## 1. Conceptual Issues


### 1.1 What is territory?



One common preliminary distinction is between territory and land. Land
is that part of the earth's surface that is not covered by
water. Territory is a political and geographic concept. It refers to
the spatial area of jurisdictional authority. States have territory:
it is the geographical extent of their jurisdictional authority. This
usually covers the land within the borders of the state, but it can
and does in the modern world extend off shore into the sea, below the
earth's surface (to control resources) and above the
earth's surface, as most states also claim jurisdiction over
their air space. Territory, then, is not co-extensive with land,
although all (or almost all) land on this planet is divided up into
different jurisdictional units, or territories. The critical geography
literature on 'territory' tends to primarily conceive of
'territory' as a geographical area that is controlled, or
over which power is exercised (Elden 2013); whereas the political
philosophy literature tends to be more interested in territory as the
domain of legitimate jurisdictional control and associated rights
(Miller 2012; Nine 2012; Banai 2014; Moore 2015; Angeli 2015; Stilz
2019). Territory is also distinct from property as will be explained
below.


### 1.2 Territorial rights



The political philosophy literature on territory makes use of the idea
of territorial rights. This is often done in a way that is analogous
to how we think about property rights--viz., as a bundle of
different liberties, powers, immunities, and claims, which, when held
together with respect to a material thing, constitutes what we mean by
property rights. In the case of property, the fullest form of
normative control over that thing was what Honore (1961) called
'full liberal ownership', but he also recognized that
property rights can be parcelled out and held by different agents and
that each right within the bundle may have its own, separate
justification.



In the case of territorial rights, the central and fundamental right
is the right of jurisdiction, which is the right to create and enforce
laws within the domain in question. However, there are other related
rights (powers, immunities) related to jurisdiction, which we also
lump together as part of 'territorial right'. It includes
the power to make changes to the territory's status, for example
by incorporating it into some larger entity such as the EU, and the
power to create sub-jurisdictional units of a federal system. It
includes the right to do business in the world as a legal
entity--to make war and peace, to conclude treaties, and enter
into alliances. And it includes rights against other similar entities
not to be interfered with in the exercise of this power.



Territorial rights are also normally understood to include other
rights beyond jurisdiction and the associated claims, powers and
immunities: rights to control resources within the geographical area,
rights to control borders and regulate the flow of people and goods
across them and rights to defend the territory against outside
aggression (Simmons 2001; Miller 2012). Although these are often
assumed to be inherent in the very idea of a sovereign state, we can
envisage entities that have some rights of jurisdiction but lack other
elements in the territorial bundle. Consider the members of the
European Union which have significant jurisdictional powers at the
member state level, but no border checks between member states in the
Schengen area. Most federations are structured in this way. In Canada,
provinces exercise wide powers of jurisdiction (over education,
health, roads, natural resources) but there are no border controls
between provinces. Thus, each element in the bundle that make up what
we might loosely call 'territorial rights' needs to be
examined, related to other elements, and justified, if we are to have
a full normative theory of territorial rights or territorial
justice.



The structural similarities between property rights and territorial
rights should not blind us to their differences. Territory is not the
same as property, because it has, as its primary element, a right of
jurisdiction. Some of the rights that are included in rights over
territory look as though they're concerned with the claims to
regulate and control a particular territory, which we think of as
primarily rights of jurisdiction; and other rights are much more
property-like, because they involve exclusionary claims over a region,
and claims about how to use resources and land located within the
boundaries of the state. However, these rights are mainly conceived of
as secondary to that of jurisdiction, and of meta-jurisdictional
powers such as the power to secede from a state or merge with another
one.



One of the fundamental divisions in theories of territorial justice
concerns the question of the relationship between territory and
property, with theorists of a more Lockean or libertarian bent arguing
that there are natural rights to property, which can give rise to
rights over territory. On this story, property-holders consent to
create a state and bring their property with them. Other theorists,
including justice theorists, self-determination theorists and liberal
nationalists, view rights of jurisdiction as both prior and
fundamental, since it is through the exercise of jurisdiction that the
rules according to which people can acquire and transfer property are
determined.


### 1.3 What is a theory of territorial justice?



A theory of territorial justice has to explain and justify rights over
territory. It has to explain what rights there are, the limits of
these rights, and who holds these rights. In doing so, it has to
examine and justify the relationship between three different elements:
the people (or individual persons); land; and the regime, government
or state. There are different ways in which these elements are related
and different justificatory values may undergird these different
configurations, but all extant theories offer an argument that relates
these different elements and justifies their particular
configurations. 



The main differences among these theories tend to track the following
dimensions: (1) the putative territorial right-holder; (2) the value
that explains and justifies rights over territory and which limits the
scope of each of these rights; and (3) the argument for connecting
both the justifying value and the rights to the particular
geographical area. Let's take these different dimensions in
order. The first key difference among rival theories concerns their
conception of the appropriate (or justified) territorial right-holder:
is it the nation? the people? or the state? They also offer different
accounts of the underlying value that justifies these rights: the main
contenders are peace and stability; justice; and self-determination.
The underlying value also affects the scope of the rights being
claimed, and indeed which set of rights in the bundle of rights can be
so justified. A theory of territory has to explain how we can
demarcate the geographical domain that the rights range over. It is
not sufficient to explain in general that states need to be
territorial in order to realize whatever value is supposed to justify
them. The theory should explain which particular bits of territory are
connected to which states. This is called in the literature 'the
particularity question'. To address this question, the theory
needs an argument that relates people and land to the state in ways
that justify rights over *particular* bits of territory, and
this is a difficult problem for one of the most prominent theories of
territory--justice theories.


## 2. Theories of Territory in Historical Perspective



There are a number of historical theories which have presented
arguments about territory that have been relatively neglected in the
scholarship on these theories, which has tended to focus on other
aspects of their argument. Three key traditions are the natural law
tradition, in particular Grotius and Pufendorf; the social contract
tradition, and particularly Locke, who offered a theory of political
obligation and a justification for limited constitutional government;
and the justice tradition, associated with Kant, which identifies the
state with the achievement of justice. None of these offered a
complete theory of territory, but they did, in the course of
theorizing the state and the international order, connect territory in
crucial ways to their overall argument, such that it is extremely
useful to focus on how they conceptualized territory, how they argued
for it, and how it was related to other key elements in their
political theory. Contemporary theories, which will be discussed in
sect. 3, mainly build on these earlier theories.


### 2.1 Natural law theories: Hugo Grotius (1583-1645) and Samuel Pufendorf (1632-1694)



Both Grotius and Pufendorf operated in a natural law tradition. They
both assumed that natural laws, which can be rationally apprehended,
apply to all human beings, are invariable across time and space, and
constitute the fundamental bonds of human society. Both theorists made
room for conventional law but argued that these were constrained by
the precepts of what both referred to as 'right
reason'.



Writing in a period of initial imperial expansion and discovery,
Grotius in *Mare Liberum* (1609) defended the idea of common
ownership of resources. By the term 'common ownership',
Grotius meant that God granted all humans a right (a liberty right) to
use objects or resources in the world to satisfy basic needs. In
relation to the ocean, Grotius argued that no state or common power
could claim exclusive dominion over it because the sea is not
confinable within fixed boundaries and also is not amenable to
transformation through human labor and so not an appropriate object of
property rights. For these reasons, it should remain a relatively
undisturbed commons; human beings would be free to travel on it and
engage in mutual exchange, and to fish (the resources of the sea
being, in his view, almost limitless). Although this view was
challenged in his own day by John Selden in *Mare Clausum*
(1635), who pointed out that geographical coordinates could enclose
the sea, and in our own day by the recognition that the resources of
the ocean and the seabed are not limitless, the idea of international
rights over a global commons was very influential in the creation of
modern international law, and was also important to the development of
sea empires shortly thereafter (see Armitage 2012: 54-56). This
idea is applied to many areas today as part of the idea of
'common heritage of mankind'.



In relation to land Grotius argued that all individuals have a natural
right to use objects that are held in common, but this right lacks
some of the incidents that we associate with ownership proper. There
is no right to exclude or to have a thing when it was no longer in
one's possession. He then elaborates a genealogical argument,
according to which, in the early period of human existence, we lived
in a simpler state where "the great extent of land was
sufficient for the use of all occupants, as yet but few in number,
without their incommoding each other" (Grotius *RWP*: II,
2, ii). However, as people became more ambitious and more acquisitive
in meeting their needs, they began to interact more extensively with
resources, and so came to possess moveable things and to cultivate and
occupy immoveable resources, like land. As population increased in
number and spread throughout the world, it didn't make sense to
have a common right in objects many miles distant from where people
live (Grotius *RWP*: II, 2, ii). Grotius appealed to the idea
of consent, capaciously understood to include the gradual
establishment of rules of acquisition, use and transfer. He also
argued that possession would be converted to jurisdiction through a
public act which allows all to recognize who possesses what, which is
important to ensure peaceful possession and reconcile the division of
the world with human sociability. 



Because Grotius conceives of natural rights (including our rights as
common owners in things) as potentially transferable, he is able to
explain and defend different kinds of government
systems--democracies, oligarchies, even absolute monarchies.
Since, for Grotius, the natural rights that a person has over his or
her own person are alienable, he is able to argue that the source of
the state's authority stems from the transferability of this
right to a sovereign authority through consent, including conventions
developed over a long period of time, which represents an implicit
exchange for a peaceful and stable society. He also argues that civil
authority can also be acquired through conquest (Grotius *RWP*:
II.3.viii), although this aspect of his theory is not emphasized by
contemporary scholars.



Most criticisms of Grotius' theory focus on his defense of
absolute sovereignty, but the focus here is on his account of
group-based possession implicit in his justification for territory.
The central difficulty is that Grotius's account of possession
does not have a scope limitation. It's not clear that he has the
conceptual resources to establish limits to the area that a group can
claim (or possess). He did, however, recognize a right of necessity
and other moral rights (to passage, settlement, commerce, use of
water, rights of refuge), which means that some sharing would be
required by an appropriator. For their part, incomers would be
required to submit to the sovereign (Grotius *DJB* II,2,
xvii). This suggests that
he envisions state jurisdiction as encompassing large areas that are
not possessed or occupied in the normal sense, and some might argue
that it is counter-intuitive that a single group should be able to
claim sovereignty over vast tracts of land, as the European empires
did in the 'Age of Discovery', and require that all
peoples and migrants simply submit to *their* rules. 



The scope limitation for sovereignty authority is described more
clearly in Pufendorf's natural law theory. Like Grotius, whose
political philosophy he was attempting to defend, Pufendorf
(*DMC*) believed in natural law and also laws derived in more
conventional ways--such as civil laws, or laws between nations.
He builds on Grotius' account in two ways. First, Pufendorf
rightly pointed out that the ocean could be subject to the exercise of
jurisdiction. Second, and more significantly, his account provides the
conceptual resources to recognize not only collective title, but it
incorporates the idea of fair rules and fair terms in his account of
the establishment of property regimes. For Pufendorf, the state of
nature was a state of social living, and our claims to resources of
the commons were rights held in a negative community in the sense that
the natural world was equally open to everyone, but that, in order to
appropriate land or property, one needed the consent of other
co-owners. Pufendorf did not specify what kind of consent ought to
count. However, he suggests that it would take the form of collective
property or property held by communities, and that, from this,
individual claims could be derived. Cara Nine (2019) has argued that
his account has the conceptual resources to explain the limits of the
state's territorial domain in a non-arbitrary way, because he
limits both individual and collective title by invoking moral
principles such as non-domination and need.


### 2.2 Consent and property theories: John Locke (1632-1704).



John Locke's central concern was to justify a limited
(rights-respecting) constitutional government, and, like Grotius and
Pufendorf, he appeals to consent. Locke's argument proceeds by
first defending the idea of natural rights to property, which he
grounded in the fundamental importance of private holdings to the
exercise of liberty, i.e., to the ability of persons to engage in
individual or collective projects. He argued that individuals can
acquire property in land and other external material objects by
'mixing their labor' with it and thereby improving it
(Locke *ST*: V,27). He then argues that the difficulties that
would be attendant on such an arrangement could only be solved by
creating a jurisdictional authority to govern such people and protect
their rights. Individuals in the state of nature, or loosely
associated persons (e.g., families), many of whom have property in
land, would, Locke argued, combine together to form a state to protect
their rights. They would consent to majority rule, to obedience to and
support for law (within the limits of natural law) and, importantly,
consent to incorporate one's rightful landholdings into the
territory over which the government has jurisdiction. Locke connects
the creation of authority over persons and authority over territory in
this way:



> 
> 
> By the same Act therefore, whereby any one unite his Person, which was
> before free, to any Commonwealth; by the same he unites his
> Possessions, which were before free, to it also; and they become, both
> of them, Person and Possession, subject to the Government and Dominion
> of the Commonwealth, as long as it hath a being. (Locke *ST*:
> VIII, 120)
> 
> 
> 



There are two justifications for the state: one is functional, since
the creation of political authority is necessary to solve the
deficiencies of the state of nature at least as regards the protection
of people's natural rights; and the other is consent, as people
in the state of nature are imagined to agree to a political order, an
act which reconciles man's natural liberty with subjection to
common authority. The natural right to property, on this argument, is
conceived of as prior to the state, and an essential building block
for justifying the domain of state jurisdiction. By linking people and
land together prior to the creation of political authority,
Locke's theory can explain the domain of jurisdictional
authority. The boundaries of the state are coextensive with the
boundaries of property that individual property holders incorporated
when political society was created.



Although this theory is able to explain how there might be legitimate
jurisdictional authority over various chunks of land, it also seems
likely that these would be perforated by land held by dissenters, or
at the least non-continuous boundaries. This means that the theory is
of limited usefulness in justifying the contiguous jurisdictional
authority of territorial states, where the writ of the law applies to
all those contained within the external boundaries but there is no
un-owned or un-consented interior land. In other words, this argument
does not justify territorial right *as we know it*, where
territorial rights and especially jurisdictional authority are
consistently or evenly applied across the territory. This is not a
flaw in itself. We shouldn't think of normative theory as intent
on justifying contemporary practices. However, it is a problem in so
far as that does not seem compatible with the performance of functions
relating to the exercise of jurisdictional authority, and
functionality was also an important element in Locke's argument
for why individuals would seek to create a political order that has
authority over them in the first place and can adequately protect
their natural rights.


### 2.3 Justice theories: Immanuel Kant (1724-1804)



In some respects, Kantian arguments for territorial rights are the
exact reverse of Locke's. Kant offers a general justification of
the state as necessary to the pursuit of justice, but then, having
shown that the state is necessary to justice, this argument has
difficulty in explaining which bits of territory each state ought to
have.



Kant first defends the right to occupy and appropriate objects as
implicit in, and justified by, the exercise of individual freedom. He
then points out that removing things from common use prevents other
people from enjoying the object in question, and this unilateral
exercise of one's freedom is therefore incompatible with the
exercise of other people's freedom. The only way out of this
dilemma is through the multilateral recognition of 'rights of
property' (by which he means agreement on the obligation to
respect the acquisition, transfer and use of objects in the external
world) and institutions of justice to set and enforce these
multilateral rights. This provides an argument for why people who live
in close proximity to one another, and therefore cannot avoid
interacting, are morally obliged to enter the civil condition and
acknowledge a political authority whose coercive law can guarantee
their property rights. On Kant's account, everyone in the state
of nature has an obligation to leave a 'a state *devoid of
justice*' and replace it with 'a rightful
condition'.



This theory successfully justifies the exercise of jurisdictional
authority--indeed, the argument that we are subject to authority
because it is required by justice is probably the most compelling
justification of state power on offer. However, there are difficulties
for this theory in explaining and justifying why that authority is
held over particular areas of the earth. It is a short step from this
type of argument to appeal to a principle of proximity to mark out a
domain in which people are unavoidably interacting with one another,
and then explain why people who are proximate must be under the same
authority, because likely to fall into disputes (Waldron 2009).
However, since there are many possible domains of possible
interaction, the argument does not tell us which territorial unit we
should join in cases where we stand midway between one group of
proximate people who are in the process of creating state *A*,
and a second group who are creating state *B*; and some members
of our group seek to create state *C* (Miller 2011). It's
clear that we should join a political community, so that we are not in
a lawless condition, and indeed it appears that all the contenders
might be justified in compelling us to join their political community,
but it is indeterminate about which political community ought to
exercise rightful authority over us. Kant's argument avoids
discussing this dilemma only by appealing to considerations which fall
outside of the Kantian theory itself: he points out that people tend,
as an empirical fact, to be naturally grouped along linguistic or
religious lines, and that membership in these cultural groups helps to
define particular jurisdictional domains (Kant *PP*: I, first
supp., para. 2). This empirical assumption helps Kant to escape what
might appear to be the cosmopolitan logic of his account: without
appeal to that purely contingent fact of people's preference to
associate politically with others who are religiously or culturally
similar, it seems that the logic of his account is universal. Although
Kant himself offered various reasons for opposing a world state (Kant
*MM*: II; 53-61) it is not clear that these reasons are
consistent with the logic of his theory. 



One could, of course, accept a universalist, Kantian account of state
authority, but supplement that account with subsidiary principles,
which help to define the boundaries of particular authorities. But if
those subsidiary principles are more than principles of convenience or
affirmations of the status quo, both of which are problematic, then it
means that Kant's theory can't be a stand-alone successful
account, but has to be hybridized with another account. This is
because Kant's theory provides a successful justification for
state authority but needs another account to justify each
state's particular territory.


## 3. Contemporary Theories of Territory



Most contemporary theorists of territory build on the historical
arguments of Grotius and Pufendorf, Locke and Kant, or are a hybrid of
these historical accounts. Some--like Risse in relation to
Grotius, Stilz in relation to Grotius and Kant, Nine in relation to
Pufendorf and Locke, Simmons in relation to Locke, and Waldron and Ypi
in relation to Kant--are explicitly based on earlier theorists,
and offer ways to improve some of the difficulties that beset the
original account. Others--like Miller in relation to nationalist
theory--offer a philosophical version of a popular nationalist
belief in relation to homelands, which has historical roots in the
nineteenth century, but lacked a clear philosophical defense.
Contemporary accounts that ground territorial rights on
self-determination and peoplehood are not based on a single
identifiable theorist, though this version attempts to define
territorial right--holder and the justificatory value in a way
that avoids some of the problems of earlier theorists.


### 3.1 Natural law theories updated



As noted above, one of the key problems with Grotius's account
of territory is that it failed to explain the scope of the
state. Jurisdiction was based on possession but possession was defined
descriptively: a group could come to possess land through force or
through public claims, but it was not clear how the scope or extent of
the possession was defined normatively or how it could be limited. One
of the key contemporary defenders of Grotius--Mathias
Risse--attempts to update Grotius's account by developing a
principle or set of principles designed to address this problem.



In a series of articles with Michael Blake and a book *Global
Justice and Common Ownership of the Earth*, Risse argues that the
key Grotian insight is that our institutional practices should reflect
the "core idea" of common ownership, which 



> 
> 
> is that all co-owners ought to have an equal opportunity to satisfy
> basic needs to the extent that this turns on collectively owned
> resources. (Risse 2012; 2014: 112) 
> 
> 
> 



He then addresses the key deficiency in Grotius' theory of
territory: he proposes a scope limitation on possession, which limits
the amount possessed by requiring that it be justified from a global
perspective. Risse's distinctive proposal is a proportionality
principle to explain how much each group is entitled to. Grotius
himself did not endorse proportionality, but he did believe in common
ownership, combined with a right of necessity, which Risse says
implies the following disjunctive right: each individual has the right




> 
> 
> either to use (in the narrow sense) resources and spaces to satisfy
> one's basic needs or else to live in a society that does not
> deny one the opportunity to satisfy one's basic needs in ways in
> which it otherwise could have been done through original resources and
> spaces. (Risse 2014: 112)
> 
> 
> 



How does the proportionality principle work? The idea is that
potential migrants can be excluded from states or areas of the world
where people are over-using (or using at the average level) the
resources, but they cannot be excluded from the areas where the
resources are 'under-used'. This brings in a rather
technical discussion of what constitutes 'over-use' and
'under-use', but the most consistent formulation is that
one is 'underusing' a territory when the ratio of a
state's population to the value of its natural resources is low
compared to the other states, and 'over-using' it when the
ration is high (see Blake & Risse 2008; Risse 2012:
158-166).



Critics of this view allege that there is a very basic difficulty with
the proportionality principle, which is that it is insensitive to the
myriad ways in which people interact with place, which ought to be
relevant to a theory of territorial justice. It relies on a
homogeneous and undifferentiated view of resources as existing in the
world, and thereby raising property and distributive justice
questions. This treats 'resources' as equivalent to
natural things which can be brought under an ownership relation. Both
Kolers (2009) and Moore (2012, 2015) have argued that the concept of
'resource' does not refer to a natural kind, but contains
an important relational element, such that something gets transformed
from being part of the natural world to a resource by being viewed
instrumentally and that this relational character is part of how we
individuate resources and distinguish resources from things in the
physical world that are not resources. This means that what counts as
a resource is historically, culturally and individually variable.
Something can be a resource for one person or one group, because
instrumental to the satisfaction of his or her purposes or needs, but
not a resource for someone else, because that person does not view the
object instrumentally. For example, the Lakota Sioux believe that the
Black Hills are sacred, which means that they don't view them
instrumentally. When in 1980, they won a U.S. Supreme Court award,
compensating them for the unlawful taking of Sioux lands, they
rejected the award: they didn't want compensation; they wanted
the mining stopped. This highlights the problem with the
proportionality principle and common ownership: it is biased towards
intensive uses relative to population. It wrongly assumes that we view
all things in the natural world from the same instrumental
perspective, such that the ideas of trade-offs, compensation and
use-value are obviously applicable and neutral terms to use. What is
needed, critics allege, is a set of principles to adjudicate
territorial claims that better respect cultural variability with
respect to land.



Cara Nine has also updated the natural law tradition, focusing on
Samuel Pufendorf's theory. In a series of well-known articles
and her 2012 book, she relied on a particular interpretation of
Lockean arguments, but more recently she has argued that
Pufendorf's natural law/ common ownership argument is
instructive for our thinking about what we now think of as the global
commons. She examines the ocean as a common pool resource and the test
case of rival claims in Arctic waters (Nine 2019). She argues that
Pufendorf's appeal to conventional agreements and a system of
collective dominium may be the best way for assessing whether there is
real benefit from exclusive use of an object (thereby potentially
giving rise to property claims) and the role of necessity in
adjudicating between rival claims. Nine argues that Pufendorf's
more social, conventional and collective account of our relations to
the world contains a discussion of inherent limits of jurisdictional
control. The claims to common pool resources, are, she argues, limited
in three ways: the need to avoid domination among claimants, thus
setting the stage for a deliberation amongst claimants from a position
of equal status; avoiding greed,; and avoiding taking what is already
used by others, which implies a recognition of the needs, commitments
and expectations of others (see also Mancilla 2012). Although this is
not presented as a full territorial theory, it does indicate the rich
nuances of some exponents of that tradition and the way that the
concepts they deployed can be serviceable to contemporary problems. It
also points to a conventional account of the limits of such rights,
where the conventions have to be sensitive to the equal standing of
parties, and their needs and commitments. Nine then usefully discusses
how this could be applied to places that we think of as part of the
global commons as well as its implications for a hybrid (conventional
combined with moral principles) theory of boundaries.


### 3.2 Consent and Natural Property Theories



There are many internal disputes amongst contemporary Lockean-inspired
theorists concerning the appropriate understanding of Locke's
argument and the extent to which Locke is vulnerable to some of the
standard objections. An objection was raised earlier that might be
called the Swiss cheese objection: it seems unlikely that a consent
argument can justify the contiguous territorial control that we might
expect of a state. Some Lockean theorists, such as Hillel Steiner
(1996: 144), are happy enough to accept this as an implication of a
Lockean theory, but deny that it is a problem, or anyway not a fatal
problem. A. John Simmons, however, has argued that the functional
strand in Locke's theory does important work, so that, 



> 
> 
> when people consent to make or join a political society, their consent
> should normally be understood as consent to whatever arrangements are
> necessary for a peaceful, stable society. (Simmons 2001: 313) 
> 
> 
> 



On his view, Locke's argument has the conceptual resources to
limit the ability of property-owners to exit or sell their land to
people who do not accept the sovereign's jurisdictional
authority, and to ensure that all subsequent holders of the land will
be bound by the obligations of state membership. In this way, Simmons
contends, the Lockean argument can address two of the most important
sources of non-contiguity. 



There is however a rival interpretation of Locke's theory,
advanced by Bas van der Vosssen (2015), according to which
states' external boundaries are conceived of as the product of
consent amongst sovereign authorities themselves, thus developing a
two-stage argument for territorial rights. It is, however, not clear
whether this interpretation can be easily reconciled with the
distinctive feature of Locke's account, which is the idea of
property-holders consenting to create territory.



Cara Nine's early articles and her 2012 book *Global Justice
and Territory* also make use of Locke's theory to explain
how a state can gain entitlement to a territory. She argues that a
state improves its territory, adding value to the area via the
enforcement of jurisdictional rules about property, contract, and so
on. This use of Locke to justify territory by a corporate agent is
coherent but it is purely retrospective: it tells us that a state can
be entitled to an area on the basis of what it has done, but since the
state excludes other potential claimants it cannot really show that it
has done more than other contending territorial agents would have
done, nor does it offer the resources to decide between two contending
groups, each aspiring to create a state in the region (and thereby
engage in the value-enhancing jurisdictional activity). Nine's
recent work on Pufendorf and her emphasis on conventional agreements
under certain conditions is focused on addressing that problem.



A. John Simmons, in his book *Boundaries of Authority* (2016),
offers a more self-consciously Lockean theory of territory. Simmons
complains that all existing territorial theories--nationalist,
self-determination theories, justice theories--tend to accept a
version of Waldron's (1992) supersession thesis, which is the
view that historic rights (to land) weaken over time. Simmons rejects
this view, arguing, like Locke, that all political authority, to be
rightful, has to be grounded in consent. He holds that indigenous
people were doubly wronged, because not only did they not consent to
the state, but their collectively owned property was also wrongfully
annexed. This line of argument reveals a significant difference
between Lockeans (who have an historical argument about justice) and
other theorists. Lockeans tend to think that rights in
things--including rights in land--are heritable and do not
disappear as the specific right-holders and wrongdoers die off, or
when the property that they had is wrongfully taken from them.



However, it could be argued that Simmons' position is
counter-intuitive, because we often do feel that the passage of time
matters to the existence of rights. After all, if the interests that
grounded the right no longer apply (due to changes wrought by the
passage of time), then it seems that this will affect the right (which
was designed to protect said interest). It's hard to avoid this
conclusion if we think of rights as protecting human interests, some
of which may be relational or contingent. A deeper problem, to which
this point gives rise, is that Simmons presents his Lockeanism as
"an ideal theory". However, almost everything that we are
interested in--wrongful political incorporation, theft of land
and then subsequent transfer--are instances of non-ideal theory,
and it is not fully clear how Simmons' Lockean insights are
meant to apply in the real world. It does suggest that we need a
process of apology or rectification, but Simmons does not elaborate on
the form that rectification in the present should take, and how it
might be reconciled with the claims, if any, of descendants of
wrongful settlers, or of settler states. 


### 3.3 Justice accounts



There are many theorists of justice and political obligation who adopt
a Kantian view of the justification of the state, but fewer who try to
apply this theory to justify territory. A fairly typical view is
expressed by Allen Buchanan who argues that "the chief moral
purpose of endowing an entity with political power is to achieve
justice..." (Buchanan 2003a: 247; Waldron 2009). He then
clarifies that justice involves acceptance of human rights, due
process and the rule of law. This basically Kantian view is very
helpful for explaining why we need states, but, like Kant's own
account, has difficulty explaining where the state ought to wield that
power (the particularity problem). This in turn gives rise to three
distinct, but inter-related, problems, and manoeuvres to deal with
that problem.



Because Kantian theory has no internal mechanism to address the
particularity problem, it accords rights over territory
retrospectively, after some group or agent has succeeded in gaining
political power. This seems unacceptable for a theory that, in other
ways, is guided by the importance of justice and the rule of law, and
deeply sub-optimal for a theory of territory, which ought to be able
to adduce normative principles to adjudicate cases where more than one
political community has claims to the same territory.



Another problem is that, as a theory of territory, it seems very
demanding. If states do not have rights over territory unless they are
just states, then, one implication of the argument is that even on a
relatively minimalist view of justice (involving guarantees of human
rights and due process), no state legitimately exercised territorial
rights over its political community at any time prior to the twentieth
century, and most states, even now, do not have legitimate territorial
rights over their area (Banai 2014). But this seems counter-intuitive.
One of the reasons why imperialism was thought to be wrong is that it
represents a violation of the colonized state's territorial
rights. But if, say, Morocco had no territorial rights over its
territory in the nineteenth Century, when it was colonized by France
(on the reasonable assumption that Morocco was not, at the time, human
rights-respecting), then there was no specific wrong about
imperialism, or indeed any specific violation in French governance
over that territory. Of course, we could just say that French rule
turned out to be wrongful because it turned out to be unjust, but that
argument would also apply to the rule that preceded imperialism and
the rule after decolonization, which some have argued is
counter-intuitive (Moore 2014, 2015, 2019a).



A third problem, which is closely related to the two difficulties
above, is that most theorists who adopt this line of argument tend to
distinguish full justice from legitimacy, and so confer territorial
rights on less-than-ideally just states. This means that while the
theory seems to set the bar quite high in terms of the justification
of the state, it is low when it is applied to actual states,
especially when we examine the historical trajectory that enabled the
state to gain rights over that geographical space. Many states have
originated in deeply unjust practices: they gained territory through
conquest, trickery and other forms of brutality. This sits uneasily
with the overall emphasis on justice in the theory. It also introduces
a problematic, because very status quo-oriented *realpolitik*
element into the theory, and so tends to justify existing territorial
orders, including ones that gained their territory through conquest
and deceit. This may be a problem in Lea Ypi's justice based
account (Ypi 2014), which contends that states are only
"provisionally" as opposed to "conclusively"
justified until we have an international agreement on existing
territory. But since having a universal agreement on territory is very
unlikely in the medium to long-term future, this amounts to accepting
(albeit with the adjective 'provisionally') whatever
territorial entities there currently are, and treating these as
'provisionally' rightful.


### 3.4 Nationalist theories



Nationalism has been identified as a relatively modern
phenomenon--with some theorists pinpointing its rise with the
French Revolution, and the associated principle of self-determination;
and others with the rise of print media, which created a community of
people who shared similar political values and aspirations and
identities, but were not related in a face-to-face way (Anderson
1983). Nationalism, even in its earliest versions, appealed to the
idea of a 'national homeland', but this was not defended
philosophically, nor grounded in terms of any particular values. More
recently, several theorists (Miller 2007; Meisels 2009; Gans 2003)
have sought to defend liberal nationalism, which involves articulating
an account of how a nation can come to have a particular territory.
The structure of this argument--identifying a link between the
right-holding group (the nation) and the land--has a Lockean
structure, but the right-holder is not the individual person, but
instead a collective--the nation. 



What is a nation? David Miller defines a nation as 



> 
> 
> a community (1) constituted by shared beliefs and mutual commitments,
> (2) extended in history, (3) active in character, (4) connected to a
> particular territory, and (5) marked off from other communities by its
> distinct public culture. (Miller 1995: 27) 
> 
> 
> 



The connection to land is *definitional* of a nation. The
relationship between people and land is not simply assumed: rather, an
account is given of the inter-relationship between group culture and
land. People who inhabit a certain territory shape the land that they
occupy; their culture is mixed with the physical characteristics of
the land, and the physical characteristics shape the culture that they
develop. Land has value for the people, both objective value, because
they improve it in various ways, building places of religious worship
and developing cities and irrigating farmland; and subjective value,
because the land comes to have symbolic significance for them, as they
bury their dead in certain places, build monuments to significant
historic achievements or losses, and so on. (Miller 2007:
217-218). In this way, a group comes to have a special
relationship to land that they occupy, and can make a better claim to
that land than any other group. This argument does not yet justify
territorial rights, however. This is established via a further
argument that in order to maintain value (subjective and objective) in
land, the people need to have jurisdictional authority over it (Miller
2012: 263).



This argument has no difficulty explaining the wrong of conquest (even
if the conquering state is more effective or objectively just than the
political order that it replaces), since the link between the group
and the land is established prior to the political order. Therefore
any conquest of the land represents a violation of the interests,
subjective and objective, of group members. Although the contours or
precise boundaries of the nation are somewhat permeable, this type of
argument is able to identify a group and then define the land to which
the group is entitled. It is not clear how exactly we are to
adjudicate cases where two groups are subjectively and objectively
attached to the same territory--as with Jerusalem--although
Miller seems to think that a comparative assessment of the claims will
be able to yield conclusions in most cases, and in some cases will
endorse a shared sovereignty arrangement (Miller 2014).



One key problem with this theory is that the territorial right-holder
is conceived of as a 'nation', and some have argued that
this is problematic because potentially exclusionary. Proponents of
this argument endorse a liberal form of nationalism, so conceive of
the culture as a thin, public culture potentially inclusive of many
different groups in society. Nevertheless, one might think that any
reference to a cultural nation suffers from both over-inclusion and
under-inclusion. The over-inclusion problem is that the actual
'cultural mixing' which is supposed to explain rights to
land could also apply to cultural groups that are not nations, such as
neighborhood cultures or sub-cultures in society. Do they not also mix
their culture with the geographical area and so have right to protect
the value so created? Another sort of problem is that any reference to
'cultural nation' might seem to raise the problem of
essentialism, which is that it rests on particular (essential)
features as necessary or important to the culture or nation, which
then has the effect of marginalizing people who do not share in that
feature (Moore 2019b). Miller is careful to offer a Wittgensteinian
family resemblance conception of nations, which is designed to address
the problem of essentialism by not specifying that any particular
feature or value is necessary, but one may wonder whether this
conceptual move is consistent with the account of 'value'
in the land, which may reify certain properties. 


### 3.5 Ethnogeographic Group Theory of territory



Avery Kolers, in his book *Land, Conflict and Justice,* puts
forward a theory of territory that has the same structure as
nationalist theories, in linking (unstructured) groups with land first
and then describing the state later, but he identifies the territorial
right-holding group as an 'ethnogeographic community'
rather than a nation. By this term, Kolers means a group of people
that (i) share a specific social ontology of land, and he clarifies
that this means "a culturally specific conception of land, what
land is, what about it is valuable" (Kolers 2009: 3-4) and
(ii) a specific material relationship with land, so that the community
in question is characterized by pervasive material interaction between
the land and the community. The two criteria--one subjective, the
other objective--are somewhat different, since the former seems to
include cultural significance and meanings, whereas the latter tracks
economic and functional considerations. However, as Kolers notes,
there are reasons to believe that our ideas about land often reflect
our material interests and material relationship with it. In his
examples, most cases exemplify both conditions. As these can come
apart, we could suppose that they are jointly necessary and sufficient
conditions.



Kolers' theory appeals to the notion of 'plenitude'
to explain how a group can be attached to an area, and this seems like
it ought to be able to adjudicate rival claims, and potentially limit
the scope of territorial rights. Plenitude, for Kolers, involves (1)
internal diversity, (2) external distinctness, each from the
perspective of the claimants, and (3) feasible plans for maintaining
these in perpetuity (Kolers 2009: 115). Plenitude is claimed to be
value-neutral in the sense that it does not rest on a normatively
contested theory of appropriate use, and is compatible with an
ecologically sensitive commitment to keeping some areas in their
natural state without reverting to common ownership in the sense of a
libertarian free-for-all. 



However, since 'plenitude' has a number of different
dimensions, it's not clear that it represents an authoritative
mechanism to decide between rival claims. More than one group can make
claims on those bases to the same piece of land. What if one group
recognizes its internal diversity and a different group its external
differentiation? What if neither has feasible plans for maintaining
them in perpetuity? Since this is not a single criterion at all, but
embodies at least three different requirements, it's possible
that all could be met by more than one group, or that some elements
could be met different groups. Unfortunately, Kolers does not indicate
what to do in this situation, which means that Kolers' theory is
less precise in addressing rival claims and conflict than it initially
seems to be. 


### 3.6 Self-determination theories



Self-determination theories of territory have the same overall shape
as nationalist theories, but they seek to avoid the difficulties of
assuming culturally homogeneous nations by ascribing territorial
rights to a 'people' understood as a politically-organized
rather than cultural group. Anna Stilz (2019: 10) argues that her
account is built on three pillars: a property-like right of occupancy;
the value of 'basic justice', conceptualized in Kantian
terms of the requirements of an 'omnilateral will'; and
the value of collective self-determination. Margaret Moore (2015: 66)
appeals to the first and third: that a state holds territorial rights
(by acting as a vehicle of self-determination" for a group; and
that the group must "legitimately occupy" the territory.
Although Moore does not emphasize basic justice as a requirement for
holding territorial rights (though she claims it is necessary for
legitimate governance), she argues that there are functional and
justice reasons why the state should be organized
territorially--to secure equal treatment for all citizens of the
state, justice, and the rule of law. Stilz deploys more Kantian
language, to describe her commitment to justice, but this isn't
central to her theory of territory, in the sense that it does not help
to define the boundaries of particular territories, nor does this
argument contribute to the justification for particular
territories.



Both Moore and Stilz explore the moral relationship between people and
place through invoking the idea of what it means for a people to
occupy a place. The central difference between Moore's and
Stilz's accounts are the different accounts of the holders of
occupancy rights. Both agree that the occupancy right-holder must
occupy the land legitimately (meaning that it has not displaced
someone else) and it must be rooted in that geographical space by the
life-plans and projects of the group's members. However,
Stilz's theory describes the holder of occupancy rights as the
individual; and Moore disaggregates different 'incidents'
of occupancy rights, so that some are held by individuals (which she
calls individual residency rights) and some are held by groups (which
she calls a group-based occupancy right). The key element, for Moore,
in the transition to territorial rights is the group-based occupancy
right. Both argue that occupancy requires more than physical presence:
the individual and/or group must be rooted in that geographical space
by the individual life-plans, and, for Moore, the collective projects
of the group's members.



There are three important challenges to self-determination theories.
Both Stilz and Moore can explain why people should not be expelled or
relocated--because it will disrupt their located life plans--but
neither can offer precise guidelines for boundary-drawing. This
is because Moore's group occupancy principle can only identify
heartlands of groups, but as she concedes, in many cases, this does
not draw precise boundaries because often groups overlap on the same
land. It does not therefore provide an easy solution to border
disputes. In many cases, territories cannot be parcelled into discrete
units and power-sharing forms of self-determination between groups are
necessary in particular areas. Stilz's theory seems to be even
less determinate with respect to identifying the location and scope of
territorial rights because it's not clear that individual
located life plans would converge on the same place at all. Although
Stilz uses the case of Navajos as a case of a group that was wrongly
expelled, it's not clear where the individual Navajos are
entitled to return to, and why their claims are any different from any
other person, who has plans with respect to a place, and in which,
individual variation being as it is, there may or may not be overlap
among different individual Navajos. 



Second, the emphasis on collective self-determination as the value
that territorial rights realize seems to apply most straightforwardly
to groups that engage in democratic self-determination, because then
we can then be confident that the state is the vehicle of the group
self-determination. If this is so, then, both Moore and Stilz are
vulnerable to the criticism that is parallel to one that is levelled
against justice theorists, viz., that either the bar to being a
territorial right-holder is so high that many states would not meet it
(which seems somewhat counter-intuitive); or the bar is so low that it
raises questions whether such an entity could be justified on a
self-determination argument. Both Moore and Stilz partially avoid the
most troubling implication of this as they argue that the appeal to
self-determination distinguishes between internal and external threats
to state territorial integrity and that they can thereby explain the
value that is lost by external intervention. 



Third, whether self-determination could be realized or not depends on
whether the occupancy group (in Moore's theory) or the aggregate
individuals who have occupancy rights (in Stilz's theory) have
the capacity to be the right kind of agent to exercise jurisdiction.
However, the capacity condition is normatively problematic. If we
define capacity broadly, it suggests that any state that is conquered
or failed lacks capacity and is therefore not an appropriate agent for
territorial rights. This is counter-intuitive, because many groups
lack capacity because they have been denied it through previous
injustice. Thus it seems that this condition is too sensitive to power
configurations for a normative theory of territorial rights. Moore
attempts to avoid this problem by emphasizing that there are
third-party duties to refrain from interference and to assist groups
that suffer from burdened conditions. However, this strategy could be
criticized as being *ad hoc*, in the sense that it is not based
on a principled definition of what counts as
'capacity'.


## 4. Future Directions



The recent surge of interest in territorial justice and territorial
rights may be attributed to the fact that it has become clear that the
different elements of the bundle of territorial rights are connected
to a wide range of increasingly important and pressing debates, such
as resource justice, migration and secession. Some of the most
interesting work on migration justice takes into account the issue of
rights over territory (Ochoa Espejo 2016; Song 2018). The interest in
resource justice may be connected to the obvious fact that there are
many different claims for common pool resources and some of these are
being increasingly degraded. This makes more pressing the question of
who has entitlement to control resources and what are the terms under
which individuals or groups should interact with such places
(Armstrong 2017; Nine 2014, 2019; Banai 2016). Armstrong (2017, 2018),
has focused on resource justice and on the special case of the oceans
which is a particularly significant common pool resource. Some of this
interest is connected to technological innovations which make possible
harvesting resources in the seabed, or potentially in space. 



Another area of recent interest has been the implications of occupancy
rights, which are discussed in self-determination theories, and has
recently been deployed in relation to indigenous land rights (Colburn
2019), gentrification (Huber & Wolkenstein 2018), wrongful
expulsion from land (Moore 2013), and people who inhabit islands which
are doomed to sink with the effect of climate change (Blomfield 2019;
Kolers 2012a; Nine 2019). If these theorists are correct to theorize a
moral relationship between people and place, then, the loss suffered
by people who are displaced by climate change cannot be redressed
fully simply by allowing them to migrate to another place: they have
lost their home and community, and the place that they are attached
to. 



There is also a burgeoning literature on territorial rights that
question the fixity of current theories, and give greater attention to
the overlapping and fluid nature of human's relations to the
natural world and its implications for governance, resources, and
diverse claims (see Mancilla forthcoming; Nine forthcoming). This is
another instance of the way in which focus on territory and
territorial justice has implications for a wide set of literatures in
quite different areas, and potentially gives rise to a host of related
arguments on diverse topics.