to the fact that even if the description is correct, attempts to occupy (parts of) either the high seas or the internet could disrupt the landscape of sovereign states to the point where such occupation becomes possible. If the nature of sovereignty is transformed, the meaning of an occupation will also change. It may be precisely this transformation that calls for resistance. Grotius claimed that the high seas must be seen as a passage, enabling a world order of contiguous sovereign states engaged in free trade, thus nourishing interdependence and mutual flourishing. The eschatological overtones in Grotius high expectations of a free world trade return in the writings of the cyber utopians: the internet will connect people across national borders, enabling a new type of free intercourse and a new type of freedom to disseminate and access information.

4.3. The borders of the high seas and those of virtual worlds In her seminal text on cyberspace(s), Julie Cohen commences by observing that both exceptionalists and non-exceptionalists perceive cyberspace (or the virtual world) as a separate place. This, she finds, flies in the face of the experienced spatiality of cyberspace, that is ‘neither separate from real space nor simply a continuation of it’.37 Her next move is to dig deeper into the idea that human agency is space-bound, an idea that has been used to defend territorial borders as necessarily defining jurisdiction, also in cyberspace.

Cohen, however, finds that:38 ‘To say that humans reason spatially is not to say that we are placebound, or property-bound, but simply to say that we are embodied, situated beings, who comprehend even disembodied communications through the filter of embodied, situated experience.’

In one stroke she accepts cognitive psychology’s findings on the spatiality of human action and perception (to navigate the world we must be aware of what things and subjects we may run into, and orient ourselves to decide where we are heading), while nevertheless rejecting that this entails being bound to one place or being committed to private or public property (which entails exclusive control over an identifiable good).

Finally, Cohen concludes that the issue is not what kind of (separate) space cyberspace is, but how the networked character of what we call cyberspace interacts with our embodied space, and whether and how this requires regulation (and, by whom).

Following Cohen, my starting point for examining the borders of cyberspace is the simple but easily overlooked fact that cyberspace is always experienced by embodied and situated individuals. This entails that online interactions have consequences in the embodied world, meaning they can affect reputation, employability, creditworthiness, energy usage, health-risk assessment etcetera. Indeed, the current interpenetration of cyberspace and the physical world generates a myriad of connections and interactions between cyberspatial entities and the institutions that crowd our offline world. The concept of institution, here, does not refer to a formal type of organisation, but to the sociological concept of a consolidated and identifiable pattern of interactions that constitutes a conglomerate of mutual expectations and codetermines our action-potential.39 Institutions in that sense give meaning to our actions by allowing us 36 D.G. Post, ‘Anarchy State and the Internet’, (1995) Journal of Online Law, Article 3, available at <http://papers.ssrn.com/sol3/papers. cfm?abstract_id=943456> (last visited 27 March 2017), but see J. Goldsmith & T. Wu, Who Controls the Internet? Illusions of a Borderless World (2008), H. Holland, ‘The Failure of the Rule of Law in Cyberspace? Reorienting the Normative Debate on Borders and Territorial Sovereignty’, (2005) 24 The John Marshall Journal of Information Technology & Privacy Law, no. 1, and M.L. Mueller, Networks and States: The Global Politics of Internet Governance (2010).

37 J.E. Cohen, ‘Cyberspace As/And Space’, (2007) 107 Columbia Law Review, no. 1, p. 213.

38 Ibid.

39 E.g. F. Rojas, ‘Institutions’, Oxford Bibliographies (Oxford Index, 26 August 2013), <http://www.oxfordbibliographies.com/display/id/obo9780199756384-0132> (last visited 27 March 2017).

21

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Mireille Hildebrandt

to anticipate how others will ‘read’ them and what consequences they will probably have. Think of the institutions of employment, marriage, credit, healthcare, insurance, science, education and literature, which all give meaning to our interactions by constraining as well as enabling them. An action (getting married, taking a job, borrowing money) ‘counts’ as a certain kind of action based on such institutions. If registered in the civil registry marriage will also have legal effect, for instance, reconfiguring the liability of either partner as that of a couple. Institutions, closely aligned with speech acts and acts of writing, thus create amalgams of consolidated legitimate expectations, shaping the future, providing foreseeability and – if a legal institution – legal certainty. A jurisdictional border institutes the jurisdiction it demarcates and as such it is an institution, depending on an assemblage of language games that make sure we all understand the consequences of crossing such a border (entering or leaving a specific jurisdiction). This, however, is less clear when crossing the non-territorial borders of cyberspace. Whether it functions as an extended or disruptive market place, library or public square, its computational backbone and data-driven applications continuously interrupt and transform the risks, the opportunities and indeed the capabilities of its users, irrespective of their geolocation. In fact, the term ‘user’ seems out of place for an infrastructure that is not only used by citizens and consumers but also uses them, notably their behavioural and posted or submitted data. In the meantime, the immersive character of chatting, email, search, gaming, watching and uploading videos etcetera invites terms like ‘inhabitant’ or ‘participant’. Interestingly, we have no problem accepting that a person may simultaneously use different appliances, and participate in different practices in the course of time, whereas we may be less aware that people actually inhabit different spaces at the same time when simultaneously participating in different practices. This is, however, what the hybrid spatiality of cyberspace affords, as it is mixed up in our physical and institutional environment. Clearly we can collapse distance in time and physical space, inhabiting different spaces, speaking with others on the other side of the world, conducting professional activities while at home, connecting with friends of friends of friends of colleagues of colleagues or even colleagues of friends of colleagues – etcetera. While crisscrossing the dynamic borders of cyberspace, our embodied existence is not only inextricably wound up with a number of consolidated institutional arrangements (as in the offline world), but is now also inexorably tied up with unforeseeable network effects (across cyberspatial contexts). Indeed, speaking of an offline world is becoming an increasingly invidious or precarious description, an anachronism oblivious of the computatio­nal operations that take place behind the surface of screens and things, and blind to the hyperconnectivity that drives the internet. In the context of an EU initiative on concept-re-engineering, the hybridization of online and offline has been coined as generating an onlife world,40 hoping to better capture the manner in which hyperconnectivity and its computational backbone animate everyday life as well as its architecture. Another way of putting this would be to say that the onlife world thrives on mobile, polymorphous and multiple borders that are reconfigured under our feet as it were. Obviously this will have prodigious consequences for the force, the viability and the reliability of jurisdictional borders.

The challenge, thus, concerns the impact of a networked spatiality on a jurisdictional landscape grounded in contiguous territories with cartographically enabled borders. If the virtual (non-physical) world is not a separate place, but already integrated in a new – onlife – world, the question is how borders can be constructed that protect from and against aggressive others within and without those borders. If networked borders have a tendency to be ephemeral, mobile and polymorphous, they may not ‘hold’ or stick, creating havoc for those who depend on the onlife world, plunging them into interminable negotiations, a succession of failed states and a mutation in the distinction between war, crime and piracy.

Let me briefly return to Grotius’ freedom of the high seas, justified by the notion of a passage, inter­ connecting sovereign states situated on different continents, enabling the benefits of economic exchange that would supposedly result in worldwide welfare. The notion of a passage fits with the geographic ­­­demar­ cation of the high seas as an inbetween that separates and connects land. However, once the internet anchors (and disrupts) our physical and institutional world it becomes hard to envisage it as a passage. The 40 L. Floridi (ed.), The Onlife Manifesto – Being Human in a Hyperconnected Era (2014).

22

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

The Virtuality of Territorial Borders

online world now shapes and constitutes the capillaries of the onlife world, turning into something like the sewage system, the electricity grid or the air we breathe, rather than a passage. We may employ it to cross old-school borders, but unlike the high seas, cyberspace is not inbetween but anywhere and everywhere.

This is where cyberspace differs fundamentally from the high seas and where the metaphor of Grotius’ Mare Liberum runs out of steam. The world order that was based on contiguous geographical territories, interrupted by the passage of oceans, must now reckon with the disruptive nature of dynamic, mobile, polymorphous and somewhat ephemeral borders of networked spatialities.

5. The rule of law in networked spatialities?

5.1. The legal subject outside its territory In his magnificent work on The figure of the migrant Thomas Nail announces that:41 ‘[r]ather than view human migration as the exception to the rule of political fixity and citizenship, this book reinterprets the history of political power from the perspective of the movement that defines the migrant.’

Nail notes that the migrant is usually seen from the perspective of sedentary life, turning the migrant into a secondary, deviant figure. Concomitantly, he argues, the migrant is perceived from the perspective of the state and defined in terms of the technologies of enclosure, which place the migrant outside the realm of belonging. Nail goes on to develop the building blocks for a theory of ‘kinopolitics’, highlighting the state’s potential for territorial, political, legal and economic expulsion. Enclosure – perhaps paradoxically – opens the door to expulsion of whomever and whatever is not welcome on the inside. In the era of contiguous territory-based states, this problem is mitigated by subjecting all those inside the enclosure to the reign (and thus the protection) of their sovereign. The sovereign cannot dispose of them at will, because this would expulse them into the territory of another state that is under no obligation to accept them. Even if this system was far from perfect, for instance allowing the sovereign to abuse or neglect its own subjects instead of expulsing them, it offered a clear-cut division between one’s own jurisdiction (based on nationality and/ or residence) and foreign jurisdiction.

In the Westphalian era, the migrant who was not a national nor a resident, lived in the interstices of this clear-cut division, with few rights and even fewer ways of exercizing them. The same applied, more or less, to those living in occupied territory – claiming to belong to the land or the people, but at the mercy of another sovereign. In sailing into extraterritorial waters to bring people together with different loyalties, protesting the stalemate in Israeli occupied territories, Ruti Sela and Maayan Amir seem to experiment with a new perspective on the figure of the migrant. The interstices become the ‘place’ to be, not a mere passage, but the default middle ground where borders can be redefined and protection redistributed. By referring to Hanafi’s idea of two extraterritorial nation states (Israeli and Palestinian),42 i.e. nation states without internal territorial divisions and with a common capital, they tread untrodden paths and attempt to radically rethink the relationship between state, nation and territory. They call upon the parties to accept that the loyalties of either migrants or residents may be multiple in terms of land, family, estate, language and jurisdiction.

In a sense they can be understood as re-thinking the relationship between migration and society, whereby migrancy is not secondary but primary to the formation of societies. Mobility then, is the default, and residency is what requires explanation. If this sounds like nomadism the point is not to romanticize preNeolithic nomadic society but to think about how current nomadisms can build and rebuild safe, flourishing and tolerant societies. It raises the question whether we can imagine extraterritorial nations capable or living together within the protection of territorial states that are inclusive while still protecting their people from violence and humiliation; being open without being naïve.

41 T. Nail, The Figure of the Migrant (2015), p. 235.

42 T. Heiman, ‘Exterritory. The space of politics’, Bomb Magazine, 27 April 2015, <http://bombmagazine.org/article/0563415/exterritory> (last visited 27 March 2017), who quotes Amir and Sela as referring to the work of Sari Hanafi on the idea of an extraterritorial state, e.g.

S. Hanafi, ‘The broken boundaries of statehood and citizenship’, (2003) 2 borderlands e-journal, no. 3, <http://www.borderlands.net.au/ vol2no3_2003/hanafi_boundaries.htm> (last visited 27 March 2017).

23

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Mireille Hildebrandt

In counterpoint, Peter Sloterdijk has recently claimed that we need territorial states more than ever and cannot open our borders by default. The emergence of international terrorism reinforces, according to Sloterdijk, the need to uphold geographical borders to protect ourselves from being terrorized by those who use violence as a means to publicize their cause.43 Sloterdijk seems to accept that the world order of contiguous territorial states is the only way to institute power as a legitimate authority, capable of terrorizing enemies on the outside and criminals on the inside – thus protecting soft targets from being ripped apart, and – I would add – the powerless from being marginalized as slaves or second-rate citizens, even if they are subjects of another state.44 He refers to Arendt, arguing that to enable such protection we need not abolish power but to civilize it, to constitute it as an authority that is constrained by countervailing powers. We need, I would add, to organize a world order that enables one ‘to speak law to power’, whether that is national or international law. The question is whether an onlife world, grounded in a data-driven architecture that has no need for jurisdictional borders, will still afford either national or international law.

5.2. Networked, mobile and polymorph borders?

The notion of speaking law to power has been taken from a paper by Jeremy Waldron on ‘The Rule of International Law’.45 In a subsequent paper Waldron has further developed his argument that in the playing field of international law, states should not primarily be seen as legal subjects with their own right to the protection of the rule of law, similar to the protection of natural persons within the domain of municipal law:46 ‘[S]tates are not the bearers of ultimate value. They exist for the sake of human individuals. To use Kant’s terminology, they are not ends in themselves, but means for the nurture, protection, and freedom of those who are ends in themselves.’

States, Waldron argues, are the trustees of their citizens and the rights of the state within the international realm must be seen in that light. States are artificial legal constructions and in the context of international law they must be qualified as agencies or officials rather than subjects of an international rule of law. This involves a difference that makes a difference. Whereas individual citizens are free to act as they wish unless the law forbids them, states are only free to act in accordance with the tasks attributed to them by law, remaining within the bounds of the constraints stipulated by law. This provides citizens with their freedom from unreasonable interferences by the state. This understanding of the rule of law is usually explained in terms of the legality principle (not to be confused with legalism), making sure that the state does not claim a zone of freedom to act outside the constitutional order. It relates to principles such as purpose binding and proportionality that determine the state’s restricted freedom to act, which guarantees citizens a freedom from unforeseeable interferences by the state. This last aspect is closely related to the notion of legal certainty ‘that enables people to figure out what is required of them, what the legal consequences of their actions will be, and what they can rely on so far as official action is concerned’.47 Legal certainty, meanwhile, does not refer to automated application of unambiguous legal rules, because the requirements of legal certainty must leave room for legal argumentation. This ensures that a legal norm48 ‘occasions, frames, and facilitates a certain process of reflection and argument, rather than just the mechanical conformity of behaviour to an empirically or even numerically defined requirement.’

43 P. Sloterdijk, ‘Es gibt keine moralische Pflicht zur Selbstzerstörung’, interview by Alexander Kissler and Christoph Schwenicke, Cicero, 28 January 2016, <http://cicero.de/berliner-republik/peter-sloterdijk-ueber-merkel-und-die-fluechtlingskrise-es-gibt-keine-moralische> (last visited 27 March 2017).

44 J. Waldron, ‘The Rule of International Law’, (2006) 30 Harvard Journal of Law & Public Policy, no. 1, p. 27, note 28, and J. Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’, (2011) 22 European Journal of International Law, no. 2, pp. 315-43.

45 Waldron (2006), supra note 44, p. 27, note 28, referring to R.B. Bider & D.F. Vagts, ‘Speaking Law to Power: Lawyers and Torture’, (2004) 98 American Journal of International Law, pp. 689-695.

46 Waldron (2006), supra note 44, p. 24.

47 Waldron (2011), supra note 44, p. 317.

48 Ibid., p. 337.

24

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

The Virtuality of Territorial Borders

This is an important qualification of the meaning and the consequences of legal certainty, notably in relation to the spatiality of cyberspace. If states are to be seen as agencies or officials of the rule of law in the international realm, they have a special role also in that realm to uphold the kind of legal certainty that fits with the legality principle, providing clear guidance on what individual citizens of whatever jurisdiction may expect from their own and other governments when acting in the onlife world. That special role includes duties to legislate (in the form of international treaties) and to submit to adjudication (by means of the institution and recognition of international tribunals). If one’s interactions in the hybrid habitat of online and offline networks have consequences that affect the citizens of another jurisdiction, one should expect that the trustee of these citizens (their state) will take action to protect those under its care. Legality requires enabling people to plan their actions by making them aware of potential state interventions, meaning that international law such as the Cybercrime Convention, the Geneva Conventions, international human rights law, humanitarian law, refugee law, and international criminal law, must spell out how states may intervene to redress violations of legal norms across territorial borders. Traditional notions of the effects doctrine and the general prohibition of extraterritorial enforcement jurisdiction may require reconfiguration, taking into account the simultaneity and automation of cause and effect both in terms of temporality and spatiality.

Cyber-attacks can be designed and engineered remotely, creating and/or collapsing distance in time and space; they can be conducted by nonhuman agents that run on code that is both highly effective and reasonably unpredictable (based on machine-learning techniques). These nonhuman agents may target nuclear industry, critical infrastructure or transportation hubs – their patrons may employ a virus or drones or a human person willing to commit suicide while conducting the attack. Interestingly, both the suicide attacker and the nonhuman agent have nothing to lose – making it hard to hold on to concepts like legality, as these are meant to take seriously a vulnerable human person who determines her own ends in this shared world.

To sustain legality and legal certainty in the onlife world we clearly need to rethink and to remake jurisdiction. We need to virtualize the actual, territorial, borders to return to the question to which the geographical borders were the answer. We need to actualize new borders that articulate another answer to the same question, adapted to the new onlife world. The notion of ‘we’ seems pivotal here. ‘We’ is first a multitude,49 not a grand legal subject that can be taken for granted as a given people, or a given nation.

As with the figure of the migrant the multitude should be the starting point to understand the making of collective subjects, such as nations and states or companies and other associations. Virtualizing territorial borders to gain access to what prompted them is an arduous task, on the cusp of a keen sense of reality and creative imagination. If we get ‘the virtual’ – the problem for which jurisdictional borders were the solution – wrong, we will not be able to develop an appropriate actualisation. The same goes for getting the new environment right, as this will be the ultimate test for whatever attempt of actualization. Considering that a multitude faces a vertiginous insecurity, as it lacks the kind of stable institutions that offer shelter against the threats of a potentially hostile, dangerous or fundamentally unpredictable environment, we may hypothesize that it is precisely this vertiginous insecurity that calls for the making of a collective subject.

The virtual that instigated the construction of jurisdictional borders can best be described as the precipitous uncertainty that is part of the human condition. The question then becomes how to make jurisdiction in a networked world with a plethora of shifting and polymorphous borders between various types of groupings, between individuals, between people and things, between institutions and short-lived habits and between categorized digital personae and social graphs. How to establish borders that hold and protect, capable of generating a spatiality that is sufficiently stable to ease the vertiginous insecurity that may otherwise turn the multitude into a self-destructive mob or a merciless Leviathan?

49 P.A. Virno, A Grammar of the Multitude: For an Analysis of Contemporary Forms of Life (2004).

25

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Mireille Hildebrandt

6. The end: speaking law to power?

In his A Grammar of the Multitude Paolo Virno discusses the distinction between fear and anguish.50 Fear has an identifiable object, one fears some concrete danger. Anguish regards a more existential condition that concerns the foundational uncertainty of being human, the awareness of the precipitous unpredictability of the world we face and the future we enter. Virno suggests that jurisdictional borders enable us to focus on fear, to work on the concrete dangers we envisage within the confines of an inside that is made reasonably predictable. Anguish looms on the other side of the border, but it can be kept at bay as long as we manage to build collective subjects and – I would add – fabricate legal certainty. Virno believes, however, that we are entering the era of the multitude, bringing existential insecurity back into the heart of the safe haven of nation states. His analysis partly draws on the neomarxist narratives of Hardt and Negri,51 but even if we do not agree with their post-Fordist vocabulary his insights seem highly relevant to the extraterritorial dimensions of the onlife world. His point is that the distinction between fear and anguish is crumbling due to the unravelling of the distinction between the inside and the outside, and the concomitant dishevelling of the concept of the people as the constitutive core of the nation state.

Though Virno, differently from Hobbes, and with Spinoza, does not believe that only a Leviathan can save us, I dare propose that even the idea of the multitude is being eroded by the data-driven architecture of the onlife world. A multitude still consists of individuals, whereas our networked life world reconfigures our selves as fluctuating sets of dividuals – inferred from the datified traces of intercepted behaviours.52 Cyberspace not only allows individuals to become ‘virtual’ migrants in any number of ‘virtual’ communities across geographically demarcated borders, its cybernetic mechanisms reconfigure the online environment in function of infinite series of inferred preferences, inclinations, risks or costs, turning our environment into a contingent adaptive system that mutates in line with the dividuals generated by the omnipresence of inference machines. Above this, the large-scale introduction of so-called cyberphysical systems that generate the novel onlife world,53 further confuses and confounds the individual human subjects that use these systems while they (cyberphysical systems) use them (the humans whose machine-readable behaviours are mined to drive the functionality of these systems). They – we, with our extended minds – are now extended in all directions, with the potential result of disrupting the unity of place, time and action that holds them – us – together. At both ends of the spectrum (the individual human subject and the collective subjects constituted by individual subjects) centrifugal forces vie with attempts to coordinate, reconstitute and architect new collective subjects capable of providing shelter to cultivate a good life. In this sense, extraterritoriality as a temporal space to take a break, to pause, to retreat, is a courageous effort to create distance from the myopic perspectives that still saturate our understanding of jurisdiction. It is also an imaginative step into the outside of contiguously mapped collective subjects.

Nevertheless, Sloterdijk may be right. To protect individuality as well as individuals we may still need something like exclusive jurisdiction. ‘Speaking law to power’ implies two things. On the one hand it is a modulation of ‘speaking truth to power’, referring, however, to the law instead of truth. This indicates that we are not dealing with a multitude turned into a mob, but with individuals that identify with an actual jurisdiction. On the other hand, it refers to addressing power, a Leviathan, taking the position of those subjected to both that power and the law – using the law to contest the powers that be. I dare say that virtualizing territorial borders should not just take us back to the problem of the multitude and the insecurity each individual faces. We should keep in mind that the way in which territorial borders solved this problem basically enabled both modern law and the rule of law. When actualizing new jurisdictional

50 Ibid., pp. 31-35. This is evidently a retake of Heidegger and Kierkegaard, if not Freud and e.g. Gehlen, but relevant here because Virno connects this distinction with national security, which makes it pivotal for understanding the virtuality of territorial borders.

51 Virno actually develops his own, less spectacular, more nuanced and nevertheless more radical understanding of the multitude, steering clear from easy oversimplification and scapegoating.

52 On the concept of a dividual: Deleuze (1992), supra note 35; Hildebrandt (2013), supra note 35.

53 ‘Cyber-physical systems’ is the new term for what has been called the Internet of Things or Ambient Intelligence, see e.g. S.C. Suh et al. (eds.), Applied Cyber-Physical Systems (2014).

26

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

The Virtuality of Territorial Borders

borders, we should aim to reinvent a similar system of checks and balances, of countervailing powers, to re-constitute the affordance of speaking law to power. This seems to invalidate the idea of networked, mobile and polymorphous borders, as this in a sense defines a multitude and confirms the vertiginous uncertainty it nourishes. If the spatiality of the onlife world is networked, mobile and polymorphous we need to reinvent jurisdictional boundaries that protect individual citizens against the violence of the ensuing existential insecurity. Perhaps this can be done by reconfiguring the role of territorial borders as part of a more complex, multi-layered set of jurisdictions. The most important task here will be to reinstate legal certainty in the onlife world, as this provides both the solidity of legitimate expectations and the ambiguity that enables reflection, experimentation and contestation.

27

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

This article is published in a peer-reviewed section of the Utrecht Law Review

Between the Dog and the Divine: Resistance and conventionalism in cosmopolitanism Geoff Gordon & Wouter Werner*

1. Introduction Cosmopolitanism is generally defined as a worldview that emphasizes what human beings have in common.

Whatever differences there may be in terms of, for example, culture, wealth, gender or physical location, a human being is always also a kosmopolitês; a citizen of the world. The fact that people share membership of the kosmo-polis matters in normative terms, as exemplified in, for example, human rights law or the law protecting the environment. Where principles such as nationality or territoriality emphasize the normative importance of difference, cosmopolitanism stresses that commonality matters in normative terms. In that sense, cosmopolitanism goes beyond extraterritoriality; it simply declares that for certain moral issues, place or nationality should be irrelevant. Thus, the Stanford Encyclopedia defines the cosmopolitanism position as follows: ‘The nebulous core shared by all cosmopolitan views is the idea that all human beings, regardless of their political affiliation, are (or can and should be) citizens in a single community.’1 The story of cosmopolitanism is generally told as one that began in ancient Greece, with Diogenes of Synope answering the question of what country he was from: ‘and he replied, “I am a citizen of the world”.’2 From there, the story goes to Rome, via clerical teachings in Medieval times, the natural law positions of early Modern philosophers such as Grotius and Locke, Kant’s ideas of cosmopolitan law and a federation of republics, towards the liberal theories that dominate contemporary debates on cosmopolitanism.3 However, emphasizing the development and continuity in cosmopolitan thinking, while not necessarily incorrect, comes at a price. It hides the fact that a significant break occurred between the often-quoted person of Diogenes and the subsequent approaches towards cosmopolitanism. In this article, we explore the decisive move in cosmopolitan thinking as it tried to steer away from the teachings of Diogenes of Synope, towards the teachings of one of his pupils, Zeno of Citium. At its roots, the move from Diogenes to Zeno is about a shift from cosmopolitanism as a negative position of resistance to cosmopolitanism as a positive programme of rules, policy and action. Diogenes, the first Cynic and avowed kosmopolitês, embraced the image of a dog that was ascribed to him, famously resisted convention and relied in his resistance on spontaneous, physical acts. Those acts, however, gave his cosmopolitanism a deeply situated character, limiting his resistance to a responsive posture defined by the local constraints against which he rebelled. Pauline Kleingeld, however, in the Stanford Encyclopedia, characterizes Diogenes’ cosmopolitanism as follows, holding that the whole *

Prof. dr. Wouter Werner (w.g.werner@vu.nl) holds the Chair for Public International Law at the Vrije Universiteit Amsterdam; Dr. Geoff Gordon (G.gordon@asser.nl) is a senior researcher at the T.M.C. Asser Institute in the Hague (the Netherlands).

1. P. Kleingeld & E. Brown, ‘Cosmopolitanism’, in E. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2014), <http://plato.stanford.edu/ archives/fall2014/entries/cosmopolitanism/> (last visited 16 March 2017).

2 Diogenes (404-423 BC) as reported in Diogenes Laertius, The Lives and Opinions of Eminent Philosophers, C.D. Yonge, trans. (1909).

3 Cf. W. Werner & G. Gordon, ‘Kant, Cosmopolitanism and International Law’, in A. Orford & F. Hoffmann (eds.), The Oxford Handbook of the Theory of International Law (2016).

www.utrechtlawreview.org | Volume 13, Issue 2, 2017 | http://doi.org/10.18352/ulr.381 |

Between the Dog and the Divine: Resistance and conventionalism in cosmopolitanism

of the Cynic way of life propounded by Diogenes was ‘supposed to be cosmopolitan: by living in accordance with nature and rejecting what is conventional, the Cynic sets an example of high-minded virtue for all other human beings’.4 His follower, Zeno of Citium, endeavoured to overcome the peculiar character of Diogenes’ resistance. Zeno, who became the acknowledged founder of Stoicism, apparently endeavoured to carry forward the virtuous dimension of Diogenes’ otherwise Cynical cosmopolitanism. Zeno’s major work, The Republic, was an effort to elevate Diogenes’ Cynical ethos to the level of universal order. Local convention would be overcome not by situated acts of resistance, but by a singular code applicable everywhere.

The physical immediacy of Diogenes and the universal timelessness of Zeno are joined in the legacy of cosmopolitanism that follows from them, two poles of a singular programme.

In Section 2 we will use the works of Diogenes and Zeno to argue that the cosmopolitan world view remains torn between negation and conformation; between anti-conventional resistance against and superconventional organization of power. This point will be further illustrated in the sections that follow. In the first place, we will show how the International Criminal Court combines the two elements of cosmopolitanism in its responses to international crimes. Secondly, we will illustrate the tension in cosmopolitanism through a discussion of two of the artworks that form the topic of this special issue of the Utrecht Law Review.5 Both artworks are about the 2010 Flotilla mission and the different responses it evoked. The artworks offer a cinematic representation of the tension between cosmopolitanism as a form of resistance and cosmopolitanism as a positive, conventionally embedded programme.

2. Diogenes & Zeno We know Diogenes of Synope from another Diogenes, Diogenes Laertius (for purposes of clarification: when referring only to Diogenes, we mean the former). No original work of Diogenes the Cynic remains.

He appears to have written a document entitled The Republic, but it has been lost without further record – unlike The Republic of Zeno, to which we will turn in a moment, of which suggestive bits have been reported, though nothing remains of it either.6 In the absence of major works, Diogenes is principally memorialized by dialogue attributed to him, and remembered for his iconoclasm and the severely ascetic lifestyle he is reported to have lived, which became an inspiration to succeeding generations of Cynics, in ancient Greece, Rome and beyond. He lived out of an empty wine cask, and famously eschewed owning even a wooden bowl to drink from, disposing of his own upon seeing a boy drinking from his hands. He was equally celebrated and despised for outrageous acts and provocative humour. He would eat in the marketplace though it was not allowed, and is known for having defecated and masturbated in public. Concerning the latter, he is supposed to have said something along the lines of, ‘if only I could satisfy my hunger by rubbing my belly.’ He is known to have walked around Athens with a lighted lamp in daylight, searching in vain for an honest man. And he is on record as the first self-described kosmopolites, or cosmopolitan. Diogenes hardly resembles a cosmopolitan as that term is received today, with connotations of harmony and inclusiveness. Nonetheless, he represents a virtuous universalism, set vividly in opposition to spurious distinctions imposed by convention. Moreover, as the primary inspiration for Zeno, the founder of Stoicism and the next figure in our contribution here, Diogenes can be recognized as foundational to consistent cosmopolitan aspirations reproduced into the present in Western political discourses.7 Diogenes’s Cynical cosmopolitanism took the form of opposition to local convention, typically on the grounds that local conventions posed false and arbitrary constraints. He represents, in the depictions of him, always an oppositional position, a constant rejection of local rules and norms. For his refusal to observe the laws and standards incumbent of the community, Diogenes was also ostracized and disparaged. The term Cynic comes from Kynikos, or dog-like in ancient Greek, and the term is both telling and central to 4 5 6 7

See Kleingeld & Brown, supra note 1.

See C. Ryngaert, ‘Representations of the (Extra)territorial: Theoretical and visual perspectives’, (2017) 13 Utrecht Law Review, no. 2, http://doi.org/10.18352/ulr.378, pp. 1-6.

J. Sellars, ‘Stoic Cosmopolitanism And Zeno’s Republic’, (2007) 28 History Of Political Thought, no. 1, p. 9.

See Laertius, supra note 2.

29

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Geoff Gordon & Wouter Werner

our story here: Diogenes was dismissed as less than human for his refusal to observe social conventions.

Diogenes, however, accepted and celebrated the characterization – hence the term Cynic as the name of the school for which he is known.8 Moreover, as the first Cynic and the first cosmopolitan, Diogenes linked the subhuman characterization with celestial association as part of a consistent attack on the pretense to temporal, territorial authority. His cosmopolitanism, like his embrace of the dog image, was a protest: a strategic, placeless association adopted to contest the specious authority of local rules.9 Being a citizen of the cosmos placed him beyond the political sources of legitimacy for local rules. The placeless characterization of his cosmopolitan pretension, however, is misleading. The consistently and vigorously oppositional nature of Diogenes’s perpetual dissent, the ‘dogged’ nature of his attack on local rules and mores, does not suggest the sort of disaffection or disinterest that placelessness might mean, in the sense of ‘no place or any’.

Rather, there seems an apparent attachment to the places in which he lived. Moreover, Diogenes does not appear to have been particularly peripatetic. There is no nomadic quality of belonging everywhere. Instead, Diogenes appears trenchantly to have fought to be at home, in his own way, in Athens and later Corinth.

His character is fixed in the places of his agitation, as though he were the only genuine inhabitant of those places, surrounded by pretenders propounding false authority, a constant challenge to their jurisdiction.

In sum, on the record available, Diogenes occupied himself wholly with resisting local laws and custom, and exclusively by means of agitation, never proposing a positive programme in their place, beyond a call for more opposition and resistance. And in this relationship to rules, two aspects bear emphasizing for purposes of the present study. First, as a matter of strategy, he apparently refused to reduce his Cynical cosmopolitanism to its own set of rules. His resistance is consistently described according to radically unconventional behaviour characterized by spontaneity. Agitation appears always to have been a negative strategy, eschewing articulation as a positive programme. Second, and by the same token, it seems equally clear that Diogenes was apparently subject to rules all the same, in the sense that his behaviour was determined by them, though as a matter of opposition. In constantly opposing local rules, he was constantly subject to them, and constrained to a narrow band of acts limited to outrageous contravention of local convention.

This reflects a paradox in Diogenes’s resistance to rules under the banner of cosmopolitanism. For all of his apparent resistance to observing or adopting a set of rules or a particular order, he lived programmatically all the same. Ultimately, his constant opposition constrained him to organize and conduct his with reference to the rules of Athens or Corinth, but in opposition to them, as much or more as any other inhabitant of those cities. For present purposes, the tension is revealing in the following way. His refusal to define a code of his own, despite his appeals to subhuman and celestial imageries, left him dependent on the codes against which all of his political action and entire lifestyle was arrayed. By the same token, however, his refusal may be understood to represent a strategic choice not to rationalize or institutionalize the programmatic consequences of his political commitment. The Cynical cosmopolitan commitment entailed seeing through temporal, territorial authorities, not reproducing them. This might be unflatteringly understood as denial, as a loss of self-direction for the sake of maintaining a sort of righteousness. In this sense, Diogenes represents an ambiguous individualism, a sort of individuation that remains other-determined. But it might also be understood as an uncompromising commitment to an active, highly situated form of dissent. Diogenes appeared to inhabit the contradiction and only the contradiction in action, without espousing any clear and positive ‘next step’, beyond an apparent determination to un-imagine, so to speak, false conventions. The rules ascribed to him are never more explicit than a call to arms, predicated on a negative invocation or generalized resistance, the most famous being to ‘deface the currency’.10 The next figure in our story, Zeno of Citium (whom we will also refer to simply as Zeno hereafter), takes Diogenes’s dilemma forward. Zeno bridges the Cynic and Stoic schools of Greek thought: he is known as having ascribed to the former school, but also as the foundational figure for the latter. Like Diogenes of Sinope, most of what we know of Zeno we know from Diogenes Laertius, though additional information Cf. J. Moles, ‘Cynic Cosmopolitanism’, in J. Branham & M. Goulet-Cazé (eds.), The Cynics: The Cynic Movement in Antiquity and Its Legacy (1996), p. 107.

9 Cf. G. Leung, ‘A critical history of cosmopolitanism’, (2009) 5 Law, Culture and the Humanities, no. 3, pp. 370-390.

10 Cf. R. Branham, ‘Defacing the Currency: Diogenes’ Rhetoric and the Invention of Cynicism’, in R. Branham & M. Goulet-Cazé (eds.), The Cynics: The Cynic Movement in Antiquity and Its Legacy (1996).

8

30

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Between the Dog and the Divine: Resistance and conventionalism in cosmopolitanism

about Zeno’s major work, The Republic, which has been lost, comes from a variety of sources. Laertius states that Zeno arrived in Athens as a result of a shipwreck, but remained there to study with Crates of Thebes, a prominent Cynic of the time. Zeno lived an ascetic lifestyle, in keeping with the teachings of Diogenes and the Cynics. Unlike Diogenes, however, Zeno appears to have lived a respectable life in Athens, with no comparable record of scandalous or immodest acts of his own.11 The difference in temperament is telling to the turn that Zeno represents here. His apparent personal disinclination for the outrageous act as negative praxis, and preference for less sensational modes of social and political engagement, reflect choices with strategic consequences.

Zeno apparently wrote his Republic during his period of training as a Cynic with Crates of Thebes. In keeping with the Cynical cosmopolitanism programme, Zeno proposed with his Republic to do away with differences among local orders, identities and laws. In a crucial distinction, however, he proposed to replace or supplant local orders and conventions with principles of universal order, a common identity and uniform rules, including a rejection of currency, as well as a rejection of temples, and a common dress code for all, men and women, among other rules.12 As such, Zeno’s Republic appears to have endeavoured something like an institutionalization of Diogenes’s opposition to local rules and conventions. If Diogenes presented a first, foundational articulation of a cosmopolitan, Zeno presented a first, foundational articulation of a cosmopolitan order: no longer a political programme defined always only by opposition to local rules and conventions, but a political programme representing a consolidated order all of its own. Likewise, not as a constant justification for resistance, but as a consistent master law. Instead of demonstrably contesting the local, Zeno went about articulating the rules for its replacement. Thus Zeno abandoned the praxis of strict opposition, and endeavoured instead to advance Cynicism by systematizing it. In doing so, he apparently rejected Diogenes’s embodiment of Cynic cosmopolitanism as a constant series of provocative acts. An explanation presents itself: in the figure of Diogenes, the Cynical impetus always to oppose particular rules with provocation portended perpetual subjection to precisely those rules by that very dogma; Zeno, in turn, can be read as trying to break the grip of that subjection by attempting to consolidate an independent, Cynical order. In short, Diogenes manifested a cosmopolitan praxis, the rule-guided nature of which remained tacit, and Zeno articulated a cosmopolitan order, the rule-guided nature of which defined it. Each, notably, was differently situated in relation to space and time (or chronotopically, to borrow the Bakhtinian term that is gaining use lately), Diogenes’s politics deeply invested in the local place at the then-present moment, contesting local conventions with a special sort of placeless authority – everywhere was a contest because nowhere were the rules he encountered tolerable. Zeno’s object or aim, by contrast, was not a local one, not immediate in nature, but a universal site properly ordered for all time. By this reading, Zeno roughly inverted the formula of Diogenes: nowhere did he engage in Diogenes’s provocations; instead he focused on producing the rules that must adhere everywhere, like an early theory of natural law. In sum, one can see Zeno, in his character, disfavouring the title of Dog – in keeping with his subsequent association instead with the Stoa. Not associated with the subhuman element, his contribution to the cosmopolitan origins story amplifies the pretension to celestial order, applying everywhere, over and beyond the temporal and territorial constraints of particular communities. The individuation in Diogenes’s practice is ceded by Zeno, replaced with an investment in a more perfect, universally-valid system of rules, to replace those that negatively determined Diogenes’s resistance.

To conclude this brief overview, in their separate codes and relations to convention, Diogenes and Zeno expose complementary and conflictual sides of cosmopolitanism: in Diogenes, a challenge to local regimes, and in Zeno a plan for overcoming them; but in Diogenes a political programme that cannot attain its own ends, and in Zeno a political solution that comes unmoored from its foundations. Each promotes recourse to the other, but each denies the possibility of simultaneously maintaining both positions, even though, being joined in substance, they would pursue similar moral and ethical objectives. From the perspective of contemporary international legal scholarship, they become twinned poles of an indeterminate cosmopolitan condition. And the legal form subject to indeterminacy produces equivocal relationships and, likewise, 11 See the depiction of Zeno in Diogenes Laertius, supra note 2.

12 Ibid.

31

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Geoff Gordon & Wouter Werner

historically is joined to the exercise of power as its ultimate arbiter. Between them, without more, they allow no definite stopping point between the immediate and the ideal, the bodily in all its situated particularity, and the celestial in all its harmonious expansiveness. As a result, the legacy of Diogenes and Zeno can be mobilized in contradictory ways. Consequently, cosmopolitanism becomes indistinct from its strategic mobilization, an indeterminate vocabulary for expansive political ambitions. For an example, we turn now to observe the deployment of cosmopolitan discourses at the International Criminal Court.

3. Unimaginable cosmopolitanism at the ICC The tension between Diogenes and Zeno plays out in different cosmopolitan projects today. One of the clearest illustrations can be found in international criminal law, and in particular in the institutional practices of and around the International Criminal Court (ICC). The ICC is often characterized as a cosmopolitan institution,13 or as a court serving global justice.14 This image of the Court is underlined in its own Preamble, which speaks of ‘all people’, who are ‘united by common bonds, their cultures pieced together in a shared heritage’; as well as the ‘well-being of the world’. The Preamble also contains a cosmopolitan argument as to why the Court was established. It recalls that ‘during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’; and that making sure that such crimes do not go unpunished requires ‘taking measures at the national level and by enhancing international cooperation’.

As we set out in the previous section, cosmopolitanism has dual roots. It is rooted in a highly situated form of dissent, but also in an attempt to institutionalize universal principles in conventional rules and institutions. This duality also structures the International Criminal Court, undermining the integrity of its praxis, as we will explain. We begin with the observation that the Court simultaneously offers resistance against ‘unimaginable atrocities’ and a positive programme to counter atrocities through the use of legal proceedings. Both aspects are linked of course, and taken together they reveal the tension within cosmopolitan thinking that we discussed in Section 2. The atrocious, unimaginable nature of international crimes works as the constitutive outside of humanity: while it may be impossible to define what ‘humane’ or ‘humanity’ means, it is possible to discover when the boundaries of humane treatment are transgressed: when human beings are victimized in ‘inhumane’ ways. Just like the emergence of space photography changed our conception of the Earth as a whole,15 international crimes create a sense of community as a contiguous whole encompassing a harmonious image of humanity. International crimes are, to paraphrase Beck, ‘an attack from our inner Mars’;16 from that which lies outside the now-conventional bonds of humanity, yet happens on the same globe that we all inhabit. What it is to be part of the global community is then delimited through its negative dimension, the inhumane act that defines ‘them’ and, hence, ‘us’.

Both aspects of the Preamble, the global community and in/humanity, take the Rome Statute beyond state borders and sovereign territories. They both posit something universal, be it a global community or that which makes us human and humane. Both thereby come close to the cosmopolitan law as described

by Cicero; a law rooted in natural law from which ‘we cannot be freed (…) by senate or people, and we need not look outside ourselves for an expounder or interpreter of it’. But this immanent possibility, which conforms both to the individualism of Diogenes and the natural law-like universalism of Zeno, reproduces the tensions we discussed in Section 2. International criminal law starts out from a situated dissent of inhumane,

13 See for example S. Roach, Governance, Order, and the International Criminal Court: Between Realpolitik and a Cosmopolitan Court (2009); J. Habermas, The Divided West (2006).

14 For an overview of the different characterizations of the ICC in terms of global justice see: S. Nouwen & W. Werner. ‘Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity’, (2015) 13 Journal of International Criminal Justice, no. 1, https://doi. org/10.1093/jicj/mqu078, pp. 157-176.

15 R. van Munster & C. Sylvest (eds.), The Politics of Globality Since 1945, Assembling the Planet (2016).

16 For similar arguments in the field of terrorism see Ulrich Beck’s argument about 9/11 as a cosmopolitan moment: ‘A question repeatedly asked and discussed in the past was the following: what can unite the world. The experimental answer was “an attack from Mars”. In a sense that is just what happened on 9/11; an attack from our “inner Mars”’. U. Beck, ‘The Terrorist Threat: World Risk Society Revisited’, (2002) 19 Theory Culture Society, no. 4, p. 46.

32

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Between the Dog and the Divine: Resistance and conventionalism in cosmopolitanism

international crimes. However, in order to fight these crimes, it is necessary to develop conventional rules and institutions, which can only be imperfect articulations of the cosmopolitan ideals underlying them.

After all, the global community for which justice is sought is extremely diverse, and contains numerous different and often conflicting interpretations of what it is to do justice in concrete circumstances. How can one possibly exercise authority in the name of cosmopolitan justice? One way out is to hark back to established, formal structures of decision-making power. As Koskenniemi has put it: ‘A deep-structured cosmopolitanism maintains that deep down the world is already united. The problem is that the claimed deep-structural principles vary, are conflicting, indeterminate and receive meaning and applicability only through formal decision-making structures. Re-enter government to make the choice; re-enter intergovernmental negotiations to set the balance. Cosmopolis must wait.’17 At the International Criminal Court, this gives rise to a series of paradoxes that are expressed in the Preamble. Although the Preamble refers to the idea of a global community and a common sense of humanity, this recognition is laid down in the most conventional of international instruments, a treaty between sovereign states. And although the Preamble refers to ‘unimaginable atrocities’, it is actually the prelude to a document that contains relatively precise definitions of a limited number of crimes. Not surprisingly, the process of codification subsequently gives rise to political struggles over the question of which types of suffering should be included and which types should be excluded from the jurisdiction of the Court.18 What is more, the codification and definition of ‘unimaginable atrocities’ also forces the International Criminal Court to constantly translate concrete suffering into formal legal categories. That is: not just to ‘imagine’ the unimaginable, but also to define it, and to exclude particular kinds of suffering on formal grounds. Thus, we find the Prosecutor in the opening statement of the Katanga case declaring that the accused are ‘responsible for some of the most serious crimes of concern to the international community as a whole’.19 In this way, the atrocious nature of the crimes in question function as that which brings the international community together in its ‘concern’. However, this statement is quickly followed by a sobering observation, confirming the conventional nature of the Court: ‘this international court has no jurisdiction over most of the crimes committed during the Congo wars’. In the Statement on the crimes committed by ISIS the Prosecutor makes the opposite move. After having set out that the ICC lacks jurisdiction over any of the reported crimes, she felt the need to ‘emphasise our collective duty as a global community to respond to the plight of victims whose rights and dignity have been violated’, partly because through the ICC Statute ‘[t]he international community pledged that appalling crimes that deeply shock the conscience of humanity must not go unpunished’.20 These variations in the stuff of international criminal law make it difficult to explain its practice in a coherent and compelling way. The problem, such as we perceive it, is compounded when inconsistencies are taken into account, for instance in the persistent failure to prosecute crimes by figures of Western power, rather than predominantly African states. In short, and in keeping with the conflicted condition of cosmopolitanism as we have observed it, the particular practices of international criminal law and its grand gestures are in tension, undermining the aspiration to a positive programme of justice. As a result, the ICC appears to occupy the local site of suffering, but on the basis of a universalizing code that floats freely above that site, a code that is otherwise unconnected and administered from afar.

17 M. Koskenniemi, ‘Legal Cosmopolitanism, Tom Franck’s Messianistic World’, (2002) 35 New York University Journal of International Law and Politics, p. 471.

18 See for example the discussion and critique in K. Clarke, Fictions of Justice, The International Criminal Court and the Challenges of Legal Pluralism in Sub-Saharan Africa (2009).

19 The Case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Opening Statement, ICC-01/04-01/07, 24 November 2009, <https://www.icc-cpi.int/NR/rdonlyres/D8F34FB0-DEAD-431A-8F80-54757F418EAC/281274/091124KatangaOpeningStatementformatt ed1.pdf> (last visited 16 March 2017).

20 Statement 08/04/2015, at:<https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-08-04-2015-1> (last visited 11 April 2017).

33

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Geoff Gordon & Wouter Werner

4. Floating cosmopolitanism: The battle over images in the Flotilla incidents The opposition between resistance and codification in cosmopolitanism also plays out in the artworks we were asked to reflect upon. In order to illustrate our point, we will focus on Maayan Amir’s chapter on extraterritoriality and the capture of the Mavi Marmara,21 in combination with two of the artworks. First, the film Scenarios Preparations, which contains footage of preparatory sessions for activists who were about to leave for the 2010 Flotilla mission.22 Secondly, stills from a video on the Israeli capture of the Mavi Marmara, one of the ships of the Flotilla.23 As Amir sets out, the Flotilla incident was to a large extent a battle over images. In her view, the confrontation between the Israel Defense Forces (IDF) and the activists was ‘in the first place, a confrontation between two spatial logics of information flow – one devoted to restricting and monitoring communications within extraterritorial waters, the other dedicated to expanding the information flow as part of the protest agenda’.24 And indeed, the confrontation between the activists seeking maximum reach-out and the IDF seeking control over images is one of the striking aspects of the Flotilla incidents and the capture of the Mavi Marmara. However, as the two artworks we discuss below illustrate, there was more at stake than a struggle between those seeking the free circulation of images and those seeking state control and monitored communication.

For one, the activists and the IDF both sought to mobilize cosmopolitan sentiments through the dissemination of images of the inhumane; of that which should be rejected in the name of humanity.

These moves echo the situated dissent of Diogenes, as they appeal to some form of direct, unmediated image of the inhumane and immoral. The mission of the Flotilla was particularly suited for this: it carried humanitarian aid for a strangled population, and aimed for maximum media outreach. The latter included the policy to disseminate images of violent acts by the IDF against a non-violent, humanitarian mission. The IDF, on the other hand, sought to (literally) portray the Flotilla mission as an illegal intrusion, carried out by radicals that do not shy away from violent acts against law-enforcing officials. In the artists’ rendering of this conflict, taking further what we have observed in the discourse of international criminal law, this contest of characterization is waged over the representation of the human body, especially as it may be identified by the face. A core issue behind the artwork concerns the control of information, pertaining to the visibility of the face, as the conflict is concentrated around the ability to see the face of the figure in the frame.

The focus on the face becomes like a virtual unmasking, drawing attention to the body’s ‘true identity’, and enlisting it as an ally in the political struggle for the institution of the law. And so we see an overlap with the methods by which international criminal law mobilizes the universal, reproducing and amplifying embedded political distinctions by occupying the figure or figures of humanity.

Secondly, the Flotilla mission was not about free press and the fight against censorship and state control of information. Rather, the goal was to disseminate images in the function of a media strategy, as part of a Zeno-like move to translate cosmopolitan sentiments into policy, rules and action. This becomes quite clear in the film Scenarios Preparations, which shows how some of the activists in the Netherlands prepare for their departure on one of the Flotilla ships. The film is edited as an observational documentary.25 It is shot without voice-over, music or text on the screen, does not contain an explicitly spelled out argument or narrative, and gives the viewer the feeling that she is co-present at the meetings shown on film. The film starts out with a training session, which consists of a basic exercise used in theatre: the build-up of a character. The activists are asked to put themselves in the position of an ordinary Palestinian or Israeli, and to imagine as concretely as possible the life, times and character of this person. As the instructor explains, 21 M. Amir, ‘Extraterritorial Images’, in Forensis Architecture (ed.), Forensis (2014), pp. 720-740; R. Sela & M. Amir, ‘Introduction’, in R. Sela & M. Amir (eds.), Extraterritorialities in Occupied Worlds (2016), pp. 13-28. See also R. Sela & M. Amir, ‘Representing Extraterritorial Images’, (2017) 13 Utrecht Law Review, no. 2, http://doi.org/10.18352/ulr.379, pp. 7-12.

22 R. Sela & M. Amir, Scenarios Preparations, 2015, video, 35:20 min. <https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/ DVN/WIM3AS>.

23 Image Blockade (Works and Research Created within the Frame of Exterritory Project), The Center for Contemporary Art, 30 July-26 September 2015, Tel-Aviv. <https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/PPBX1W>. See also G. Peleg, ‘Commando Unit Warrior is Prosecuting: “I Thought They Were Going to Execute Me”’, Channel 2 News, 11 April 2014: <http://www.mako.co.il/news-law/legal/Article-6cf8a45b4e15541004.htm> (last visited 16 April, 2014).

24 Amir (2014), supra note 21, p. 724.

25 For an overview of the different documentary styles see B. Nichols, Introduction to Documentary (2001).

34

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Between the Dog and the Divine: Resistance and conventionalism in cosmopolitanism

this is necessary for two reasons. First, because it gives the participations ‘another vision of a normal Palestinian or a normal Israeli, or whomever, as a message also they are just human beings’ (13:45). This cosmopolitan message is then linked to the more concrete aim of the training session, because thinking of Palestinians or Israelis as ‘just human beings’ ‘will definitely help you to communicate over there or to,… yeah,… to survive. When you feel oppressed you always think “okay, but maybe this is the guy whose dream is… you know, he has also two children and a wife”’. (14:10). This is necessary to empower the activists to fight with non‑violent means for the good cause of the mission.

The film then, quite suddenly, moves to another topic, directly related to the struggle over images. The viewer sees an agitated leader of the action, informing the group that she has a ‘not so nice topic to discuss’ (16:46), because apparently one of the participants has leaked information about things that were discussed during the sessions to the press. What follows is footage of the group discussing the policy on media coverage: which kind of information should be freely given, which information should be on an embargo, which information should be censored at all? The viewer sees the group gradually reaching agreement on which restrictions on media coverage should be in place for the mission to be as safe and successful as possible.

The film stops there, but immediately raises subsequent questions about what we have just witnessed.

The film contains an interesting tension between the style and the content: the style is observational, and suggests some sort of direct representation of what happened in the room. The fact that the film was shot on locations that were kept secret only adds to the feeling of co-presence created in the viewer. However, the content of the film shows that in that very same room activists and filmmakers discussed and agreed upon restrictions in terms of media coverage. Now what does this imply for the making and editing of Scenarios Preparations itself? It would defy the style and purpose of the film if answers to this question were presented directly within the film. Instead, we should treat the film as a starting point to think critically about the way in which we move from a Diogenesian moment towards policy, rules and action. The film shows that the move towards a ‘Zeno-like’ programme of cosmopolitanism unavoidably comes with distortions, selections as well as gatekeepers who determine what is shown, what is told as the dominant story of the cosmo-polis. Finally, in trying to mediate between the two, the caliber of the resistance that the film represents is compromised, as we discuss in conclusion.

5. Conclusion In the end, the artists’ video reflects the peculiar stalemate we observe at the intersection of cosmopolitanism, extraterritoriality and international criminal law, where normative ideals are caught indeterminately between a particular act under law, and a grand gesture of legal renewal. Between them, there is the remainder of forces that fix the cosmopolitan possibility in a particular form – a form that does not overcome the conditions and discontents associated with territoriality, so much as reproduce them in a new register. Consider once more the video art, its genius consisting in part of aesthetic choices which underscore a central point of what we observe in the law: namely, there is nothing new here. The artists make a virtue of the lack of creativity in this piece of political art. The aesthetic is familiar and unadorned, the form and content alike defined by a series of simple choices. Likewise the photo stills from the Mavi Marmara, borrowed footage from well-known newsreels, are reminiscent also of the back pages of print weeklies.

More than anything else, the artwork is informative. From the video, we learn the everyday elements that constitute the heroic act of resistance, such as the quotidian exercise in empathy, the frustration of common betrayal, and the familiar negotiations that result. Against the overwhelmingly terrible backdrop of the Israeli occupation of Palestine, we see a record of what could have been a high school theatre production. In the video stills from the Mavi Marmara, we see a contest over identity reduced to tabloid images. In constructing these jarring juxtapositions, the artists reproduce for critique the conflicted history of cosmopolitanism.

Cosmopolitan activism becomes caught: caught in the video between mundane solipsism and a compromised gesture, caught in the photo stills among competing claims of identity. And while the cosmopolitan ambition is caught up, the conditions it would reverse, including the abuses associated with the powers vested in and by territorial control, prove resilient. Likewise, we have observed a similar phenomenon in the practice of

35

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial

Geoff Gordon & Wouter Werner

international criminal law, where the underlying appeal to humanity takes several forms, moving between the local and the global â&#x20AC;&#x201C; in the process papering over or distracting from temporal and structural problems of power and politics. Consequently, at times, the enterprise of international criminal justice, like the cosmopolitan programme that we trace back to Diogenes and Zeno, appears to become self-defeating.

36

Utrecht Law Review | Volume 13 | Issue 2, 2017 | Special Issue: Representations of the (Extra)territorial