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THE MYSTERY OF TERRITORY

  • Fernando R. Tesón (a1)
Abstract:
Abstract:

This essay argues that the territorial rights of states derive from the property rights of the individuals that make up those states. The argument draws from the Lockean tradition of justification of political powers. Persons in the state of nature have natural rights. Those rights are first-order substantive rights (the right to property), and second-order executive rights (the right to enforce the right to property.) In the social contract, individuals transfer to the state their executive rights, not their substantive rights. The state can thus define the boundaries of property rights and adjudicate property disputes, but does not legitimately own land itself. The article discusses and rejects, for deontic and consequentialist reasons, positions that justify collective and state ownership of territory. Some important consequences follow from the argument: First, no actual state has territorial rights, since no actual state wields delegated powers in land. Second, notwithstanding the preceding conclusion, actual states have an obligation to exercise their (putative) territorial powers consistently with the respect for private property.

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1 As will become clear, this is a descriptive, not normative statement. This is what states actually claim and do.

2 The pioneer was Lea Brilmayer, “Secession and Self-Determination: A Territorial Interpretation,” Yale Journal of International Law 16 (1991): 177–202. Since then there has been a flurry of literature on the subject. See Nine Cara, Global Justice and Territory (Oxford, UK: Oxford University Press, 2012); Kolers Avery, Land, Conflict, and Justice: A Political Theory of Territory (New York: Cambridge University Press, 2009); Stilz Anna, “Nations, States, and Territory,” Ethics 121, no. 3 (2011): 572601 ; Stilz Anna, “Why Do States Have Territorial Rights?” International Theory 1, no. 2 (2009): 185213 ; Miller David, “Territorial Rights: Concept and Justification,” Political Studies 60 (2012): 252–68; John Simmons A., “On the Territorial Rights of States,” Philosophical Issues: Social, Political, and Legal Philosophy 11 (2001): 300326 ; Steiner Hillel, “Territorial Justice,” in Caney Simon, George David, and Jones Peter, ed., National Rights, International Obligations (Boulder, CO: Westview Press, 1996), 139–47; and Bas van der Vossen, “Locke on Territorial Rights,” Political Studies (2014), published online at http://onlinelibrary.wiley.com/doi/10.1111/1467–9248.12106/pdf

3 In the article I use indistinctly the terms “territorial rights” and “territorial sovereignty.”

4 See Miller, “Territorial Rights,” 254.

5 See Simmons, “On the Territorial Rights of States,” 304; Stilz, “Why Do States Have Territorial Rights?” 186.

6 The qualification is necessary because, as Christopher Morris has shown, human beings may solve the problems of private interactions by building institutions other than states. See Morris Christopher, “The Modern State,” in Handbook of Political Theory, Gaus Gerald and Kukatas Chandras eds. (London: Sage, 2004), 206–7. In what follows I use the word “state” for convenience, as encompassing also these other possible forms of political organization.

7 Steiner, “Territorial Justice,” 32.

8 This definition of territory tracks, in modified form, the one offered by A. John Simmons, “On the Territorial Rights of States,” 306.

9 See Article I of the 1933 Montevideo Convention on the Rights and Duties of States, entered into force December 26, 1934.

10 The leading case is the Island of Palmas Case (Netherlands v. USA), Reports of International Arbitral Awards, II, 4 April 1928, pp. 829–71, available at http://legal.un.org/riaa/cases/vol_II/829–871.pdf

11 The United Kingdom’s return of Hong Kong to China was not preceded by a referendum among the inhabitants of that zone. See Hannum Hurst, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: The University of Pennsylvania Press, 1990), 129–50. On this and related issues, see Tesón Fernando R., “The Conundrum of Self-Determination,” in Tesón Fernando R., ed., The Theory of Self-Determination (Cambridge University Press, 2015)

12 David Miller correctly describes (and endorses) the actual rule: “resources are at the state’s disposal to make use as it sees fit.” See Miller David, “Property and Territory: Locke, Kant and Steiner,” Journal of Political Philosophy 19, no. 1 (2011): 9293 . The international documents simply provide that “the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.” This legal rule presupposes that the government is the entity entitled to exercise the right of “people and nations”; it does not protect subjects against governmental dispossession, as the practice amply shows. Wenar Leif, “Property Rights and the Resource Curse,” Philosophy and Public Affairs 36, no. 1 (2008), thus misreads the rule: he thinks that it bans nondemocratic governmental appropriation of resources in its territory. Of course, Wenar has the better view on this issue. My point is that international law does not support it.

13 Regional human rights conventions make tepid attempts at protecting private property. See, e.g., Protocol I of the European Convention of Fundamental Rights and Freedoms. An examination of the case law shows that the Court will strike down only the most egregious instances of government theft.

14 I discuss this idea, which I style “The Hegelian Myth,” in Fernando R. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, 3rd ed. (Arsdley–on–Hudson, NY: Transnational, 2005): 57–96.

15 See, inter alia, Article 1 of the International Covenant on Civil and Political Rights.

16 See the discussion of self–determination below, Section VI. I examine the problem in more detail in my upcoming piece “The Conundrum of Self-Determination.”

17 I criticize this concept in Tesón Fernando R., “Ethnicity, Human Rights, and Self–Determination,” in Wippman David, ed., International Law and Ethnic Conflict (Ithaca, NY: Cornell University Press, 1998), 86111.

18 See Copp David, “The Idea of a Legitimate State,” Philosophy and Public Affairs 28 (1999): 345, at 6–7.

19 Nine, Global Justice, 7.

20 In addition to Locke’s great writings, works in this tradition include A. John Simmons, The Lockean Theory of Rights (Princeton, NJ: Princeton University Press, 1992); Simmons, “On the Territorial Rights of States”; Hillel Steiner, “Territorial Justice”; and Bas van der Vossen, “Locke on Territorial Rights.” Cara Nine also relies on Locke, but I decline to follow her collectivist interpretation of Locke’s argument. See below, Section VI.

21 Christopher Morris has suggested that the adjectives “natural” and “pre-political” may not be coextensive.

22 See Simmons, Lockean Theory of Rights, 123.

23 See Lomasky Loren, Rights, Persons, and the Moral Community (New York: Oxford University Press, 1987).

24 Here I draw freely from Fernando R. Tesón and Bas van der Vossen, “Respecting People as Owners,” (unpublished, 2014).

25 This formulation follows the excellent discussion in Hillel Steiner, An Essay on Rights, (Blackwell, 1994), 91.

26 See Schmidtz David, “The Institution of Property,” Social Philosophy and Policy 11, no. 2 (1994): 42.

27 The full argument for national and global freedom can be found in Loren Lomasky and Fernando R. Tesón, Justice at a Distance (New York: Cambridge University Press, 2015).

28 See Acemoglu Daren and Robinson James A., Why Nations Fail: The Origins of Power, Prosperity and Poverty (New York: Crown, 2012), 7395

29 Nine, for example, thinks that this neutrality among property regimes is a virtue of a theory of territory (Nine, Global Justice, 10–11).

30 The correlation between poverty and bad institutions, and especially market–unfriendly institutions, is undeniable. See James Gwartney, Robert Lawson, and Joshua Hall, Economic Freedom of the World: 2013 Report, available at http://www.freetheworld.com/. See also Acemoglu and Robinson, Why Nations Fail; North Douglass C., Institutions, Institutional Change, and Economic Performance (Cambridge, UK: Cambridge University Press, 1990); Soto Hernando de, The Other Path: The Invisible Revolution in the Third World (New York: Harper and Row, 1989); Landes David S., The Wealth and Poverty of Nations (New York: Norton, 1998); and Rodrik Dani, Subramanian Arvind, and Trebbi Francesco, “Institutions Rule: The Primacy of Institutions Over Geography and Integration in Economic Development,” Journal of Economic Growth 9 (2004): 131.

31 For purposes of my analysis, “a person A is in the state of nature with respect to another B if and only if A has not voluntarily agreed to join (or is no longer a member of) a legitimate political community of which B is a member” (Simmons, The Lockean Theory of Rights, 129).

32 The concept of executive rights originates in John Locke, An Essay Concerning the True, Original, Extent, and End of Civil Government [1689], chapter II, section 7, in Locke: Two Treatises on Government, Peter Laslett, ed., (Cambridge: Cambridge University Press, 2003): 271. Hereafter, Second Treatise.

33 Immanuel Kant, The Metaphysics of Morals, ed. [trans.] Mary Gregor (New York: Cambridge University Press, 1996), sec. 44, 6:312, pp. 89–90. See also Ripstein Arthur, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009), 145–81; and Stilz Anna, Liberal Loyalty: Freedom, Obligation, and the State (Princeton, NJ: Princeton University Press, 2009), 4456.

34 To be sure, there is some overlap between substantive and executive rights. When a court settles a property dispute, it adjudicates a piece of property to someone who previously did not possess it. Thus, the exercise of state jurisdiction will often result in substantive changes in holdings. But this does not mean that all substantive property rights are completely indeterminate and the state can reallocate at will. See the full argument in Tesón and van der Vossen, “Respecting People As Owners.”

35 Compare: “The citizens’ executive rights, once entrusted to government, become the executive power of the state” (Simmons, The Lockean Theory of Rights, 127).

36 For a discussion of surrendered and unsurrendered rights in the context of the Tenth Amendment of the U.S. Constitution, see Barnett Randy, Restoring the Liberal Constitution (Princeton, NJ: Princeton University Press, 2005), 7886.

37 Metaphysics of Morals, loc. cit.

38 Thus I agree with Bas van der Vossen, “Locke on Territorial Rights,” 3–7.

39 See Ripstein’s interesting discussion of roads, Force and Freedom, 232–66. I do not attempt to list the genuine public goods that the state may permissibly provide. But notice that the economic concept of a public good is quite technical. See Tyler Cowen, “Public Goods,” in The Concise Encyclopedia of Economics, at http://www.econlib.org/library/Enc/PublicGoods.html. Not every activity that the public or the government considers desirable will qualify as a public good.

40 Metaphysics of Morals, sec. C, 6:326, pp. 100–101.

41 The argument is fully developed in Fernando R. Tesón and Bas van der Vossen, “Respecting People as Owners” (unpublished, 2014).

42 “Stilz, “Nations, States, and Territory,” 574.

43 In Stilz’s words, “people are brought together by states” (ibid., 574). And again: “the ‘people’ are made into a collective body by being subject to state institutions” (ibid., 579).

44 Ibid., 582.

45 In this essay I do not address nationalist theories of territory. Despite their political popularity, they have notorious flaws. Writings critical of nationalist theories include my essay “Ethnicity, Human Rights, and Self-Determination”; Christopher Heath Wellman, A Theory of Secession, chap. 5; Anna Stilz, “Nations, States, and Territories,” 575–78; and Cara Nine, Global Justice, 58–63. The leading defender of a nationalist account of territory is David Miller, “Territorial Rights.”

46 Kant is clear about this. See Fernando R. Tesón and Bas van der Vossen, “The Kantian Case for Classical Liberalism,” (2014, unpublished).

47 Elsewhere Stilz writes that persons have no pre-political property rights that the state must respect, and that therefore the Kantian civil condition is compatible with many different property systems, such as laissez faire, market socialism, and collective allocation (Anna Stilz, Liberal Loyalty, 40).

48 Stilz, “Nations, States, and Territory,” 588.

49 Ibid., 584.

50 I quote freely from Fernando R. Tesón and Bas van der Vossen, “Respecting People as Owners” (2014, unpublished).

51 There is an additional problem with Stilz’s insistence that property rights make sense only within the state. As Bas van der Vossen shows, this demand fails to enable many people, such as persons in failed or undemocratic states, to exercise their property-related interests. See Bas van der Vossen, “Imposing Duties and Original Appropriation,” Journal of Political Philosophy 22 (2014): 1, 17. See also Cara Nine, Global Justice, 14–15.

52 Property rights do a better job also in addressing the fourth condition proposed by Stilz: that the state not be a usurper. A usurper is someone who violates “a residual claim, vested on the people, to reconstitute political institutions on their territory” (Stilz, 571). Her example of a usurper is a state with good moral credentials that annexes a territory. Annexation is wrong indeed, but its wrongness is better explained by private property than by the idea of group autonomy. The individualist account is more straightforward. Property owners retain their rights over land and are thus entitled to exclude others. Any coercive power over land must be agreed upon by the owner. If a foreign person or group, whether under the guise of official power or simply as a private person or mob, claims jurisdictional power over the land, the owner can rightly refuse. A usurper, then, is simply a trespasser, someone who attempts to occupy or use the land without the owner’s consent.

53 Cara Nine, Global Justice. Unlike Stilz, Nine identifies the “collective,” and not necessarily the state, as the territory-acquiring entity. I think Nine’s view better comports with ordinary usage. We say, for example, that this or that region is Kurdish country, or Basque country, even when those groups are not states. Yet my argument works against either, so I need not take sides on this matter.

54 Nine, Global Justice, 29.

55 See ibid., 31.

56 “The collective is normatively important because it is comprised of individuals and their decisions and interests are the normative source for justifying political power” (ibid.).

57 Ibid., 45.

58 Thus, I disagree with the central thrust of John Rawls’s The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), according to which “peoples” have conceptions of the good that other “peoples” must respect. The criticism is now in Chapter 7 of Lomasky and Tesón, Justice at a Distance.

59 Global Justice, 90–91.

60 Ibid., 10–11.

61 Ibid., 90–92.

62 See Pettit Phillip and List Christian, Group Agency (Oxford: Oxford University Press, 2011).

63 Nine, Global Justice, 91. The idea is plagued with problems I cannot analyze here (e.g., why isn’t the state of Florida a self-determining group?).

64 I do not regard the work of Elinor Ostrom as denying this. She demonstrated that in many situations human beings tend to draw up sensible rules for the use of common-pool resources, thus avoiding tragedies of the commons. She insisted, however, that such solutions would come from neighbors who pull these resources together, not from government imposing those solutions on them. Her analysis does not support government appropriation of resources. To the contrary: Ostrom’s approach is closer to the view in this essay, which insists that collective arrangements must be voluntary in order to be legitimate. See Ostrom Elinor, Governing the Commons (New York: Cambridge University Press, 1990), esp. chap. 2.

65 See Armen A. Alchian, “Property Rights,” in The Concise Encyclopedia of Economics, at http://www.econlib.org/library/Enc/PropertyRights.html. True, at a global level state ownership is arguably superior to a global commons. See Trachman Joel, The Economic Structure of International Law (Cambridge, MA: Harvard University Press, 2008), 1025 . A global commons would possibly be a major disaster, as it would likely unleash a tragedy of the commons of gigantic proportions. State ownership over resources is better than no ownership at all. But the same reasons to prefer state appropriation to a global commons should make us prefer private over state property.

66 See Wenar, “Property Rights and the Resource Curse,” 19–22.

67 See Edwards Sebastian: Left Behind: Latin America and the False Promise of Populism (Chicago: University of Chicago Press, 2010). For the case of Argentina, See Roger Cohen, “Cry for Me, Argentina,” New York Times, Feb. 27, 2014, at http://www.nytimes.com/2014/02/28/opinion/28iht-edcohen28.html?_r=0; and “Argentina: A Century of Decline,” The Economist, Feb. 15, 2014, at http://www.economist.com/news/briefing/21596582-one-hundred-years-ago-argentina-was-future-what-went-wrong-century-decline. For Venezuela, see Moisés Naun, “An Economic Crisis of Historic Proportions,” New York Times, Jan. 8, 2013, at http://www.nytimes.com/roomfordebate/2013/01/03/venezuela-post-chavez/chavez-will-leave-behind-an-economic-crisis.

68 I owe this suggestion to Horacio Spector.

69 Someone may suggest that private property as the basis of territory is inconsistent with liberal immigration policies because owners can exclude people. Not so. Owners can exclude people, but immigration barriers are state-created artificial obstacles to the owners’ desire to admit people onto their property. The problem with immigration is not that private owners do not allow immigrants. The problem is that the state does not allow private owners to admit immigrants.

70 The justice of immigration is discussed in Lomasky and Tesón, Justice at a Distance, chaps. 4 and 5.

71 See Tesón Fernando R. and Klick Jonathan, “Global Justice and Trade,” in Carmody Chi, Garcia Frank, and Linarelli John, eds., Global Justice and International Economic Law: Opportunities and Prospects (New York: Cambridge University Press, 2012), 217.

72 Nine, Global Justice, 76–81. See the response by Steiner Hillel, “May Lockean Doughnuts Have Holes? The Geometry of Territorial Jurisdiction: A Response to Nine,” Political Studies 56, no. 4 (2008): 949–56. Nine’s rejoinder in the same journal is now in the text of Global Justice.

73 Nine puts it in a form of a dilemma: if we accept the first horn, that individuals can secede, then “our current conception of territorial rights . . . is nullified” (Global Justice, 77). If we accept the second horn, that individuals cannot secede, then “social contract theory cannot explain territorial rights” (ibid., 80). I don’t have much trouble accepting the first horn, but at any rate, for reasons in the text, I think the dilemma is false.

74 See Huemer Michael, The Problem of Political Authority (London: Palgrave, 2013), 101136.

75 Miller, “Property and Territory,” 93.

76 Miller does not say that the state can have ownership rights; instead, the state has a right to govern. He thinks that the two concepts cannot derive from one another, and that we need separate theories of each. But since he seeks to explain the exclusive claims that states make over resources, he de facto seeks to include those claims in the scope of the state’s territorial rights: “resources are at the state’s disposal to make use of as it sees fit” (ibid., 93). We can call this power a territorial-jurisdictional right, but it sure sounds like ownership.

77 Avery Kolers, Land, Conflict, and Justice, 28–29.

78 See Bas van der Vossen, “Imposing Duties and Original Appropriation,” Journal of Political Philosophy (2013) published online at http://onlinelibrary.wiley.com/doi/10.1111/jopp.12029/abstract, and references therein.

79 Locke, Second Treatise, V, 27, p. 288.

80 Schmidtz David, The Limits of Government: An Essay on the Public Goods Argument (Boulder, CO: Westview Press, 1990), 1724.

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