IN his famous book The History of Piracy, Philip Gosse (1989 [1932], 298) recalls that people, at the end of the nineteenth century, believed the disappearance of pirates was imminent. It was the dream of a world where there is no territory without sovereignty, in other words, no one distanced from the rules of the state (Thompson 1994; Anderson 1997). Subsequent history seems to flatly disprove this prediction. Piracy has stopped being a historical curiosity or a simple metaphor. Pirates are among us and taking on diverse forms in many different realms: pirates of the air and seas, radio pirates, parliamentary pirates, global terrorists, computer pirates and hackers, viruses, spam, illegal immigrants, squatters, biopiracy, lobbyists, free riders, financial pirates, leaks, data aggregators, flags of convenience, international organized crime, money laundering, and so on.
The pirate is part of the contemporary social imaginary of globalization, where there is a convergence of predatory capitalism, fundamentalist movements, networks that escape the states, and the libertarians of deregulated cyberspace. Piracy maintains a close relationship with the figure of the parasite since pirates cannot exist without a social system off of which they live, but to which they do not want to belong: viruses live off our organism; those who steal intellectual property are dependent on the existence of cultural creation; the financial economy depends in the end on what we call the real economy; and so on. There are also “free riders”: people, institutions, or countries that go it alone and escape the agreements that should bind them.
The theme of piracy affords an interesting lens with which to consider many of our current conflicts regarding the ways in which ideas and technologies are created, distributed, and utilized. What is at stake, in the end, is the nature of the relationship we would like to maintain between creativity and commerce. It is not going too far to affirm that we are in the midst of the most profound revolution in intellectual property since the middle of the eighteenth century, and that it will probably destroy the conception of intellectual property that we have held until now and that is at the heart of our systems of copyrighting and patenting. Adrian Johns has announced this transformation by specifically taking the idea of piracy as a metaphor (Johns 2009). Internet protocols, in particular, seem to confirm that there are viable alternatives to the norms of traditional property. Many new business models make use of open software, which exploits previously unprecedented network properties; protests are being extended to the abuse of the system of pharmaceutical patents; and so on. In any case, the questions at stake do not merely represent changes in technology.
By virtue of the information economy, piracy has been generalized as a metastasis challenging the capacity to understand and control it. The accusation of piracy has turned into the reproach of our age, an omnipresent element in the discussions of business politics. At the same time as piracy has grown and diversified, a counterindustry dedicated to fighting it has also emerged.
The ambiguity of the phenomenon sparks very diverse reactions. The most fearful among us will fretfully affirm that we are moving toward a world full of pillage and plunder; on the other hand, the panorama seems to promise new emotions to those who are bored with the traditional political scene. In any case, it is worth asking if this reappearance of piracy gives us a clue to better understand the current world, its promises, and its dangers. We should verify the hypothesis that piracy is inseparable from the globalization of mercantile flows, from the formation of a transatlantic maritime world; that is why pirates are found in every period of transition. They have reappeared, in our case, given the current lack of definition about the nature and management of humanity’s common goods in the context of globalization and the knowledge society. Whether in the Mediterranean during the seventh century, in the Atlantic beginning in the seventeenth century, or in its current form everywhere, the tactic of piracy always consists in lying in ambush as close as possible to mercantile flows and as far as possible from the large political-military centers. It is no longer necessary to move anywhere to be in a place like this since the reality of globalization is that the financial system prevails over the political system everywhere; all locations today are close to the economic networks and far from political power.
The current profusion of various types of piracy is a sign of the type of world we inhabit thanks to globalization; some scholars have interpreted this as a “liquid” world. With the increase in what we could call common public goods (the climate, Internet, health, security, financial stability, and so on), uncertainty about their ownership and management also increases. All the efforts to regulate these new realities could be understood as attempts to afford a certain territorial intelligibility to areas where a special ambiguity has reigned until now. The difficulty of the matter consists in that this can no longer be done within the old categories of the nation-state; it requires a new way of thinking and managing the new public space.
LAND AND SEA
The point of departure for this inquiry could be the divergence between the land and the sea that has been part of our geopolitical imaginary since Thucydides (1972), who contrasted coastal Athens to landlocked Sparta, one democratic and the other a conservative alliance. The premodern world was an imperial, “maritime” world, not organized on the basis of strict territoriality, as nation-states in the modern era would later be defined. Herman Melville, the great poet of the maritime world, has one of his characters in Moby Dick declare: “Noah’s flood is not yet subsided.” Both the unity and the division of the planet then depended on maritime factors. The empires wanted to assert their authority as hegemonic powers across the oceans. The imperial age cannot be understood without hydropolitics.
The legal notion of “territory,” fixed and delimited, on the other hand, is a creation of modernity. The ancient world was still too fluid and limitless. Ancient and medieval cities and republics established dominion over specific geographic extensions. Even the Roman Empire admitted that its supremacy extended to the
Limes of the empire. But this boundary was not a border. It was a point where the area of a specific jurisdiction stopped, a point provisionally reached by the advance of the legions. Even when they became stable, these were not strict limits. Instead, it was a zone of transition, commerce, and communication between the Roman and the barbarian worlds. There were typically these types of spaces in medieval cities. They were not divided by lines, but by areas, sometimes sufficiently broad so as to allow enclaves and exclaves, where authority could always be debated. In a strict sense, the line of territorial demarcation emerged much later. As many historians have shown, the border was an invention of the absolutist state, especially in France.
Sea and land are also confronted as images with epistemological meaning. In a famous passage from the Critique of Pure Reason, Kant contrasts solid land, which he calls the “land of truth,” with the ocean as the “region of illusion” where the fog banks seem “a new country” (1968b, B294/A235). Modernity is epistemologically inaugurated as a supremacy of territorial permanence in the face of the fluidity and ambiguity of marine liquid.
Modernity is politically translated into the shape of the nation-state, based on territory, which establishes a new way of dividing the space of power, with clear jurisdictions and without areas of ambiguous sovereignty. But this period is a moment in history that is overcome in the middle of the twentieth century, when the process we call globalization is accentuated. The resulting interdependencies seem to lead us to a space that has more in common with the maritime indetermination of empire than with the solid ground of states.
The contrast between the sea and land also allows for a more general consideration of political theory in which two ways of understanding the social order become imaginarily opposed. Looking at things from this contrastive lens, we find this very antagonism in reflections made by Carl Schmitt in the period between the world wars (Schmitt 2008). The German jurist found it unfortunate that the dry-land nations, protectors of security and property, were growing weaker in the face of the maritime, liberal, oceanic powers. For Schmitt, the sixteenth and seventeen centuries were torn asunder by the antagonism between the terrestrial powers of closed societies and the maritime powers of open societies. This outline is the backdrop for all the political debates of modernity, which have revolved around a fundamental distinction between autarchic terrestrial states and limitless maritime powers, the collision between a political philosophy of land and a political philosophy of the sea, between a belief in limitation and a belief in limitlessness. For Schmitt, a conservative, that which is finite and completed represents the ideal, in contrast to that which is open and incomplete, typical of liberal societies. The supremacy of politics was symbolized for him in the power of solid ground, in the determination of that which is continental.
What horrified Carl Schmitt was that the land could collapse into the sea, in other words, that nations could end up disbanded in the ambiguity of a common public law. That explains his strong opposition to the birth of a new international order or jurisdiction, as he pointed out after the Second World War. Since then, the very dynamic of globalization has led us to the configuration of new spaces that require a jurisdiction beyond the national state, the appropriate management of interdependent common goods, and global governance. “Humanity” is now an inevitable term; from discussions about human rights and crimes against humanity to humanitarian associations and interventions, the name of our common species is crucial to refer to particular issues that point toward a cosmopolitan horizon.
This antagonism between the open sea and the limited land is very well exemplified in the philosophies of Grotius and Hobbes. The first is the defender of a world without static sovereignties and, therefore, without stable properties. Hobbes, on the other hand, is the champion of the terrestrial order.
We should recall the history that gave birth to this particular ideological juxtaposition. In 1603 in the Straits of Malacca, a Portuguese ship was captured by a ship belonging to the Dutch East India Company. Portugal denounced this act of piracy and demanded the restitution of its cargo, while the Dutch company tried to justify the seizure. The Dutch then appealed to Hugo Grotius, a young lawyer at that point, who argued, in a work titled
De Jure Praedae Commentarius (1606), that it was an act of legitimate defense against a country, Portugal, that was trying to gain exclusive control over the Asian seas to guarantee their business. His final argument was that, in the name of natural rights, no one can appropriate the air or the water and that it is impossible to appropriate the sea, because it belongs to everyone.
In this way, Grotius justified the right to plunder, to appropriation, as the new maritime way of thinking. He questioned the sovereign states’ attempts to appropriate the seas. Grotius came to affirm that the uninhabitable oceans had a specific legal status that made them closer to the properties of air. It was not possible to acquire fixed sovereignty over these elements. All attempts at possessing the open seas, whether they were claimed as a “discovery,” through papal bulls, or through the laws of war or conquest, were equally invalid. A similar argument was formulated by that great writer of the seas, Herman Melville, who established a distinction in order to legitimize colonial capture between the “fast-fish,” which belonged to stable, consolidated authorities, and the “loose-fish,” which were fair game for whoever arrived first. He concluded that the “loose-fish” category included America for Columbus, Poland for the czars, and India for the English. There is also an old tradition that associates property with the cultivation of land and believes that what is not cultivated or not cultivatable (such as the sea) cannot strictly belong to anyone. Plutarch once described the inhabitants of a certain island as pirates because they did not know how to cultivate the land. It is the same argument that was used to say that the Americas were unpopulated when the conquistadors arrived. Inhabiting means cultivating the land; those who do not do so do not have any rights over the space. That is why it was permissible to expel the indigenous peoples in the Americas or to freely ply the seas.
Hobbes’s Leviathan (published in 1651) could be interpreted specifically as the attempt to establish terrestrial order and security against maritime disorder. The modern nation-state thus arose against the disorder of the sea, against that which is mobile, unstable, floating, fluctuating, and elusive, symbolically personified by pirates. It is not surprising, therefore, that Schmitt found in Hobbes a precedent for his conception of a sovereign state, as that which introduces order and limitations in the face of maritime chaos.
THE NEW ECONOMY OF PILLAGING
Everything seems to indicate that the battle is currently tipped in favor of what Zygmunt Bauman has called the “liquid world” (2007): globalization is driven by general fluidity, which implies liquidation not only of the old borders, but also of the very idea of the border, which becomes obsolete in a deterritorialized space. We can comprehend what is going on with the metaphor of an “oceanification of the world,” in which fluidity is liberated from territorial constriction. It is a question of a world in which displacement and flexibility are the only reality, a world of generalized circulation, in which everyone navigates, whether it is through digital, financial, or communicative spaces. What has not been fulfilled is Virgil’s dream where, in the fourth of his
Eclogues, he affirmed that, in the future, we would live in a golden age when there would be no more voyages by sea. Even though there are now faster means of transportation, maritime traffic has not decreased: 95 percent of the global transportation of material now takes place by sea. The sea, this shapeless, unmarked medium, a universe of danger and conquest, is now the risk society, deregulated spaces of finance and consumption over which the old nation-state appears to be a power without authority.
We are facing a configuration of the world that looks like the archaic form of the societies of hunters and gatherers, who conceive of the world more in terms of itineraries, plunder, and pacts than as closed spaces and stable properties. There is nothing strange about the figure of the pirate reappearing in a world like this, and it is not surprising that it continues to represent an ambiguity between freedom and barbarity. The pirate ship is a multiracial and multireligious utopia that one can choose to join, the celebration of the right to leave against the obligation of identity. There are various recent studies regarding the pirate economy and its peculiarities (Lesson 2009). The Marxist historian Christopher Hill (1973) pointed out that many radicals viewed piracy as more honorable than the sugarcane culture based on slavery.
The pirate embodies the type of enemy who does not threaten a particular country as much as land nations in general, not a concrete sovereignty as much as the idea of sovereignty in general. This is a person who, according to Philip Gosse, is “in defiance of all organized respectability.” A pirate is distinct from a corsair in that he obeys no land laws and receives support from no land government. Cicero talked about people who are situated beyond the obligations of the “
immensa societate humani generis” [“immense society of the human species”] (Gosse 1989 [1932], 1.53). Within the taxonomy of enmity, pirates occupy a special place given their character as enemies of anyone who passes by. A pirate is not an individual enemy but everyone’s common enemy (
communis hostis omnium) (Heller-Roazen 2009). For the Roman philosopher, being part of the human community implies belonging to a clearly delimited territory. This is not the case for pirates, which explains their unsettling dangerousness.
Piracy is the opposite of hegemony, not in the sense that it is able to compete with empires in the power arena, but because it contests the idea of sovereignty itself. Piracy meddles in the intervals that the cycles of sovereignty continue to open, in “the space without witnesses, in the moral void” (Sloterdijk 2005, 180). This absolute hostility leads to our current designation of genocides as “crimes against humanity” or terrorists as “unlawful combatants.” Modern terrorism is reminiscent less of a traditional war between nations than of the piracy that stems from the weakening of modern conventions on territorial war (Chomsky 2002; Innerarity 2004). We find ourselves facing “brigands,” in the sense in which Bodino used the term to refer to those who do not respect the rules of the game (which also has unintended consequences, since turning the enemy into a “brigand” or a “fugitive” has served as an excuse for a strong decline of justice, for weakening democracy and international law). The parallelism between ancient piracy and current international terrorism is based on the fact that both phenomena are situated on the fringes of the territorial picture.
For this reason, I do not believe it is overextending the metaphor to affirm that piracy represents a new form of being in a world that has become liquid. I am referring not only to global terrorism but to current forms of globalization that once again take the bird of prey as a model. We could think about the behavior of consumers, which is so similar to pillaging (as is revealed by the first day of sales at the largest retailers or by any form of consumption that implies damage to the environment). The success of financial products would be inexplicable if it were not for the fact that they promise such large profits that we are blinded to the risks these products entail. I am also thinking about biopiracy, a term that appeared at the beginning of the 1990s to denote the unrightful appropriation of genetic resources. In this case, scientific or medical institutions are denounced as pirates, not because they destroy property, but because they introduce it into places where it did not previously exist. There is a relationship between many current conflicts and the regulation of certain natural resources; this could be called “a political ecology of war.” In short, the current increase in pillaging is explained by the weakness of nations when it comes to effectively controlling their territories and by the worsening of particularly intolerable inequalities.
The analogy also proves its worth if we examine the current ideological panorama, more liquid than territorial, with political strategies that are closer to piracy than to traditional action. The current ideological disillusionment is manifested in the fact that neither the left nor the right is particularly interested in taking part in habitual pathways to representation. Both conservative individualism and radical leftism see themselves as “antiestablishment movements,” as “parapolitics.” The pirate, in both their ideologies, represents the paradigm of the fight against the rigidity of the state or against the neoliberal order; for various and even contradictory motives, piracy is considered the most adequate strategy for the economic and cultural evolution of capitalism.
Some theorists appeal to a civil society and others to the multitude (Hardt and Negri 2000); these are both very liquid and not very political concepts. We are no longer in an age of the institutionalized right- and left-wing, but in the age of the Tea Party and social movements. The right prefers the market over the state and the left—rather than traditional forms of labor, social, institutional, or armed struggle—formulates substitute battles like exile, defection, or nomadization. As Deleuze and Guattari suggested, the nomad, more than the proletariat, is the resistor par excellence (1972). On the left, the most innovative strategies reflect the decline of revolutionary ideals. The most they can aspire to is “détournement,” a satirical parody proposed by contemporary art, making use of a term coined by the Situationist International. It implies attempted sabotage, derailment, distortion, or subversion. It is a question, in accordance with Deleuze, of interruptions or microspheres of insurrection. Of course, there is nothing reminiscent of the old goal of seizing power; the most ambitious proposal is to benefit from the interstices or the zones unoccupied by the state. Naomi Klein (2000), one of the principal advocates of the antiglobalization movement, appeals to “cultural jamming” as a form of resistance; this interference transforms brand advertising without altering its codes of communication in order to question the values these brands transmit. It is easy to note the contradiction of this alterglobalization, since choosing piracy demonstrates precisely that we do not believe “another world is possible.”
Pillage, which was a common form of appropriation in the ancient and classical world and which the modern state attempted to resolve with the establishment of codified forms of property, has currently assumed (in the world of finances and information) enormously complex manifestations. One of the most telling entities of contemporary piracy is the tax haven, these places without identity, without taxation or residency requirements. What is claimed there is the unusual right to abandon political spaces and avoid the taxes that are a symbol of territorial power. This is another strategy of depolitization, in its most harmful form. It is no coincidence that many of these “havens” are islands, and those who go there are no longer reprobates but the elite who abandon territorial states and their restrictions.
Cyberspace also provides a great number of maritime and pirate metaphors. Like the oceans and the air, cyberspace is a territory of navigation. The vocabulary of the web is very explicit in this regard. We navigate the web, and pirates attack, immobilize, sabotage, and take over servers, sometimes just for fun, other times for criminal or geostrategic motives. Other surfers move about there with the same libertarian logic with which financial experts invent products to escape possible regulation. Hackers sneak through flawed portals in the web and financiers look for offshore spaces in the same way pirates circulate between spaces of sovereignty. Like historic pirates, those who navigate the web live in an archipelago over which the powerless state does not hold a monopoly on legitimate violence.
The dream of freedom is what has turned the Internet into a political utopia that has delighted a generation. Many commentators have emphasized the similarities between certain countercultural ideals and simple liberal anarchism. It is a question of what some have called “the Californian ideology” (Barbrook and Cameron 2001) since its origin resides in the anti-authoritarianism of the 1970s and has given way to an ideological proximity between market libertarians and the online community, between neoliberal hyperreality and virtual hyperreality, between hippie anarchism and economic liberalism. This curious mixture of McLuhan and Hayek is something that is not simply explained by a common belief in technological determinism; it has even deeper roots.
Luc Boltanski and Ève Chiapello (1999) have demonstrated how, following the rebellious movements of 1968, the criticism of capitalism has taken two different routes: a “social” route that demands a modification in the relationship between dominant forces and an “artistic” route that attempts to liberate individuals with the goal of making them more authentic and creative. The Internet has afforded the movement a means of expansion for the autonomy of the individual, self-organization, and the rejection of collective limits. This anti-institutional dimension establishes many similarities with libertarian ideology. It has been frequently pointed out that the antiestablishment hippies of the 1970s, who were so committed to individual autonomy, did not find it difficult to get used to liberal policies and deregulation.
In this way, a new online territory of political struggle has been created, which is dominated by freedom of information and a lack of trust in the face of authority and centralization. Free software advocates champion the dissolution of digital borders and defend the free distribution of products. They consider profits illegitimate because demand is connected not to the intrinsic superiority of a product but to the fact that it was there first, which frequently comes about by chance. On the other hand, it also seems excessive because those whose products are in demand attempt to make it irreversible by imposing, for example, artificial shortages and making duplication illegal or impossible. In order to combat the control of demand, the new pirates of cyberspace defend the right to produce knockoffs, which is criticized in the name of brand protection. These forms of piracy do not try to invert capitalism but to create spaces protected from general commercialization.
CAPITALISM WITHOUT PROPERTY
The lack of structure in the world today depends, to a large extent, on a series of changes that cannot be understood or regulated with the instruments that we have. The world is presented to us as a common reality, without an owner, in which it is difficult to establish responsibilities or allocate powers. This lack of organization corresponds with a profound transformation in the concept of property; one could even talk about its liquidation into a “capitalism without property.”
We could explain this idea with a procedure that is valid for any historical reality. When we want to understand the meaning of something that is coming to an end, it is best to consider the meaning it had when it began. If the current crisis has revealed a profound transformation in capitalism, it could be enlightening to try to understand what the constitution of capitalism meant as a general system of property and commerce.
Therefore, what the modern state did was privilege property and property owners. All legal regulations afford great importance to the protection of property and distrust situations without an owner. Three-fourths of the articles of the French Civil Code of 1784 referred to property as the center of relationships and conflicts in a society. There was nothing in the world that could not become someone’s property and nobody who could reject all relationships with property. Anyone who lacks property, who is completely uninterested in the stable possession of goods, is a public danger; that person could be a speculator, a pirate, a suicide bomber, or simply someone who does not deserve credit. People who lack property are dangerous because they do not truly move within society. Someone who is simply poor, on the other hand, requires state protection, consumes, even if not very much, and claims social recognition; that person can be a citizen, act responsibly, be locatable. That is why modern political systems believe that civic liberty cannot be exercised without property, no matter how minimal it is. In the second article of the
Declaration of the Rights of Man and of the Citizen, property is found among the fundamental rights, alongside liberty, security, and resistance to oppression. However, what happens when the functioning of capitalism can renounce the ethics of property because it is no longer needed? What happens when property (its connections and its obligations) is no longer required to provide the necessary impulses to the market? This is the question that is currently being raised and that requires a new type of governance.
A survey carried out in Russia (and that could well be extrapolated to other countries) produced the following fact: responding to a question about which right they considered most important, a great majority situated the right to public health care, to work, or to education much higher than the right to property. We could conclude that the majority of Russians do not want to be landowners. A person with no interest in property is not interested in the state as a guarantee of that property either, only in an administration that guarantees certain benefits; those who live without property, in other words, without a private sphere, are not concerned about the public sphere either.
Globalized capitalism does not need property and its civic virtues. It has entered into a state of autonomy or self-reflexivity in which it can remain in motion without the civility that characterized what Macpherson called “possessive individualism” (1964). This is revealed in the current relationship between work and property. Property is no longer connected to managerial creativity and to work, which is no longer necessary when truly valuable property today comes from the value of stocks. At the same time, the ideal kind of worker is the autonomous technician who is not always present in the workplace, who maintains informal cooperation, who is not included in the solidarities of traditional work related to the production of material goods or formal hierarchical organizations. In the service economy, the ancient morality of work seems rather superfluous.
The scope of this capitalism without property is best seen in the financialization of the economy and in the world of stocks. Stocks are the new version of property. Even though not all property has to do directly or indirectly with the possession of stocks, it is in the stock market where the value of property is ultimately decided. Global financial markets establish the type of expectations that determine the movements of capital through stocks.
Property, which has been the expression of earnings, in other words, of a past, and which is connected with the idea of patrimony and inheritance, currently fluidifies until becoming the mere expectation that establishes the oscillation of stocks. If property used to symbolize continuity, the will of transmission toward posterity and, therefore, of perpetuating one’s own existence in some way, it now has to dispense with such pretensions and be willing to react continuously to the movements of the stock market. The fluidification of property through stocks corresponds to the transformation of property in expectation. Success consists in skillful adaptation, without generation or responsibility, especially the civil responsibilities of property. Shareholders try to increase the value of their stocks, but not with the intention of strengthening the value of their property as inheritable wealth.
Current shareholders generally do not know what they are participating in with their stocks or how the company of which they are coowners is run. They passively follow the suggestions established by the great investment firms. They are owners of their property in appearance only. At the same time, they are easy prey to panic reactions, booty from movements of capital that do not reflect the objective value of things as much as emotional oscillations.
If that is true, then we should question the economic function of owning stocks, in other words, of providing a sign of progress and growth in the turmoil of market forces. Even though stocks are necessary to legitimize the market, they increasingly function as claqueurs for the movement of capital and for the development of companies, which only a few people are able to interpret. The economic and social strength of stocks consists theoretically in placing owners at the center of capitalist activity and turning them into business people. But the truth is that this barely holds for the majority of small and medium stockholders. Stocks are nothing more than an expectation of an increase in value; they do not belong to the world of property, something their owner can identify as available.
A capitalism configured in this way apparently does not need a stable framework to maintain its permanent agitation. But one of the things the economic crisis has highlighted is that we need to find a functional equivalent for the tasks that used to be fulfilled by states when there was a capitalism of owners; otherwise the current capitalism without property will cause market failures that we cannot, as civilized societies, accept.
UNGOVERNED SPACES
Many of the things that are happening seem to indicate that we are living in an “offshore” world, in other words, a world with power literally “distanced from the coast,” delocalized, a world where the relevant authorities do not report to anyone: they are irresponsible and beyond the reach of legitimate political authority. As Palan (2003) would say, a world of sovereign markets, virtual places, and nomad millionaires. We have the feeling that those who should govern do not govern and those who are running things have no legitimacy. I am, of course, referring to the terrorists and men of war, but also, for example, to computer pirates, rating agencies, and tax evaders, who constitute a type of alternative authority or condition us in an unjustified manner, in ungoverned spaces, or wherever political authority is weak or clumsy.
The
most serious and general examples of ungoverned spaces are those we denounce with the term “failed states,” referring to societies where the nominal governments are incapable of exercising effective sovereignty. These political failures already have a long history. Following decolonization, it was hoped that new sovereign territories would follow the “Western” path of developing a sovereign power, in other words, the capacity for controlling the use of force, imposing political decisions within a territory, and resisting attacks from the outside. However, this paradigm has never adequately described the reality of two-thirds of the planet, where what exists is quasi-states or areas of limited sovereignty. This imbalance between legal sovereignty and effective sovereignty led to the emergence of alternative structures of authority in those areas: feudal forms of power, insurgency, tribalisms, mafias, and the like. Moreover, one might maintain that the inclusion of those decolonized spaces in the global economy has complicated their ability to organize a true political authority and exercise effective control in internal affairs. The structures of authority favored by global capitalism often do not coincide with the structures of authority that are granted legal sovereignty in those territories. This was a concern that, in the 1990s, after the end of the Cold War, gave way to the fear that terrorism would find refuge in those “failed states.”
The concern about spaces that are ungoverned in the strict sense arises from the premise that the sovereignty of territorial states is the one correct form of political organization capable of guaranteeing world order. But this approach is too narrow because it does not address the ungoverned spaces that exist in the international system and in other virtual environments, with transnational actors and diverse networks, inside organized states, on the periphery, or in the center of many cities. We tend to see the problem of dangerous spaces as something exterior, which is an error because even in spaces beneath legitimate state sovereignty, the territory is not uniformly controlled. It has become too normal to find the existence of areas where one best not enter, within some cities, or in rural areas controlled by insurgents.
What if the difficulty of governing were less extraordinary, more disturbingly normal? In the first place, the state should be understood not only as a territorial space but as a functional and regulatory space. From this point of view, state authority always fails when it does not provide the benefits that are demanded of it, when it only regulates poorly or insufficiently. The problem of ungovernability is broader if we think of it not only in the extreme cases of power vacuums or state failure, but also as a general characteristic of the world in which we live. There are some who maintain specifically that the virtual spaces of finance and information presume the end of sovereignty (Strange 1996). In any case, it is interesting to consider how statehood has been transformed at a time of weak sovereignty; there are ungoverned spaces where states have ceded sovereignty, voluntarily or involuntarily, reasonably or not, in all or in part, to other authorities. If we understand that ungoverned spaces are those in which the power of the state is absent, weak, or contested, then, in addition to referring to territories of tribal power or persistent insurgence, we should widen our perspective to include the domain of the Internet or markets where economic agents operate without sufficient public regulation.
The wave of neoliberal globalization led to the deregulation of commerce and of the financial markets, which contributed to a significant decrease in the states’ ability to regulate the flow of goods, services, information, people, technologies, and environmental damages. The origin of the current global financial crisis is to be found in the financial instruments that were developed in the space of the deregulated markets and dramatically illustrates the relationship between globalization, uncertain sovereignty, spaces of economic irresponsibility (such as offshore banks, tax havens, and a particular jurisdiction of banking secrecy), and the creation of alternative authorities (most notably the rating agencies, whose independence and sense of responsibility have been placed increasingly into question). The global spread of neoliberalism has undermined states’ ability and legitimacy to govern the financial markets and create the conditions for balanced economic prosperity.
“Offshore”
evokes exotic places and distant islands, but the truth of the matter is that the majority of the financial transactions of this type take place in the great financial centers of New York, London, and Tokyo. “Offshore” does not refer to the geographic location of certain economic activities but to the legal status of a series of places that are expanding because of the abstract character of current finances. This does not minimize the scandal of having the Cayman Islands be the fifth largest financial center in the world. Nor does it make any sense that Luxemburg has more banks than Switzerland, a country in which there are more bankers than dentists, or that Liberia has more boats than any other country in the world, or that the inhabitants of the Netherlands Antilles spend an average of three months a year making international calls.
The other case of unsettling deregulation is the Internet. Of course it is not a completely ungoverned space, because there is at least an unofficial partnership between governments and the companies that run it. In spite of everything, cyberspace continues to be a dangerous place; it is a truly transnational construction, where demarcations and borders have minimal relevance. Regarding the global nature of the information flow, the regulations are national and incomplete. The Internet possesses its own epidemiology similar to the pandemics of physical spaces as well as some specific crimes that are especially difficult to fight. Even though states still play an important role in the control of digital spaces (as seen in the uprisings in northern Africa and China), it is clear that governance of the Internet will diminish the centrality of the nation-state in global politics.
The conclusion we can reach from all of this is that there are more ungoverned spaces than we imagine, but they are less ungoverned than we fear. Things that initially appear disorganized often have their own type of order. Many of the goods traditionally provided by the states are now administered by local or transnational actors.
The prescription of governing these spaces is often realized from a state-centric perspective, as if the state—in its traditional form—were the critical actor when it comes to providing governance and generating security. But in the world of the twenty-first century, state sovereignty has become uncertain, and the state is accompanied by many other actors, benign and malign, which sometimes compete and sometimes collaborate when it comes to providing governance and security through nonhierarchical, horizontal forms of organization.
The concern about the loss of both functional and regional sovereign authority stems from the erosion of the territorial state as exclusive arbiter. In many cases, this concern is exaggerated; in other cases, it is reasonable, but it comes in response to the traditional states’ weakness when it comes to executing the monopoly to which they aspire in a new multicentric world with diverse spheres of authority (Rosenau 1990). Many of the ungoverned spaces and the alternative authorities they represent are here to stay, like it or not, and states should worry about how to manage, limit, and coexist with them in order to provide their people with proper security. On many occasions, localizing the authority of the states within a network that includes nongovernmental organizations and international agencies contributes to the creation of systems that provide better norms and greater security. It is a question not of forgetting nominal sovereignty but of developing it with a more nuanced comprehension of the structures of authority that act in each area and every subsystem of society. The markets and cyberspace will become increasingly ungovernable if our understanding of governing is limited to the system of control that operated within traditional states. We must once again govern the things that social change tends to deformat politically; the problem is that it must be done in a different way.
IN SEARCH OF LOST RESPONSIBILITY
Piracy is an indicator of a lack of regulation, whether because we find ourselves faced with new forms of property, common goods that are hard to identify, or innovations that present normative problems. What should we think, for example, about that war on patents on the bottom of the sea in order to register organisms that could be applied to medical or energy needs? The new piracy is especially due to the current profusion of public goods, their natural lack of definition. In fact, the modern age could be understood as an age in which action was faster than legislation, as has been the case since modernity and as is probably a characteristic of modernity in general. Those who are looters and delinquents in stable, standardized times look like pioneers, adventurers, heroes, or missionaries of civilization during historical moments of discovery and expansion.
We should also consider pandemics, security, the climate, knowledge, the Internet, or financial risks, whose liquidity responds to the fact that it is not always easy to know who is in charge, who is the competition, to whom things belong, who will take responsibility, who is the originator, and so on. All of that is supplemented by a characteristic effect of deterritorialization: the difficulty of distinguishing private and public, that which belongs to me and that which belongs to everyone, internal and external. One must specify, for example, the conditions of acceptability of income in a knowledge and information society, when and to what extent the benefit for the creators (in the artistic, financial, and pharmaceutical fields) is legitimate. A new equilibrium must be found between the security and the defense of private life, between the originator’s rights and the diffusion of culture, between the requirements of research and the right to health. We need, in short, new regulations for a world in which knowledge is scattered, from available information, from places within reach and instantaneous communication, a world of interdependencies and connections.
It would be worth interpreting the current attempt to regulate these new spaces as an attempt to reterritorialize the world and combat its excessive liquidity. It is the logic that moves the determination to control financial fluctuations and eliminate tax havens, which are no longer on the periphery but at the heart of the new global world. These lawless islands turn the relationship between land and sea on its head: solid land is now found on the periphery of a liquid world, states on the periphery of the financial world. It is as if we lived in a world in which the sea had assumed power over solid land. That is why the current battle against tax havens can be understood as the revenge of terrestrial powers against those derived from the new deterritorialized power.
Let us think, for example, about the idea of “traceability” that is presented as an ecological demand for consumer products, which is nothing but the attempt to go back up the chain of transactions to assign responsibility. What commonalities are found between the fact that a pirate had an unidentifiable past and no identifying attachment to any known state and uncertainties raised by many of the current food industry’s products or the concerns certain consumer products raise when we presume their production comes from labor abuses? In both cases, it is the lack of past that produces fear. The idea of traceability is to depiratize the food chain and our consumption in general, regaining a confidence that can only be achieved by identifying its origin and historic evolution, replacing an ambiguity that conceals its liquid condition with a recognizable terrestrial itinerary.
But the problems are as vast as the confusion produced by a reality of such dense interdependencies. How are we to make war against the pirates in a liquid world in which there is not, strictly speaking, a battlefield? The repression of piracy in the eighteenth century provides a model that, give or take some obvious differences, can focus our battle against global crimes. The Alien Tort Statute, which the Americans used to try to eliminate pirates in 1789, gives us some clues about governance and global justice: open debates, broader consensus, unification of criteria and laws. The fight against piracy could only be truly effective when it was thought of as an area of “universal jurisdiction,” in other words, surpassing national jurisdiction.
The current ambivalence of deterritorialized realities reveals a problem for which we still have no adequate management framework. On the one hand, the fact that rights are valid regardless of the territory in which one finds oneself is progress. This is established, for example, in the United Nations Working Group on Arbitrary Detention: if a state exercises control over particular subjects, no matter the territory in which they are found, that state retains responsibility under international law. But there are perverse forms of deterritorialization such as Guantanamo, a whole series of no-man’s-lands where it is established that the limits of territory are not necessarily coextensive with the limits of the law.
Current demands to move toward universal jurisdiction have their legal roots in the ancient right of anyone to pursue and penalize maritime looters. If we pay attention, many of humanity’s biggest problems nowadays require going beyond territorial limits and finding “oceanic” solutions. For example, the demand for a revision and amplification of the criteria for access to citizenship in emigration matters, which would mean separating citizenship from the state or denationalizing rights. There is no other solution except overcoming the principal of territoriality of rights in consonance with the deterritorialized nature of the demands we should confront, making the law, in a manner of speaking, more “maritime” and less “continental,” making it isomorphic with its object. The return of the pirates in the global age reveals that the sign of the times is the return of the seas and the progressive irrelevance of the land.