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Which people and what land? Territorial right-holders and attachment to territory

Margaret Moore

International Theory / Volume 6 / Issue 01 / March 2014, pp 121 - 140DOI: 10.1017/S1752971914000062, Published online: 06 March 2014

Link to this article: http://journals.cambridge.org/abstract_S1752971914000062

How to cite this article:Margaret Moore (2014). Which people and what land? Territorial right-holders andattachment to territory . International Theory, 6, pp 121-140 doi:10.1017/S1752971914000062

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XXV: Liberal Democracy, edited by John Chapman and J. Roland Pennock, 13–47.New York and London: New York University Press.

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doi:10.1017/S1752971914000062

Which people and what land?Territorial right-holders andattachment to territory

MARGARET MOORE

Department of Political Studies, Queen’s University, Kingston, Ontario, Canada

E-mail: [email protected]

Introduction

Relatively little has been written until recently on territory in politicaltheory, and many of these accounts are limited to showing that territory isjustified in general as necessary for the proper functioning of a state, or anecessary requirement for collective self-government. This is insufficient,however, since, even if we can show that collective self-determination isgood or that the state form is justified, and that territorial right is entailed inthe exercise of this good or in the proper functioning of a state, we need tohave a method for ‘attaching’ specific people to specific bits of land. Callthis the attachment problem. This paper considers, in parts one and two,respectively, two dominant theories of the territorial right-holder, and twocorresponding views of attachment of peoples to territory that are con-sistent with or implied by these theories: nationalist theories and legitimatestate theories.17 Nationalist theories tend to view cultural groups as

17 There is a third theory of territory, derived from Locke, in which territory is conceived, notas a straightforward domain of jurisdictional authority but as an amalgam of individual propertyholdings. For contemporary accounts inspired by Locke, see Simmons (2001, 300–26) andSteiner (1992, 87–94). For a Lockean-inspired mixed account, see Nine (2008); and fordiscussion see Moore (2012, 339–51).

Symposium ‘Theories of Territory beyond Westphalia’ 121

pre-political right-holders and to justify rights to land through cultural,historical, and identity-related arguments, involving the relationship of thecultural group to the territory. They do a good job, therefore, of explaininga group’s ‘attachment’ to a particular geographical area, but are weaker inexplaining why that cultural group is entitled to a full set of territorialrights. Legitimate state theories, derived from Kant, view territory as adomain of jurisdictional authority, and are better at justifying the territorialrights of the state, but do a poor job of explaining the specific principle(s)that attach particular peoples to particular bits of territory, and hascounter-intuitive implications for territorial rights theory in cases offailed states and unjust states. This paper presents a third, alternativetheory, which borrows from both conceptions, and which, I argue, offers adefensible account of both the kind of thing that territory is, and of theappropriate principles for attaching specific peoples to specific geographicalareas. Although this paper focuses on a theory of ‘attachment’ rather thanboundary drawing, specifically, this account does achieve something: itreveals ‘heartlands’ of particular groups. This would still require principlesto decide on precise boundaries, preferably in accordance with agreed onrules, in part because people are not homogeneous groups, encapsulated onspecific lands. It also discusses the implications of the different conceptionsfor how we should think about conquest, failed states, and injustice.

Cultural nationalist accounts

Philosophical liberal nationalists have been at the philosophical forefront ofexamining people’s relationship to territory, and have advanced a numberof arguments to justify the nation’s rights over a particular land. A nation,Miller (1995, 27) writes, is a ‘community (1) constituted by shared beliefsand mutual commitments, (2) extended in history, (3) active in character,(4) connected to a particular territory, and (5) marked off from other com-munities by its distinct public culture’. This definition combines objective,cultural features with subjective features, such as shared beliefs and mutualcommitments. Miller’s account is based on a complex argument about theinter-relationship between group culture, land, and state territorial rights.Although criticisms of his argument have focused on different aspects of thenexus, much of the focus has been on the way, in which the culture–landargument does not seem to justify clearly territorial right as we know it.The relationship between group culture and land is established through

an argument that emphasizes the symbiotic relationship between them. InMiller’s view, the people who inhabit a certain territory shape the land thatthey occupy; their culture is mixed with the physical characteristics of theland, and the physical characteristics shape the culture that they develop.

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Through custom and practice, as well as by explicit political decision, theycreate laws, establish individual or collective property rights, engage inpublic works, and shape the physical appearance of the territory. Over timethis takes on symbolic significance as they bury their dead in certain places,establish shrines or secular monuments and so forth. There is a sense inwhich the cultural national community can come to have ‘rights’ to land bymixing its culture with it (Meisels 2005, 95; Miller 2007, 217–18). For thegroup, the land has, in addition to universal value, particular value: it isimportant to the culture and identity of the group in question.While this argument suggests that particular land is important for parti-

cular groups, this does not yet constitute a justification of territorial right.This brings us to the third element of the culture–land–territorial rightnexus. Miller (2012, 263) argues: it is ‘not difficult to justify rights ofjurisdiction on the basis of what has been said. Rights of private propertyalone will not do the job of protecting this added cultural value] because a)such rights are always susceptible to being redrawn by whoever holdsrights of jurisdiction and b) much of the embodied value that the group hascreated is likely to be located in public space – in public architecture,landscapes of historic significance, and so forth. The group needs tomaintain overall control over the territory in order to secure that value overtime, and for that it needs rights of jurisdiction such as those normallyexercised by a state’.There are three basic criticisms of this cultural nationalist account: the

agent-indeterminacy criticism;18 the territorial under-inclusive criticism;19

and the group over-inclusive criticism. All three have been articulated mostforcefully by Anna Stilz, who has questioned the extent to which the culturalnationalist account, which she associates primarily with Miller’s work,grounds territorial (jurisdictional) rights, as we know it. I believe – though do

18 The agent-indeterminacy criticism questions the criterion for determining whether anaction belongs to an individual agent or the collective agent, of which the individual agent is amember. ‘Much of the improvement of land that goes on within a national territory – theconstruction of homes, churches and the like – is not carried out by the nation, but by individualsor private association. ‘The nation’ does not mix its labor with those objects in any sense exceptmetaphorically, so why shouldn’t the individuals who actually labored on the objects in questiongave private property rights in them?’ (Stilz 2011a, 577).

19 This criticism presses on the problem of undeveloped areas. ‘[I]f the only explanation forthe acquisition of jurisdictional rights is that land has been labored, then the state cannot havejurisdiction over undeveloped areas’ (Stilz 2011a, 577). The problem here is under-inclusivenessof territory, and, if this criticism goes through, it raises questions about whether this argumentcan generate a theory of territorial right as we know it. I do not think this criticism is fair,however, since cultural nationalists do not simply talk about labour but about attachment to landand so can account places between where people live. Indeed, her account, which is individualist,deals with this less well.


not argue the point here – that Miller could address the first criticism, that thesecond one misses the mark, but that the third one, which focuses on thecultural component of the nationalist definition of the nation, is the mosttelling. Cultural nationalism, she complains, ‘seems to grant territorialjurisdiction to any group that constructs a culturally marked infrastructure,including immigrant groups’ and cites the case of Little Havana inMiami (Stilz2011a, 577). At this point, Miller might object that he distinguishes nationalgroups from immigrant groups in his account of the five components that arenecessary to qualify as a ‘nation’. However, since his account of the relation-ship of culture to land (cultural infusion) and the relationship of that toterritorial rights (or at least rights of jurisdiction) is doing most of thephilosophical work ‘attaching’ people to land, it is not clear why only nations,as distinct from other cultural groups with the right sort of identity andland-transforming capacity, are not also entitled to jurisdictional rights.Although I think that Miller’s argument could address this criticism, it is

only by modifying his account in the direction that I suggest in part three ofthis article. As it stands, there is a gap between Miller’s argument that‘attaches’ national groups to particular pieces of territory and the claim thatthis grounds territorial rights.

Legitimate state theory

If the cultural nationalist account of territory offers a plausible theory ofattachment, but a weaker link between territory and jurisdictional authority,legitimate state theory has an opposite, and, I would argue, more seriousproblem. This account of territorial rights, associated with the work ofKant, and recently defended, in a sophisticated and nuanced form, by bothLea Ypi (2012) and Anna Stilz (2011a), has difficulty articulating principlesof attachment and has counter-intuitive implications in a number of cases.Indeed, it avoids these counter-intuitive implications only by incorporatingnon-Kantian elements into the theory, which brings the account muchcloser to the self-determination account that I defend in part three.Before elaborating on the precise account offered by Kant and con-

temporary Kantians, it is worth explaining the central contrast between thisaccount and the cultural nationalist account. In both Miller’s and Meisel’scultural nationalist theory, there is a pre-political conception of the people(the cultural nation) that has a connection to land, and which is the fun-damental holder of territorial right. The state is seen as a necessary instru-ment of ‘the people’ but not as the fundamental holder of territorial right. Inlegitimate state theory, put forward by Kant and developed in relation toterritory by Ypi and Stilz, the state is the fundamental holder of territorialright. It gains these rights by being legitimate, but it is the state that makes

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‘the people’ into one collective body through being subject to state institu-tions and participating in shaping these institutions (Stilz 2011a, 579).Kant’s main contribution to our understanding of the relationship

between territory and the state is through putting forward an account of theterritorial state as required by justice. According to Kant, individuals have apermissive claim to be in occupancy of land20 and to obtain objects, andboth activities are justified by the exercise of their freedom. However, theseacts are permitted only as long as individuals also endeavour to leave a stateof nature, that is, a state with no political authority and therefore lacking injustice, and submit to a common jurisdictional authority. This obligation isinitiated by the possession of things, which is justified in one sense as anextension of individual freedom but which also contradicts (other people’s)freedom, since removing things from common use prevents other peoplefrom enjoying the object in question.21 Since the exercise of my freedomseems to unavoidably involve restrictions on the exercise of someone else’sfreedom, the dilemma can only be resolved by reciprocal recognition ofeveryone’s obligation to respect the fundamental principles around theacquisition, transfer and use of objects in the external world, which wenormally think of as ‘rights of property’. This reciprocal recognitioninvolves creating a civil condition, which ensures that my freedom will berespected and that others’ freedom will be respected, an assurance thatcannot be met in the state of nature, and which transforms the use of theseexternal things from the coercive will of one person to the general will of ajurisdictional authority, because it provides a framework of general rules,which is the foundation of civil society.The main achievement of the Kantian account, therefore, is in explaining

why the state is necessary for justice and why individuals are obligated tosubmit to a state rather than remain in the state of nature. This is a powerfulargument for the coercive state, and for territorial rights as necessary forstate functioning. However, since Kant’s argument is directed, in the firstinstance, to demonstrating why in general states are necessary, and so

20 Kant articulates a right of occupancy, noting that the earth is limited and that people canand must inhabit a specific part of the globe. ‘Through the spherical shape of the planet theyinhabit, nature has confined them all within an area of definite limits. Accordingly, the onlyconceivable way in which anyone can possess habitable land on earth is by possessing a partwithin a determinate whole in which everyone has an original right to share’ (Kant 1970, 172).Kant is clear, however, that the right of occupancy does not extend to occupying land that isalready occupied by other peoples: ‘This does not, however, amount to a right to settle on anothernation’s territory, for the latter would require a special contract’ (Kant 1970).

21 It is thus not consistent with Kantian doctrine insofar as Kant claims that our innate right tofreedom must ‘coexist with the freedom of everyone in accordance with a universal law’ (Kant1970, 133).


justifying in general territorial rights, it does not show how particular statescan have authority over particular territories. Moreover, since the defenceof state jurisdiction over territory emphasizes its importance in realizingjustice, it has, I will argue, some counter-intuitive implications in cases ofannexation, injustice, and where the state is failed. In cases where a state isannexed by another state but the other state is more effective in securingjustice, it would seem to license the aggressor in thereby gaining territorialright. In cases where the state is unjust, it would seem that another state cangain control of the territory and implement a more just order, and therebygain territorial right. Moreover, in cases where a state is failed, it wouldseem that an effective state, which is able to implement rules of justice, canthereby gain rights over the territory. These results are counter-intuitive, asI will argue below; and they also do not correspond to international law,which is clear that aggression should not be rewarded; that intervention inan emergency, such as when the state is failed, can only be justified for theminimum amount of time necessary to return a functioning order to thepeople living on the territory; and that, if we viewed justice as the groundingprinciple of territorial rights, many states would not have the rights overtheir territory (as argued by Ayelet Banai in this issue).Stilz’s Kantian-inspired argument aims to address these potential

problems with Kantian theory by modifying it. She argues for two furtherconditions that help to specify why particular states have a right to a par-ticular territory. The conditions are (1) the legitimate occupancy conditionand (2) the non-usurpation condition. The legitimate occupancy conditionis based on people’s right to live in a place and pursue plans and goals. Stilzargues that states have territorial rights over the geographical space that isoccupied by the people they govern. This helps Stilz solve one aspect of the‘attachment problem’: a state ‘has no claim to territory that its people haveno prior right to occupy’ (Stilz 2011a, 579). This right to occupancy isbased on a more fundamental interest in autonomy, in securing the back-ground conditions for the exercise of choice. The non-usurpation conditionspecifies that the state has rights to territory if the state is not a usurper, thatis, as long as it did not violate justice by displacing another justice-enforcingstate. These conditions are at the heart of Stilz’s attempt to provide aresponse, broadly in line with Kant’s account of territory, both to the‘attachment problem’ and to the counter-intuitive implications of pressing atight link between justice, the state, and territorial rights.There are – as will become clearer below – two problems with Stilz’s

analysis. First, I will argue that these conditions cannot be simply added to aKantian analysis because they suggest that the appropriate right-holder isnot the state but the people. Second, in her account, the value of territorialrights is centred on their role in realizing justice, whereas, I will argue that it

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is primarily by realizing forms of collective self-determination. AlthoughStilz occasionally gestures in the direction of recognizing the value ofcollective self-determination, these gestures are not sufficient: as I will showin the final section of this paper, these do not represent amodification of herbasic statist account but suggest a wholesale rejection of it. It suggests thatthe people are the fundamental territorial right-holder, and that they do sothrough exercising their moral rights of occupancy and self-determination.In what follows, I will explicate an argument for viewing the people as theappropriate holder of territorial right in a way that coherently explains therelationship between state, territory, and people, and confers fundamentalstatus on the people in a way that cannot be reconciled with statism butdoes not collapse into cultural nationalism.

A non-statist self-determination account

In view of these challenges, I propose the following principle for demar-cating territory. A ‘people’ has jurisdictional rights (and the related liberties,claims, and entitlements that generally flow from this) over land in whichmembers of the group reside, if they legitimately reside on the land.22 Thereare three distinct elements embedded in this principle. The first pillar of thisaccount is a moral right of residence, which attaches to individuals. Since,on this account, the group – a people – must be comprised of individualswho are legitimately resident on the land, we are confronted with thequestion of how to identify a people and what distinguishes it from otherkinds of groups, which are not entitled to territorial rights (even thoughthey might be composed of the very same individuals). The second elementin the account is then an account of the group: I argue that a ‘people’ hasrights to jurisdictional authority over the territory on which its members arelegitimately residing if and only if (a) there is a shared political commitmentto establish rules and practices of self-determination on the part of a widemajority of members, (b) they have the political capacity to establish andsustain institutions of political self-determination, and (c) they possess an

22 What does it mean to be legitimately resident in a place? Obviously, a paradigm case iswhen people come to an uninhabited island and reside there without committing any injustice.However, it is not confined to this (relatively rare) case: most people reside in places that wereoriginally inhabited by other people or other groups. Since the justification for these place-relatedrights is in terms of providing a background context for people’s projects and relationships, andthe claim that people become attached to places as well as people, these rights cannot be immuneto the kinds of changes that happen over time, as people develop new projects and relationships.Place-related rights are not transferred over multi-generations but are subject to something likeWaldron’s (1992) supersession thesis. For a full discussion of the idea of legitimate residency, seeMoore (2013, 1–19).


objective history of political cooperation together, through, for example,state or sub-state institutions, or in a resistance movement. The idea is thatthe people constitute a collective agent in the sense that the decisions andactions of the group are different from, and not reducible to, the decisionsand actions of any individual member of the group: they can be explainedthrough the complex ways in which individuals operate in relationshipswith others. In this political relationship, they participate in and benefitfrom these relationship goods; and the main good is that of creating acommon life together, producing or maintaining institutions and practicesthat help to shape the collective circumstances of people’s existence. Third,this argument is grounded in terms of a people’s moral right of self-determination, that is, its right to shape the collective conditions of itsexistence and make decisions over its collective life.In this paper I do not discuss at length the moral right of residence, in part

because there is convergence by all the competing theories of territory onthe idea that rights attach to individuals who live on and are settled on land(Walzer 1983, 43; Moore 2001; Stilz 2011a; Lefkowitz unpublished). Onmy account, a moral right of residence attaches to individuals and has threecomponents: a liberty right to settle in an unoccupied area; a right of non-dispossession, by which I mean a right to remain, at liberty, in their homesand communities and not be removed from the place of one’s projects,aims, and relationship; and a right of return, when an individual has beenunjustly dispossessed of the land on which s/he has a right to reside. Themoral right of residence, or some form of occupancy right, is normallyjustified either by arguing for the importance of the particular place that welive in for an autonomous life; or by invoking welfarist considerations thatpeople need security of place to live well and function effectively, whetheror not people are autonomous in the liberal sense. It is important to thesecond kind of justification that there is strong empirical evidence thatmany of the projects and relationships that give meaning to one’s life canonly be pursued in a particular location, with a particular institutionalstructure and geography (Wilson 1982; Brice-Bennet 1994; Moore 2013).While the right is an individual right, in the senses that it attaches to indi-viduals and protects individual interests, individuals are not isolated andatomistic but operate within a structure of relationships that give meaningto their lives. This individual right, then, is connected to a different sort ofplace-related right that attaches to groups that individuals are members of:a group right of occupancy. Although I do not have space to argue this here(but see Moore 2013), the central idea is that individuals have collectiveidentities that are also integral to their sense of who they are, and theircollective aspirations as members of these groups are an important partof their lives. Individuals have a right to a place not only because of a

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connection forged independently by individuals living in a place, but byindividuals as members of a collective, whose members share a geo-graphical location with one another. On this conception, the locus of groupoccupancy rights is defined by the projects and plans central to therelationship; and the central relationship for territorial rights, I will arguebelow, is that of peoplehood.I will also not defend specifically my view that territorial rights are

primarily rights of jurisdiction, rather than conceived of as somethinglike property. This point is accepted by the two leading types of theoriesdiscussed in this paper: nationalist theories, such as Miller’s, and justicetheories, such as Stilz’s. Both of these, like this theory, regard territoryprimarily as the geographical domain of the exercise of jurisdictionalauthority. Although it would require a complete theory of territory todemonstrate the inter-relationship between jurisdictional authority andother territorial rights – such as the right to control and make rules aboutnatural resources and the right to control borders for the passage of goodsand peoples – here I simply assume without a full or complete argumentthat the exercise of jurisdictional authority is the fundamental element ofterritorial right. I also assume that there are good reasons, connected toequal treatment of members within the territorial unit, administrativeconvenience for dispute resolutions, and to solve collective action problems,why jurisdictional authority takes a territorial form. This is not a con-troversial element in the debate between my theory, legitimate state (justice)theorists, and nationalists.

The ‘people’ as territorial right-holder

In the previous two sections of this paper, I argued that we need to avoid thepitfalls of both the nationalist reliance on culture and statism. In this sec-tion, I argue that the territorial right-holder is a collective agent, the people,which should not be defined in either statist or cultural terms. It is necessaryto articulate a clear picture of ‘the people’who hold territorial right beyondthe point made in the previous section that it is comprised of individualswho possess moral residency rights. This is a challenging task. It is nothelpful to appeal to international law and practice on this topic, for it isincoherent: it promises rights of self-determination to ‘peoples’ but thenlimits who counts as ‘a people’ in relatively arbitrary ways. Statist views,such as put forward by Stilz, have a plausible social ontology, because thestate is a stable, territorially limited set of institutions, which defines whocounts as ‘the people’. It is much harder to define the collective, ‘the people’without reference to a state or set of institutions that can give them


corporate identity. Miller’s cultural nationalist account avoids relying onan institutional structure to give the group corporate identity; instead, heappeals to objective cultural markers, which link both people’s identitiesand attachments, and land, but it is precisely this move which I argued givesrise to the group ‘over-inclusive’ criticism.In this section I argue in favour of a conception of ‘a people’ that meets

the following three conditions, all of which have a political component.First, they must share a conception of themselves as a group – they sub-jectively identify with co-members, in terms of either being engaged, ordesiring to be engaged, in a common political project. Second, they musthave the capacity to establish and maintain political institutions, throughwhich they can exercise self-determination. Third, the people have a historyof political cooperation together; we can identify objective and historicallyrooted bonds of solidarity, forged by political practices. These do notnecessarily presuppose that the people live within state or state-like insti-tutions; rather, as an extension of my criticism of Stilz, I argue here thatmany different forms of political cooperation can be important to creating a‘people’ with potential for self-determination.23 Each of these elements willbe discussed in turn.The first condition for constituting a ‘peoples’ specifies that it must be a

collective group, with collective agency, which acts together in organizedways, either through informal methods of coordination or throughmore formal methods (Copps 2006; Pettit 2007; Stilz 2011b). It is not anaggregate group that happens to share a certain feature, such as a groupof blue-eyed people. It must be united by what we might call, followingSearle, shared ‘we’-intentions. According to Searle (1998, 143–58), we candistinguish social activity from individual activity in virtue of the presenceof ‘we’-intentions, which, in Searle’s work, refers to collective, or shared,intentional states. As an adaptation of Searle, and moving away fromthe language of ‘intentions’, we could say that action is collective whenindividuals conceive of themselves as participating in a plural subject,which may not have a formal group structure (Gilbert 1989; May 2005).Similarly, Raimo Tuomela and Kaarlo Miller (1988, 367–89) argue thatgroups consist of collections of persons with a shared conception of them-selves as ‘we’ and that they act by way of a special kind of group-intention.The definition of ‘peoples’ then draws on this account of social group, and itdefines ‘peoplehood’, as distinct from other social groups, in terms ofa shared ‘we’, and especially a shared aspiration to exercise collectiveself-government.

23 I am grateful to Annie Stilz for pressing me on this point.

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One of the difficulties with the generic analysis in terms of shared inten-tional states or cooperative activity on behalf of a plural subject is that it isdifficult, in the absence of an institutional decision-making structure, to besure when there are these shared aspirations and shared recognition ofmembership. Elites acting on behalf of a group, or claiming to be repre-sentative of the group, will claim that there is this shared sentiment under-lying the group, which they represent. This is a serious problem. For thisreason, it is important that the first condition be strengthened: this meansrequiring that there be strong, persistent, empirically verifiable evidencethat they either exercise and value collective self-government, or they aspireto collective self-government. The aspiration can be subject to empiricalverification, either through clear evidence that the group has mobilized toachieve self-government, or there have been free and fair elections in whichparties are elected that have a platform of collective self-determinationfor the group.24 Although the evidence for we-intentions might involveexamining the way in which people vote, this account is not equivalent toWellman’s plebiscitary method, which is an aggregate account in the sensethat it aggregates people in accordance with their voting patterns (Wellman2005). Rather, voting patterns here simply supply evidence to support theclaim that there is a social group, which acts in concerted ways to achieveself-government. It is meant to challenge or support elite claims, but onlyrepresents one kind of evidence of the existence of a social group.Second, the groups must have the capacity for political self-determination.

The right of self-determination is contingent on the possibility that it can beexercised, and the form that collective self-determination takes has to be con-sistent not onlywith the aspirations of the group but the capacities of the groupto exercise it. One important condition is that the group has to be territoriallyconcentrated in an area that they legitimately occupy. Although, of course,there is some possibility of non-territorial self-determination for dispersedgroups, most significant kinds of self-determination, and especially the kindof self-determination that carries with it territorial right, involves havingjurisdictional authority over a geographical area, and the area is cotermi-nous with the area occupied by the group. This means that diaspora peopleor people that are not territorially concentrated on an area of sufficient sizeand resources to enable them to fulfil the functions of a state are not entitledto be collectively self-determining in a state, but they can exercise less robustnon-statist forms of self-determination, either in sub-state units or throughnon-territorial mechanisms.

24 This does not mean that it collapses into a purely plebiscitary account of self-determination:it is interested, rather, in offering a way to identify a collective agent, a people.


Finally, there must be historical evidence that the people do indeed con-stitute a single people rather than a collection of individuals, which can bediscovered through examination of the existence of political relationshipsto constitute the group. A people entitled to exercise collective self-determination (over a territory) is not a collection of individuals, but agroup whose shared identity has been forged and maintained by actualhistorical relations – such as a history of sharing a sub-state unit, or ahistory of political mobilization against an oppressive colonial state. Theterritorial right-holder should be characterized by group solidarities thatspring from a valuable history of shared political association, which will beimportant in creating the moral bonds that is necessary for the exercise ofcollective self-determination.

The value of collective self-determination of peoples

In this section I ask and answer the question: what values are served byconferring territorial rights (and specifically the right to jurisdictionalauthority) on peoples? The question of the values served by a right ofcollective-self-determination is important, because a theory of attachmenthas to link the account of territorial right-holder with the justificatoryargument that underlies territorial right in the first place. This was accom-plished in the cultural nationalist account by linking jurisdictional authorityover land with the preservation of value in the land. It was accomplished inthe statist account by linking the state, which has authority over territory,with the establishment of justice (combined with some fairly straightfor-ward reasons why the exercise of justice should take a territorial form).I suggested above that while this very tight normative connection gives usa strong reason for conferring rights on states, it is also part of the problem,since many states do not realize justice (nor do they function effectively).This leads proponents of legitimate state theory to offer a more modestaccount of the requirements of the state – that it be legitimate rather thanfully just. The account offered here in reply to this question does notemphasize justice nor the preservation of value in land, but the moral valueof self-determination.The right of self-determination of peoples is enshrined in Article 1, par. 2

and Article 55 of the United Nations Charter. I assume in this paper thatthis is also a moral (not merely legal) right to collective self-determination.This moral right follows from the idea that political communities arevaluable in part because they are spaces in which members co-create theirown political project and together implement their own conception ofjustice. Institutions of political self-determination gives expression to thecommunities in which people live; they express people’s identities; and they

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are an important forum in which collective autonomy can be expressed, andpeople can shape the context in which they live, and realize their politicalaspirations, free of external domination.The moral value of self-determination does not inhere in the fact that

through it people create objective justice; rather, the process of making therules that govern a people’s collective existence is itself morally valuable.People who exercise collective self-government have the institutionalmechanisms to shape the conditions of their existence, and their futuretogether, and are thereby more autonomous – or experience a different(collective) dimension of autonomy – compared with the strict individual(private sphere) protection of autonomy model.The right of self-determination, conferred on different similarly situated

peoples, also ensures that the international order is structured in such a waythat it supports the conditions of (inter-peoples) non-domination. A peoplecan be subject to domination, as is the slave to the master, even if theaggressive power or master does not actually interfere with the actions ofthe dominated. It inheres in the structure of relations, and especially theall-present threat of interference that affects the choices and actions ofdominated agents.25 The institutional mechanisms – the legal and moralinternational rights – by which a people realize collective self-determinationgives them protection from the threat of interference, and thereby ensuresthat inter-people relations are on a footing of relational non-domination,rather than structured by domination and subordination. At this point,however, it is necessary to say something about the conceptual connectionbetween collective self-determination and non-domination. They are kinconcepts and express very similar notions, so one might think that one maybe superfluous, and that a clearer analysis could be achieved by expandingonly one of them (Bachvarova 2013). Collective self-determination explainsthe moral value of territorial rights for each set of peoples, from the per-spective of each people, while non-domination is a relational concept,which considers the power relations among different peoples in the inter-national system. There is an interesting dynamic relationship between them.Recognition of a right of self-determination at the international level issupportive of relations of non-domination, because it facilitates people inmaking decisions free from the threat of interference; and non-dominationis an institutional precondition for the realization of collective self-determination. The two concepts are related and mutually reinforcing,but not identical.

25 As Pettit (1997) argues, domination exists when the relationship between two agents issuch that one agent is subject to arbitrary interference, or to the constant threat of arbitraryinterference, by another agent.


Applications

The theory presented so far explains most of our intuitions about theappropriate relations between people and state in the inter-state order. Itcan account for our intuitions in cases of (a) a failed state; (b) a conqueredstate; and (c) an unjust state.26

Consider first the case of a failed state, by which I mean a state that failsto exercise authority throughout its territory, where large swathes of landare in the control of lawless bands of criminals. One of the classic examplesof a failed state is Somalia. On the self-determination account advancedabove, there is an empirical question that is important to any assessment ofthe rights that attach to failed states. One of the conditions for counting as‘a people’ who are entitled to territorial rights is that they must be capableof exercising collective self-government. In a case where a people (e.g. theSomalis) have conferred on them by the international community jurisdic-tional authority over their territory, but they are unable to exercise thatauthority effectively, the important question is: why? If they are incapableof doing so, then the exercise of territorial rights should fall to some otheragent. But we should not infer from the empirical fact of a failed state thatthe Somalians are incapable of creating a viable political order. They havemany of the conditions necessary to exercise territorial self-government:they are geographically concentrated on territory that they occupy notunjustly; they do not seek to be part of another state or ruled by an externalpower, so we can assume that they wish to exercise collective self-government as Somalians. There may be many reasons why Somalia is afailed state – including menacing external neighbours or lack of effectivestate infrastructure – none of which speak to the innate ability of Somalians togovern themselves as a people; and if this is so, then the right conclusion is toassist the Somalians in their endeavour to create a functioning self-governingcommunity, both through respecting principles of non-intervention, so thatthey can exercise control over their own affairs, and by facilitating the creationof what Rawls called ‘favourable conditions’ to ensure that they can becollectively self-governing.This is superior to the statist account of territorial rights, which reasons

from the fact of no effective state and therefore no justice to the conclusionthat they ought not to have territorial right. On the statist view, if Ethiopiaor some other adjacent state, or even some distant power (the US) were ableto impose order and protect human rights in Somalia, they would therebygain territorial rights (rights to jurisdictional authority, to regulate, sell, andextract natural resources, and the right to control entry, and exit). This does

26 These examples are familiar in the literature and are dealt with by Stilz (2011a).

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not accord with our own sense of justice nor with accepted internationalnorms. It is counter-intuitive because it denies the people on the land thepossibility of exercising their own forms of government, and to be collectivelyself-determining over that territory and it is contrary to international norms,too – for while it is sometimes thought that humanitarian intervention isjustified in certain conditions, it is also thought that the intervention should beas minimalist or as temporary as possible, and that the ultimate aim is torestore jurisdictional authority to the people living on the land.What about the case of a conquered state? Who has territorial rights

when a state has been conquered? In international law, the answer is clear.The international order does not permit aggression, and so does not conferrights on a state that takes over the territory of another by force; that wouldsimply create perverse incentives. This consequentialist line of reasoningcan be applied to all theories of territorial right-holders and so would seemto suggest that there is agreement that acquiring territorial right as a resultof conquest is disallowed. The theory advanced here – emphasizing themoral and legal right of self-determination of peoples – does better thanthis, however. It gives a non-consequentialist explanation of the wrong ofconquest. The problem with conquest is that it violates peoples’ right to beself-determining. It is not about the stability of rules of the internationalorder, nor imposing a non-usurpation condition on the exercise of terri-torial right to avoid perverse incentives, although all this is true, but thatconquest violates self-determination. Moreover, on the theory advancedabove, since the territorial right-holder is the people, it is not possible toacquire the moral right to exercise authority over territory from the peopleas a result of conquest of the state, because the people are the territorialright-holder and as such have the moral rights to reconstitute themselves ina political community.The self-determination account is also superior to statist theories of ter-

ritorial rights, which tend to invoke a non-usurpation condition, andemphasize the violation of justice. Legitimate state theories, such as Stilz’s,are not satisfied with consequentialist reasons for denying territorial rightsto usurping states. They justify the non-usurpation condition by arguingthat states have rights to territory if the state did not violate justice bydisplacing another justice-enforcing state. This line of argument is in accordwith the Kantian story about justice, but raises another kind of problem,namely, that it might be that the conquered state is in fact an unjust stateand/or the aggressor state (both of which apply in the case of the Allieddefeat of Nazi Germany, and will be discussed in relation to the thirdproblem, of injustice, below).This brings us to the case of an unjust state. Who has territorial right

in cases where the state fails to live up to standards of justice (or, more


minimally, legitimacy)? In the case of an illegitimate state that has beenconquered, who, or what, would have territorial right? Does it meanthat another state that met the minimalist threshold of justice orlegitimacy could thereby gain territorial right (on legitimate state theory),simply by acting in the interests of the people who are occupantsof the territory? This is a parallel question to the one raised above, whereI asked who has territorial right in the context of a failed state?These questions are pressing for statist accounts that link territorial rightwith justice, because it seems to follow that injustice would nullify therights over territory.This is not a problem, however, for self-determination accounts, in which

territorial rights are justified by reference to the moral value of ensuring thatmembers of the political community can have control over the collectiveconditions of its existence.27 Injustice is a terrible thing, and it should bemetby resistance, rebellion, or revolution, but it would be counter-intuitive tosuggest that people who suffered injustice at the hands of their governingregime should thereby also be denied the possibility of exercising collectiveself-government at all because some other justice-producing entity canthereby be entitled to govern the territory. This result is deeply counter-intuitive and suggests a very passive view of the relationship between thegovernment and its subjects.Significantly, contemporary attempts to modify Kant’s account have

recognized the problematic nature of the justice account in cases such asthis. Consider, for example, Stilz’s (2011a) discussion of Nazi Germany,which is clearly an illegitimate state, and therefore not entitled to territorialright. In 1945, it was defeated and occupied by the Allied powers: it cannotbe claimed that the Allied powers violated justice by defeating Germany inwar. The legitimate state account of territorial right seems to justify theAllied (occupying) powers in gaining territorial right by imposing a systemof just laws and rules over the territory and incorporating the territory intotheir own. Yet, this seems counter-intuitive for the same reason that thestatist treatment of the Somalia example seems counter-intuitive. We mightagree that the Nazi state is illegitimate, but we do not thereby think thatthe German people (or the Somalian people) should lose their previouscapacity to make rules to govern their collective life, and be therebycollectively self-determining. (Of course, on legitimate state theory ofterritorial right, the German people do not lose this right, since it is held bythe state, not the people.)

27 This does not mean that justice and injustice are irrelevant to territorial questions (there areimportant issues of the fair distribution of benefits and burdens) but it does mean that these donot directly justify various kinds of rights over territory.

136 MARGARET MOORE

In order to respond to this objection, Stilz modifies the non-usurpationcondition so that it does not simply refer to the non-usurpation of alegitimate state. There is, she notes, a ‘widely shared intuition that for suchan annexation [the US annexing Germany in 1945], there must be someexpression of collective consent on the part of the annexed group’ (Stilz2011a, 590). She notes that this is a difficulty for her theory since hertheory denies that there is a pre-political nation, independent of the state,and it denies that consent is necessary for state legitimacy. Nevertheless,she argues that ‘unilateral annexation [of Nazi Germany by the UnitedStates,] would infringe the residual right of the German people in theirterritory. This gives the German people a claim against annexingstates, even when their own states fails or becomes illegitimate’ (Stilz 2011a,538). How can a statist analysis possibly explain these residual rights toterritory? Stilz answers that she does not rely on a pre-political ‘nation’;indeed, if she did, it would mean that her argument has just collapsedinto the cultural nationalist one. Rather, she writes: ‘Recall that on thelegitimate state theory the people are made into one body by beingsubject to common institutions and by participating together in shapingthese institutions’ (Stilz 2011a, 592). On her view, while a people canonly be created by being united into a state, once a people have been socreated, through the coordinated social behaviour that marks a state,they develop moral bonds that persist even when the state fails orbecomes unjust.This is the right sort of conclusion, but it is the wrong kind of argument. It

appears that Stilz relies on an implausible empirical claim to maintain apurely statist account, where she claims that ‘only a history of sharing astate demonstrates the existence of the moral bonds that support politicalauthority’ (Stilz 2011a, 593). If this is intended to be an empirical claim,about what kinds of ties are necessary to forge a ‘people’, it is implausible,since there is ample evidence of state failure to ‘nation-building’, tobuild a single people, and some evidence of state success in units that didnot have prior institutional recognition. Here, Israel is a paradigmaticexample, but many countries were carved out of the defeated (Austro-Hungarian, Ottoman, and German) empires after World War 1 and wenton to be successful states, even though the state had no prior history as astate. It is possible – conceptually possible and empirically true too – that ahistory of cooperation against a state or against a usurper or a settler group,might also forge the moral ties that could sustain institutions of justice. If,on the other hand, Stilz’s argument is intended to be a normative claim, weneed to be given reasons to exclude forms of political mobilization thatare not institutionalized in a state but which express strong ties andcooperative practices.


Conclusion

The account of territorial rights developed in this paper takes as the primarytask of a theory of attachment that of establishing heartlands, and regardsthe drawing of precise boundaries, both between states and within states,as having a strong conventional element, because human groups arenot hermetically sealed, mentally or physically. Boundaries are not fullyjustified normatively, but the identification of a group heartland represents,I contend, something of an achievement.I have also argued that this account is superior to the accounts offered

by both Miller and Stilz. The problem with Miller’s nationalist accountis that he assumes that cultural infusion of land is an essential featureof the territorial right-holding group, and that raises the problem ofover-inclusiveness. It would not be difficult to modify his account in thedirection of mine. After all, many groups that seek to be collectively self-determining are mobilized along lines of language or religion or culture,but none of these are essential to the reason why they are the appro-priate (territorial) right-holding group. The jointly necessary and suffi-cient conditions for to be the territorial right-holder is that the groupseeks or aspires to be collectively self-determining as a group; that it iscapable of exercising self-determination and making rules to govern itscollective life together; and that it has a history of engaging in suchcooperative practices.Stilz’s legitimate state theory is also problematic, but to address the

question of unjust states and failed states she comes close to recognizingthat the appropriate right-holder cannot be the state, but the people.However, she retains her statism by affirming the claim that only agroup that had exercised statehood could have the right kinds of unityto justify according them territorial rights. But this is simply false. Thereare political communities that seek to be self-determining from a state,and the state in which they live has failed to develop the right kind ofunity and identity. Sometimes, they have had institutional recognition oftheir group-based identity in a sub-state unit, or they have developed theappropriate kind of cooperative practices through mobilizing against thestate. Some areas, like Ireland, have sought collective self-determination(from Britain) without any form of institutional differentiation. Irelandwas an integral part of the United Kingdom, electing MPs to theWestminster parliament since 1801, but this internal representation wasinsufficient, as they still sought to be self-governing as a separate people/island. Of course, living in a state can help to underwrite institutionalreciprocity and practices of cooperation, but these can also be developedin other ways, such as through cooperation and mobilization designed to

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affect liberation against an oppressive state or imperial power. Thisthought is captured by the non-statist and non-cultural account of thepeople defended here.

Acknowledgements

I am grateful to Ayelet Banai, Ludvig Beckman, David Miller, UlfMorkenstam, Cara Nine, David Owen, and Lea Ypi for their helpfulcomments on the earlier version of this paper, as well as the anonymousreferees for International Theory. This work was supported by a SocialScience and Humanities Research Council of Canada research grant, forwhich I am also grateful.

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doi:10.1017/S1752971914000074

The territorial rights of legitimatestates: a pluralist interpretation

AYELET BANA I

School of Political Sciences, The University of Haifa, Haifa, Israel

E-mail: [email protected]

Introduction

Any complete theory of territorial rights needs to address the particularityproblem: which group, individual, or institution should hold territorialrights in which particular territory? (Nine 2008a, 2012, 27; Stilz 2009;Kolers 2012; Miller 2012).28 According to the legitimate state theory,legitimate states and they alone have territorial rights over their territories;illegitimate states and non-state entities do not, as a rule, have them (Stilz2009, 2011). In this article, I distinguish between two interpretations ofthe legitimate state theory that differ from one another in their conceptionsof statehood and of legitimacy. The first interpretation – call it the

28 Today nearly the entire land surface of the Earth and its population are under the jur-isdiction of one state or another. Accordingly, the particularity question supposes no hypotheticalsituation, in which geographical areas are allotted a priori. Rather, we begin with the existingallocation and ask whether revise it and how.

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international theory which people and what land? territorial right- holders and attachment to...

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