'A Land without a People': an Evaluation of Nations' Efficiency-based Territorial Claims

This paper considers the role of efficiency arguments in grounding territorial rights from a liberal perspective. The view advanced here is pitted against some recent arguments voiced by Margaret Moore opposing the inclusion of any efficiency criterion in our moral reasoning about territorial entitlement. Though I argue against this view, my own conclusion – favouring the adoption of only a moderated version of such principles – is a relatively mild one. It maintains, on the one hand, that the beneficial use of land is morally relevant to determining its rightful owner, but, on the other hand, it also recognizes the limitations of any such principle of utilization. Ultimately, there are good moral reasons for viewing the way in which a given land has been put to use as a relevant component (though admittedly only one) of our account of territorial entitlement.     

Property without authority? Between natural law and the Kantian state

ABSTRACT

In Territorial Sovereignty, Anna Stilz seeks to combine a Kant-inspired moral justification of the state with a natural law-inspired account of ‘foundational title’. The aim of my essay is to show that the contrasting ways in which these two frameworks conceptualize the relation between property (or rights over objects more generally) and authority lead to tensions on two levels of Stilz’s own argument. Concerning individuals’ occupation of land, the question is why some rights over objects can be acquired pre-politically (i.e. occupancy rights), while others cannot (i.e. property rights). And concerning states’ claims over territory, it is unclear whether state entrance basically ‘absorbs’ our political obligations, or whether states have a duty of justice to establish more ambitious (and possibly coercive) forms of global government. The underlying question is whether, or to what extent, Stilz remains committed to Kant’s unconditional justification of territorial sovereignty and, if so, how the very idea of natural rights (over objects in particular) can be made to fit into such an account.     

Review Article: The environmental turn in territorial rights

Recent theories of territorial rights could be characterized by their growing attention to environmental concerns and resource rights (understood as the rights of jurisdiction and/or ownership over natural resources). Here I examine two: Avery Kolers’s theory of ethnogeographical plenitude, and Cara Nine’s theory of legitimate political authority over people and resources. While Kolers is a pioneer in demanding ecological sustainability as a minimum requirement for any viable theory of territorial rights – building a bridge between environmental and political philosophy – Nine highlights a crucial distinction when looking at territorial rights from a global justice perspective, namely that between jurisdictional powers and ownership rights over resources. Daring and innovative at first glance, I claim that both theories present, however, deep ambiguities and retreat from their radical implications which, if taken seriously, would lead to a massive redrawing of current territorial borders.     

Territorial rights and open borders

Territorial rights consist of the right to jurisdiction, the right to resources and the right to exclude immigrants and are assumed to be essential to state sovereignty. Scholars who have discussed the justification of these rights have mostly focused on the right to jurisdiction. Few engage with the implications of such justification for the right to exclude immigrants. This paper argues that the justification for territorial rights cannot justify the right of states to exclude immigrants. Allowing immigrants to settle within the territory does not undermine any of the interests territorial rights are meant to protect. In addition, the interests of current inhabitants do not provide sufficient reasons to grant the state the right to exclude immigrants from the territory that everyone has equal right to in an original situation. State sovereignty is therefore seen as compatible with open borders.     

The Sovereignty Dodge and the Responsibility to Control: Should the US Do What Pakistan Won't Do?1

The killing of Osama bin Laden in Pakistan was justified by the Obama administration as an act of self-defense. Proponents of an expanded notion of self-defense argue that sovereignty implies responsibility not only for the protection of human rights, but also for the provision of public goods more generally, including effective territorial control. States which are unable to control their territory frequently become safe havens for militants who threaten the security of other states. Pakistan is a paradigmatic case of a ‘sovereignty dodge’ who, in the eyes of the United States, has forfeited its sovereign right to non-interference because of its failure to live up to its responsibility to control. In this article I explore the legality of US strikes against militant targets in Pakistan. I conclude that while international jurisprudence continues to adhere to a conservative reading of the rules on the use of force, states themselves have interpreted the law on self-defense more broadly, evincing a desire to keep the rules as indeterminate as possible.     

Unequal but fair? Cultural recognition and self-government rights

This review of Patten’s Equal Recognition suggests that minority rights can be grounded either in cultural accommodation rights or collective self-government rights. I defend four propositions: (1) individuals’ interests in membership in political communities cannot be reduced to their interests in being able to pursue their own conceptions of the good; (2) liberal states do not have to extend neutrality as equal treatment to self-government claims that intersect with their own jurisdiction; (3) claims for the establishment of public languages and territorial autonomy need to be justified on the basis of self-government rights rather than on grounds of equal treatment of cultural identities; (4) as a condition for their admission, immigrants can be expected to waive collective self-government rights rather than cultural protection rights.     

Bringing Law to the Table: Legal Claims,Focal Points,and the Settlement of Territorial Disputes Since 1945

In this article, we argue that international law can help state leaders reach a settlement in territorial disputes by suggesting a focal point for negotiations. International law is more likely to serve as a focal point when the legal principles relevant to the dispute are clear and well established and when one of the states in the dispute has a stronger legal claim to disputed territory. When these two conditions are present, we expect the state with a legal advantage to push for and receive favorable terms of settlement. In our analysis of all negotiated settlements in territorial disputes from 1945 to 2000, we find strong support for the importance of international law in influencing the terms of settlements. States with a strong legal advantage are more likely to secure favorable terms, whereas states lacking a strong legal claim are more likely to receive unfavorable terms.     

Property Rights and Forest Commons

Although property rights have been linked to a variety of positive social outcomes at the macro‐level, less research focuses on how property rights affect the benefits that actors receive at the micro‐level. This article examines property rights to a common‐pool resource (CPR) that are asymmetrically allocated among users, and presents a theoretical argument that property rights affect the allocation of resource benefits in two important ways. First, users with extensive property rights receive more benefits than users with limited property rights. Second, users with the power to influence how community rules are enforced—for example, landholders and ethnic majorities—more effectively define and defend their property and thus receive disproportionate CPR benefits compared to users with similar levels of property rights, but with less power. Using household‐level survey data in Bolivia, Kenya, Mexico, and Uganda, collected after a period of property rights decentralization, the empirical analysis finds support for these propositions. We conclude that power critically moderates the effects of property rights on the commons.     

Democratic Representation and the Property Franchise in Australian Local Government

Australia remains one of the last liberal democracies to retain a property franchise at the local government level. This particular feature is both the result of historical particularities and contemporary political arrangements. This article analyses the property franchise in the City of Melbourne, the capital of the Australian State of Victoria, based on democratic theory and an empirical study. It illustrates the tensions between the democratic principles of representation and political equality in defining structures for representation at the local government level. The authors suggest that a more nuanced interpretation of representation can be adopted at a local level based on territorial residency rather than legal citizenship. Despite this, based on analysis of both electoral and non‐electoral mechanisms, the property franchises are found to be anachronistic and indefensible from a democratic perspective and unrelated to the status of capital city. The article concludes that, at a local level, deliberative democracy holds the promise to better represent various interests, including property interests.     

People,Territory, and Legitimacy in Democratic States

Who are the people who should govern themselves in a democracy? This is the famous boundary problem to which this article offers a new approach. Most democrats, even nationalists and cosmopolitans, delimit the demos by relying on territorial jurisdictions. However, territory is not explicit in their arguments. This article urges democrats to recognize territory's normative importance rather than overlook the role it already plays in their theories. Acknowledging territory is a risky, yet promising, strategy. Risky, because it may lead to a vicious circle: one needs well‐defined territorial borders to delimit the people, yet one needs a well‐defined people to establish legitimate territorial borders. Promising, because it forces democrats to scrutinize implicit assumptions and find new resources for dealing with the vicious circle. The article describes four possible tacks by which theorists could navigate the waters of people, territory, and legitimacy in democracies: asserting, circumventing, solving, and dissolving the circle.     

Occupancy rights: life planners and the Navajos

ABSTRACT

This Comment focuses on the limitations of Stilz’s individualist conception of occupancy rights. Her account of occupancy is critical to her attempt to answer the question of where one holds territorial rights as well as related place-related rights like the right of return. Her account appeals to the geographical location of individual life plans. This Comment argues that this fails to distinguish between Indigenous People who are connected historically and in many other ways to a place and individual Life-Planners: it treats the two as equivalent, which I argue is counter-intuitive. I also argue that Stilz’s occupancy account fails to explain the scope of occupancy rights in a number of cases that she appeals to in her examples, such as the Navajos’ expulsion from the area in which they lived. What she needs, I argue, is a group based conception of occupancy rights, in addition to the idea of individual rights of residency.     

Democracy and noncitizen voting rights

The boundaries of democracy are typically defined by the boundaries of formal status citizenship. Such state-centered theories of democracy leave many migrants without a voice in political decision-making in the areas where they live and work, giving rise to a problem of democratic legitimacy. Drawing on two democratic principles of inclusion, the all affected interests and coercion principles, this article elaborates this problem and examines two responses offered by scholars of citizenship for what receiving states might do. The first approach involves expanding the circle of citizenship to include resident noncitizens. A second approach involves disaggregating the rights conventionally associated with citizenship from the legal status of citizenship and extending some of those rights, including voting rights, to resident noncitizens. This article argues that both approaches fall short of satisfying the democratic principles of inclusion, which call for enfranchising individuals not only beyond the boundaries of citizenship but also beyond territorial boundaries.     

Russell Kirk and Territorial Democracy

Russell Kirk is one of the most important American conservativethinkers. This article traces the development of Kirk's understandingof federalism, which was neither nationalistic nor based inthe usual arguments about states' rights. Specifically, Kirkadapted what the American thinker Orestes Brownson called "territorialdemocracy" to articulate a version of federalism that is basedon premises that differ in part from those of the Founders andother conservatives. Further, Kirk believed that territorialdemocracy could reconcile the tension between treating the statesas mere "provinces" of the central government and seeing themas autonomous political units independent of Washington. Finally,territorial democracy allowed Kirk to set out a theory of rightsthat was based in the particular historical circumstances ofthe United States while rejecting a universal conception ofindividual rights.     

Social conflict over property rights: the end,a new beginning,or a continuing debate?

The ownership and control of private land is a core social value in the United States. Public planning can be seen as conflicting with this value. The long-standing tension between private property rights and public planning was heightened in the 1990s with the emergence of the so-called private property rights movement. This movement seeks to limit governmental authority over privately owned land through a multi-level strategy of legal, policy, political, and public relations actions. This paper explores the historical basis for this conflict, the legal framework within which it functions, and contemporary policy battles.

The paper concludes that there may be no final outcome to this debate. Property rights activists are impassioned and believe their view of history and law is correct. I argue that it may be best to see debate about land use and property rights as one of the central vehicles for a continual reframing of core values in the American experience.     

Are There Any Global Egalitarian Rights?

This article considers whether or not there are any global egalitarian rights through a critical examination of the political philosophy of Ronald Dworkin. Although Dworkin maintains that equal concern is the special and indispensable virtue of sovereigns and the hallmark of a fraternal political community, it is far from obvious whether the demands of equality stop at state borders. While some scholars in the field—most notably Thomas Pogge—posit the existence of negative rights in relation to social and economic inequalities at the global level, here I try to defend the existence of positive global egalitarian rights by appealing to Dworkin’s own two principles of ethical individualism. I also set out the framework for a version of what I call global luck egalitarianism based on Dworkin’s equality of resources and try to respond to David Miller’s charge that comparative principles of justice do not apply at the global level.

The Strategy of Territorial Conflict

Many empirical studies have found that disputes over territory are central to the outbreak and intensity of the majority of interstate military conflict. However, the existing literature lacks an explicit theoretical link between the role territory plays in disputes and the outbreak of violence as well as an exploration of how the control of territory is related to conventional military capabilities. This article demonstrates that the targets of territorial claims can consolidate their control over disputed territory to improve their ability to fight effectively on it. The empirical analysis suggests that when territory is strategically located, target states are more likely to consolidate their position, while challenger states are less likely to escalate militarily. Furthermore, when the presence of territorial characteristics such as strategic location makes consolidation an effective strategy, target states are increasingly likely to consolidate as they face stronger opponents.     

Occupancy rights: dynamic as well as located

ABSTRACT

Anna Stilz’s Territorial Sovereignty (2019) aims to be a revisionist account of territorial rights that puts the value of individual autonomy first, without giving up the value of collective self-determination. In what follows I examine Stilz’s definition of occupancy rights and her emphasis on the moral relevance of what she calls ‘located’ life plans. I suggest that, if it aims at being truly revisionist, her theory should work with a broader definition of occupancy. So long as it doesn’t, these rights will be mainly the preserve of groups of settlers and peoples with predictable patterns of movement. Moreover, insofar as occupancy rights ground collective rights to self-determination, they actually have the potential to trump individual rights to what I call ‘dynamic’ or non-located occupancy. This is worrying, I claim, for at least two reasons. First, rights to dynamic occupancy are arguably as central for respecting individual autonomy as rights to located occupancy. And second, rights to dynamic ocupancy should be seen as key in helping to form the kind of political allegiances required to overcome the most pressing collective action problems that humanity faces.     

Deliberative multiculturalism in New Labour's Britain

The aim of this paper is to examine the principles that New Labour has employed in its citizenship and multicultural policies in Britain, and to clarify theoretical locations as well as philosophical rationales of those principles. By deliberative multiculturalism, I mean a set of policies and discourses of New Labour about citizenship and multicultural issues, which emphasizes rational dialogue and mutual respect with firmly guaranteed political rights especially for minorities. New Labour tries to go beyond liberal and republican citizenship practice through enhancing deliberation, the origin of which goes back to the British tradition of parliamentary sovereignty. It also attempts to achieve a one-nation out of cultural cleavages, shifting its focus from redistribution with social rights to multicultural deliberation with political rights. I organize my discussion with a focus on the difference between two theoretical concepts: the relationship between cultural rights and individual equality, and the relationship between national boundaries and global belonging. In the concluding section, I explain three positive developments of New Labour's approach and also four limitations it has faced.     

Do government sponsored marriage promotion policies place undue pressure on individual rights?

The dominance of social science research in the debate over the Bush Administration’s Healthy Marriage Initiative may explain why questions regarding the proper role of government in regulating adult intimacy have received little attention. Social science research focuses on outcomes such as well-being and health. In contrast, rights-based legal theory considers whether state action undermines the rights of individuals. In this article, I intend to shift the debate over marriage promotion policy from questions of child well-being to questions of individual rights. I will ask the following questions: Do individuals have a liberty interest in making their own choices about intimate relationships, such as marriage? Do federally-financed (and frequently state-run) marriage programs compromise this liberty interest? Are there any constitutional grounds for objecting to marriage promotion policy?     

Weaponization of the Land and Property Rights system in the Syrian civil war: facilitating restitution?

The Syrian civil war has seen the weaponization of its land and property rights system by the primary combatant groups in the country. The government is the most robust in its use of the tenure system to locate, target, destroy, confiscate, cleanse and gain revenue by way of the institutions and attributes comprising the system. Based on fieldwork with Syrian refugees in Lebanon, Jordan and Turkey, this article describes seven ways the Syrian government is currently using the land and property rights system in its military-on-civilian engagements. While the objective of such use is presumably to permanently prevail over opposition civilian constituencies, the article describes how this actually creates evidence usable for effective restitution of lands and properties subsequent to the war.