Territorial Rights: Concept and Justification

Abstract

This article begins by analysing the idea of territorial rights. It argues that the rights over territory standardly claimed by states can be separated into three main elements: the right of jurisdiction, the right to the territory's resources and the right to control borders. A full justification of territorial rights must therefore address each of these three elements. It proceeds to examine theories that treat states as the primary holders of territorial rights. Utilitarian theories (such as Sidgwick's) maintain that states acquire such rights simply by maintaining social order over the relevant territory. 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 representative of 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 rights by increasing the value of territory 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 territorial 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 rights distinguished at the outset.