Do Insecure Property Rights Ground Rights of Jurisdiction? Miller on Territorial Justice

Abstract

A prominent approach in the debate on territorial rights claims that a group may have jurisdictional rights over a particular land if that land has become a repository of value for the group. This justification relies on a premise which has remained largely unsubstantiated, namely that having jurisdictional rights should be our preferred means for ensuring the group’s retaining of the land’s embedded value. This article discusses a recent attempt to fill this gap. David Miller acknowledges that the value could be retained by the group if it has private property rights. However, he argues that because such rights can be changed at will by the holder of jurisdictional rights the group’s retaining of value is unacceptably insecure. I argue that this attempt fails. Miller’s argument is briefly stated so I start with some reconstructive work. Most importantly, I suggest that the argument relies on a descriptive claim about empirical probabilities, namely that the group’s having jurisdictional rights (in international law) provides the largest feasible reduction of insecurity. I then provide some tentative suggestions about expected state behavior which challenge the validity of that descriptive claim; I argue that a reform of international law which confers internationally enforced property rights on the relevant groups—rather than jurisdiction—may provide a similar (or even relatively larger) reduction of insecurity. My tentative conclusion is that Miller’s appeal to insecurity fails to provide the “embedded value” approach (favored by him and others) with the needed bridge from property rights to rights of jurisdiction.