02 November 2014


'Nations, States, and Territory' by Anna Stilz in (2011) 121(3) Ethics 572 comments
Nationalists hold that the state derives its territorial rights from the prior claim of a cultural nation to territory. This article develops an alternative account: the legitimate state theory. This view holds that a state has rights to territory if it meets the following four conditions: (a) it effectively implements a system of law regulating property in that territory; (b) its subjects have a legitimate claim to occupy the territory; (c) the state’s system of law “rules in the name of the people,” by protecting basic rights and providing for political participation; and (d) the state is not a usurper. 
It is tempting to view each legitimate state as having the right to exercise political authority within a given set of boundaries. But what gives a state the right to these boundaries? Consider the United States: its original border encompassed only the eastern half of the country up to the Mississippi River (excluding Florida). The Midwest was acquired in the Louisiana Purchase from France in 1803, Florida purchased from Spain in 1821, Texas annexed in 1845, the Southwest ceded after the Mexican-American War in 1848, and Alaska purchased from Russia in 1867. Then Hawaii was added in 1898, after a group of businessmen who had overthrown its government pleaded for an- nexation. Finally, Puerto Rico, Guam, the Philippines, and Cuba were ceded after the Spanish-American War. Given this (largely tainted) history, we might ask: Does the United States have a right to all the territory within its current boundaries? What, if anything, differenti- ates its current relation to the territory of Hawaii, say, from its current relation to the territory of the Philippines? (The Philippines became independent again in 1946.) To ask these questions is to ask what grounds territorial rights.
Beyond answering our questions about the rights of states with relatively settled boundaries — like the United States — an account of territorial rights could also help resolve the disputes involved in cases of settlement, secession, and decolonization. Many states have at- tempted to extend their boundaries by subsidizing settlers, as Israel has done in Palestine, or Morocco in the Western Sahara. Is settlement a legitimate way to acquire new territory? Or consider secession: often, secessionist groups forcibly appropriate territory, as during the secession of Eritrea from Ethiopia in 1993 or of Bangladesh from Pakistan in 1971. But if these groups had no right to the territory they seized, they may have committed an unlawful taking. Finally, even when some population is freely granted independence, as in cases of consensual decolonization or secession, we still need a theory of territorial rights to determine the boundaries of the new jurisdiction. So a theory of territorial rights can aid in two important tasks: explaining the legitimacy of long-settled boundaries and demarcating new ones.
We should begin our investigation into territorial rights by looking at the claims to territory that states actually make. States claim a bundle of rights over territory, which we can divide into three basic elements. First, they claim territorial jurisdiction, which entitles them to make and enforce law within their borders. Territorial jurisdiction is the right to establish or maintain a distinct system of law on part of the earth’s surface. When a state has this right, outsiders ought not to interfere with its exercise of authority within its boundaries or set up alternative institutions there. Second, a state claims resource rights in its territory: states attempt to use and control extractable minerals, oil, and other natural resources and to profit from their sale. Finally, states claim the right to control borders and to regulate the movement of people and goods across the territory.
Of course, the fact that existing states claim these three rights doesn’t mean their claims are valid: we must ask whether these claims can be justified. Here, I investigate the justification of the first, central element in this bundle, the right to territorial jurisdiction. Justifying the rights of resource and border control requires a more complex approach. These rights are parasitic on the prior right of territorial jurisdiction, and they are also limited by external legitimacy conditions that constrain how the state should exercise these rights when their exercise affects foreigners. For that reason, this article considers only territorial jurisdiction, on the theory that we can then extend the view to control of borders and resources in a second step. I will not argue for or against international freedom of movement or resource privileges here.
Instead, my main aim is to develop an alternative to the currently dominant account of territorial jurisdiction, the nationalist theory. The nationalist theory holds that the state derives its territorial rights from the prior collective right of a nation to that territory. A nation is a group defined by cultural characteristics that its members believe themselves to share, including language, traditions, or a common pub- lic culture, combined with an aspiration to political self-determination. On the nationalist view, a state has a right to a territory if (a) the nation it represents has a prior right to the land in these areas and (b) the state is properly authorized by that nation.5 One reason why the nationalist theory is attractive is that it seems to provide a good expla- nation of why a particular state should have rights over a particular territory. On the nationalist view, the French state has rights over the territory of France—and not, say, the territory of Norway—because it represents the French nation, to whom this territory already belongs.
In what follows, I argue that invoking nations is neither necessary nor sufficient to explain territorial rights. In Section I, I show that the nationalist account is more problematic than it seems: it has trouble explaining how nations acquire territorial jurisdiction and has implications that fail to match our intuitions in particular cases. My arguments may not conclusively refute the nationalist theory, but I believe they point out enough difficulties to make it worth considering an alternative view. In Sections II–IV, I then develop a different account of territorial rights, the legitimate state theory. The legitimate state theory holds that a state has rights to a territory if and only if it meets the following four conditions: (a) it effectively implements a system of law regulating property there; (b) its subjects have claims to occupy the territory; (c) its system of law “rules in the name of the people,” by protecting basic rights and providing for political participation; and (d) the state is not a usurper.
I conclude the article in Section V by raising what I think is the most important objection to my legitimate state theory: the annexation objection. In addressing this objection, I make room for the territorial claims of “peoples” who have a past history of shared statehood. I allow for a residual claim of the people to reconstitute themselves as a legitimate state on their territory when their prior state fails, becomes illegitimate, or is usurped. The recognition of this claim distinguishes my legitimate state theory from other views in which peoplehood plays no role. Against nationalist theorists, however, I argue that “the people” is not a cultural group but is simply the collective subject of a prior state. And I claim that the people’s territorial right is a very distinctive kind of claim: “the people” can exercise this right only in extraordinary circumstances. Once it is understood how the legitimate state theory incorporates a people’s residual rights, I believe its main competitor—the nationalist theory—loses some plausibility by comparison.