Authority and Democracy Authority and Expertise
Political authority without territorial rights? Past territorial arrangements: • Territorial dominion was a prerogative of cities and provinces, rather than states • Empires had political authority but not fixed borders • Feudal territorial structures had complicated rules to assign overlapping jurisdictions over different members living on the same territory
Territorial rights Territorial rights: the right to exercise control over a particular geographical area. Three elements: • The right to jurisdiction (i.e. the right to make and enforce rules over it) • The right to control the resources present in the area • The right to control the movement of people in the area (and particularly to exclude outsiders)
Three approaches Do states have territorial rights? Three approaches: • Acquisition theories • Attachment-based theories • Legitimacy-based (or “functionalist” theories) Compare • Consent theories of political authority • Associative theories political authority • Natural duty theories of political authority
Acquisition theories Analogy territorial rights – property rights Individuals (or groups) acquire property rights over certain pieces of land. ↓ Individuals (or groups) with title over the different pieces of land sign a contract with the state: • The state promises to protect their property rights and maintain peace • Land owners agree to have their property incorporated in the territory state, i.e. to be under its jurisdiction How are property rights acquired? By working on it “...at least where there is enough, and as good, left in common for others.” (Locke)
Objection Avoiding the ‘Swiss Cheese problem’: Can this model account for the fact that states claim unified territorial rights (i.e. continuous boundaries)? If I buy a house in Paris, why should I be subject to French jurisdiction? Maybe the previous owner had contracted to be under French jurisdiction, but I haven’t. Reply: it’s part of the original contract that there are constraints on how the chunks of land under the state jurisdiction can be sold, bought or exchanged. The most important is that the new owner accepts the jurisdiction of the state where the land bought is.
Ownership right Right to jurisdiction Is this a convincing reply? If territorial rights are grounded on individual consent to give the state jurisdiction, then individuals should be free to withdraw consent or assign jurisdiction to another state or to give away their property without constraints of sort. If the state has the authority to deny this power, then the right to jurisdiction must be grounded on something other than consent.
Collectivist version of the Acquisition Theory Territorial rights are possessed by groups, rather than by individuals. + States are the relevant groups States transform the land through collective labour thereby creating a valuable relationship with it. This relationship is what grounds the territorial right to it (Cara Nine). NB: No need to refer to the property rights of individuals forming the state
Objection Collectivist version of the Acquisition Theory avoids the ‘Swiss Cheese problem’ But Can it justify the right to exclude outsiders? Lockean story of acquisition: Communal use of the Earth (everyone is at liberty to use land as she pleases) ↓ By working on the land we acquire: • The right to unilaterally appropriate the land • The right to exclude others from it
The right to exclude What justifies the right to exclude? Having mixed our work with the land explains why we are at liberty to appropriate it and do what we want with it. But does this also justify forcibly excluding others?
Attachment-based Theories These theories justify territorial rights by appealing to the special relationship that certain groups have with the land where they reside. By interacting with a certain territory, national or cultural groups or particular ethno-geographical communities develop a special attachment to it . ↓ States are created to protect and maintain the core values of these groups
Ownership NB: Ownership and the Lockean story do play a role within this account. Relevant groups work the land thereby improving it and increasing its value, both material (as in Acquisition theories) and symbolic. Symbolic value of the territory: territory becomes an essential ingredient in the shared history of the group. Its members develop a collective attachment to the land and its features.
David Miller, National Responsibility and Global Justice ‘‘[T]he case for having rights over the relevant territory is then straightforward: it gives members of the nation continuing access to places that are especially significant to them, and it allows choices to be made over how these sites are to be protected and managed’’
Objections • What about cases in which different groups have conflicting claims on the same territory? • Some of the shared histories in question are histories of blood and injustice • (Once again) this argument justify the right to jurisdiction, but can it justify the right to exclude?
The right to exclude Why should the liberty right to work on the territory and enjoy its value that we are in a special relationship with include a claim right to exclude outsiders from accesing it? Possible reply: Doing so is necessary in order to protect symbolically significant areas. Is this true? (Think of buildings and areas considered UNESCO “common heritage of humanity”)
Legitimacy-based theories States enjoy political legitimacy because they protect basic human rights and guarantee the rule of law But They can do so only if they have control over a certain territory. For example, having territorial rights is necessary in order to enforce the rule of law.
Anna Stiltz, Nations, States and Territory “State’s claim to territory is rightful if and only if • the state effectively implements a system of lawdefining and enforcing rights, especially property rights, on a territory; • its subjects have a legitimate claim to occupy that territory; • that system of law “rules in the name of the people,” by protecting basic rights and granting the people a voice in defining them; and • the state is not a usurper. On this view, states have territorial rights because their jurisdiction serves the interests of their subjects.”
Constraints on the territorial rights of states Conditions to be met for states to have a right to have territorial rights: • Not violating and effectively protecting human rights (necessary in order to have legitimacy) • Not being the product of usurpation of other people’s land. Non-usurpation condition re-introduces historical consideration in the picture. Moreover, it presuppose that there is a “correct” way to acquire territorial rights without usurping. What is it?
The right to exclude Having control over the territory might be necessary to guarantee the rule of law etc. But Can this justify the right to exclude? If so, how?