Territorial Rights: Concept and Justification
| Published date | 01 June 2012 |
| Date | 01 June 2012 |
| DOI | http://doi.org/10.1111/j.1467-9248.2011.00911.x |
| Subject Matter | Article |
Territorial Rights: Concept and Justificationpost_911 252..268
David Miller
University of Oxford
This article begins by analysing the idea of territor ial rights.It argues that the r ights over territor y standardly claimed
by states can be separated into three main elements:the r ight of jurisdiction, the right to the territory’s resources and
the right to control borders. A full justification of territor ial rights must therefore addresseach of these three elements.
It proceeds to examine theories that treat states as the primary holders of terr itorial rights. Utilitarian theories (such
as Sidgwick’s) maintain that states acquire such rights simply by maintaining social order over the relevant terr itory.
Such theories are insufficiently discriminating and cannot deal adequately with the issues raised by invasion and
secession. An alternative view adds the condition that the state must be the legitimate representativeof the people who
(innocently) occupy the territory, but this too faces an objection. A historical version of the statist theory claims that
states gain territorial r ights by increasing the value of terr itory over time, but such historical entitlement theories are
implausible in the case of states. In contrast,the article argues that an adequate justificatory theory of ter ritorial rights
must treat peoples – nations or indigenous groups – as the primary bearers of these rights. Peoples gain such rights by
adding material value to the territory in question, and endowing it with symbolic value. After responding to objections
from global egalitarians and others, the article concludes that such a justificatory theory can unite the three elements
of territorial r ights distinguished at the outset.
Keywords: territory; rights; state; nation; culture
In this article, I examine what it means to say that a state holds terr itorial rights over a part
of the earth’s surface, and what can justify such rights. I do not try to justify the idea of the
territor ial state itself.1This is sometimes treated as a conceptual necessity – a state by
definition is an entity that wields political authority over a specific territory2– but the
question still arises why we should have states defined in this way.Why not instead develop
structures of political authority that are not linked to particular geographical sites? This is
an important question, but I shall not try to address it here. Even if we are able to offer a
convincing defence of the general idea of the territorial state, questions still arise about the
nature and extent of the rights over territory that states should possess. And we must also
be able to explain how a state can justifiably exercise such r ights over a particular area of land
– that it needs to possess some territor y in order to be a state does not entail that it needs
to exercise rights over the geog raphical area that it now claims as its own.
These questions acquire practical relevance in a number of contexts. The first and most
obvious is when territorial r ights are disputed between states, or between an existing state
and a secessionist group that would like to form a new one. Can the state of Israel make
justifiable claims to parts of the West Bank, or does the whole of that ter ritory rightfully
belong to the Palestinians? Were Scotland to vote to secede from the UK, could this be
resisted on the grounds that Scottish territory belongs not just to the Scots but to the Br itish
people as a whole? A second set of questions concerns rights to the resources that may be
found in any given territory. What justifies the state’s claim to own and control these
resources?Why should they not be treated as part of the common heritage of mankind, and
shared on that basis through some system of redistributive taxation between states? And last
bs_bs_banner
doi: 10.1111/j.1467-9248.2011.00911.x
POLITICAL STUDIES: 2012 VOL 60, 252–268
© 2011The Author.Political Studies © 2011 Political Studies Association
but not least, some fundamental questions about immigration and immigration controls
cannot be settled without first developing a theory of territor ial rights. For any state that
asserts the right to exclude would-be immigrants must also assert that such people have no
right to enter the terr itory it claims without its permission, and this would be challenged
by anyone who held that the world is initially owned in common by the whole of mankind,
so any exclusive territorial claims must require the consent of those who would be
excluded.
Such questions form the backdrop to the investigation that follows. Let me note at the
very beginning that it is by no means clear that we should regard states as the primary
possessors of territor ial rights. It may indeed be states that characteristically exercise such
rights, but perhaps they exercise them derivatively on behalf of something or somebody
else, as a lawyer exercises my rights when he sues someone on my behalf for breach of
contract (see also Stilz, 2009, p. 190). A natural way to think about terr itory is to see it
as involving a triangular relationship between first, a piece of land, second, a g roup of
people who live on that land and, third, the political institutions that govern those
people in that place. Assume for purposes of argument that there is a justified claim to
territor ial rights in some place: the question is whether the primary holders of those
rights are the people who inhabit the land, or the state (or state-like entity) that governs
them. The answer to this question will depend on the justifying theory one adopts, to
be investigated later. The important point at this stage is that even if one accepts a
territor ial definition of the state (such as Weber’s), this does not settle the question of
whether states get their territor ial rights directly, or indirectly as agents of the people
they govern.
What, then, are the territorial r ights that we normally understand states to be claiming
and exercising? We can distinguish three main elements (compare Simmons, 2001, p. 306,
who distinguishes five elements altogether). The first is what is often called the right of
jurisdiction, that is,the r ight to make and enforce law throughout the territory in question.
If a state has territor ial rights over some area, then anyone physically present in the area in
question is subject to that state’s legal system and may be punished if he or she violates one
of its rules. The second is the right to control and use the resources that are available in the
territor y. If the territory contains extractable mineral resources, for example,those resources
are at the state’s disposal to make use of as it sees fit. The third is the right to control the
movement of goods and people across the borders of the ter ritory. Recall that at this stage
I am simply trying to get clear about what terr itorial rights actually mean, not about
whether they are justified,or what limits may be placed on them. So even if one thinks that
states should allow free movement of goods and/or people across their borders, this is
consistent with saying that a state that has territorial r ights is entitled to control that
movement if it so decides.
It might be questioned whether there really are three separate elements here. After all,
if a state has the right of jur isdiction, then it has the right to legislate about the use to be
made of resources within its territory, and so the second element seems to be contained in
the first. Similarly the right of jurisdiction will include the r ight to make rules governing
border crossings. However, even if in a for mal sense one could squeeze the three elements
into one bag, there are good reasons for not doing so. The right of jurisdiction is pr imarily
TERRITORIAL RIGHTS 253
© 2011The Author.Political Studies © 2011 Political Studies Association
POLITICAL STUDIES: 2012, 60(2)
To continue reading
Request your trial