Territorial Rights And Its Justification

In the modern world, every state controls a particular territory and claims that it has some rights over its territory. The rights are territorially jurisdictional right, that is, the right to make and enforce rules over all persons in the territory claimed by the state, resource rights, that is, the right to benefit from the resources in the territory and regulate the use of that resource, the right to control the movement of persons and goods across the border. They can be called territorial rights as a whole. Territorial rights become the proximate cause of confining the institutionalization of some political values within the border of a state, for instance, democracy and distributive justice, and serve as a bargaining chip for states in the negotiations aiming to resolve the global issues which are increasingly serious, such as climate change, refugee crisis, and terrorism. Also, disputes about territorial rights over some lands are always used to whip up nationalism frenzy and potential threats to regional peace. Political theorists in the field aim at examining and justifying territorial rights, so that we would have more intellectual resources to reflect the political reality and issues. Thus, in the past decade, the field of territorial rights has abstracted some political theorists and became one of the new developments of political theory.The core problem in the research field is the justification of territorial rights: from the standpoint of moral theory, why territorial rights can be justified? The key to resolve the problem is to interpret the special relationship between a state and the territory it claims, that is why a state should acquire a particular territory. Although territorial rights is an important component of state power, traditional theories of legitimacy mainly focus on the legitimacy of the power over citizens, and ignore the that of the power over territory. Thus, from the standpoint of justifying territorial rights, it’s the defects of traditional theories of legitimacy and thus the theories cannot be used to explain the special relationship between state and the territory it claims. In order to remedy the defect, political theorists make great efforts to explore the potentials of traditional theories, or borrow some ideas from national liberalism. As a result, political theorists have developed three theoretical approaches of territorial rights: individualist theories, statist theories and nationalist theories.Individualist theories are severely influenced by Locke’s theories of consent and property. The theories insists that territorial rights, like other state power, is primarily holder by individuals and the state acquire the rights from individuals indirectly. Some theorists think that territorial rights can be justified by individuals’ consent. The point of view proceeds in the way: in the state of nature, every person has the right to enforce the natural law; and after they confer the right to states, they get into political societies; eventually, every state monopolizes the right to enforce the natural law in the territory it claims. This view of point can explain why a state needs a piece of land, but cannot explain why a state needs a particular piece of land. To figure out the particular relationship, individualists appeal to individual rights and argue that the territory of a state is made up of citizens’ land property. Thus, states should acquire the land, not other pieces of land. But individualist theories are faced with the difficulties that how to determine individual land property before determining the territory of the state, that is, how to determine and enforce the individual property rights without public power.Statist theories follow Kant’s theory of natural duty, and hold the view that the territorial rights, as one of public rights, are absolutely essential for the enforcement of the system of rights. It is argued that a state enforcing just institutions in a particular land should acquire territorial rights over that land. In other words, just state can acquire territorial rights over the land governed by them automatically. But the viewpoint is still focusing on the authority over citizens and thus problematic. A state organized by a group of individuals who occupied a land illegitimately, could not acquire territorial rights over the land, even if the state can enforce just institution. Therefore, a state cannot have authority over a particular land based on its authority over its citizens only if the citizens have prior rights of occupancy over the land. Some theorists thus appeal to citizens’ individual rights of occupancy to fill up the gap between the two kinds of authorities, and argue that under the condition that the citizens have the right of occupancy over a particular land, and the state can have territorial rights over the governed territory if it has the authority over its citizens. This is successful to explain why illegitimate occupancy cannot acquire territorial rights, but fails to figure out why legitimate occupancy cannot result in territorial rights too. Shortly after the WWⅡ, American occupied part of Germany legitimately. But American could not acquire territorial rights over the land even if it could guarantee that Germany people can have equal rights to the American. Statist theories appeal to the collective rights of people, that is, the meta-jurisdictional rights over the territory they are living. The can rebuild their stat when it fails with the meta-right. Thus, other states cannot acquire territorial rights over their land even if they can occupy the land legitimately. However, the argument is contrary to the instance of statist theories. According to the argument, territorial rights are primarily held by the people. By the contrast, nationalists insist that the rights are primarily held by the state. Therefore, nationalist theories are lack of consistency.National theories have developed in the tradition of liberal nationalism. The theories argue that nations are the primary holder of territorial rights, and states acquire the right from the nations directly. Liber nationalists think that nations have transformed the land through collective action and added some material value and symbolic value to the land. Nations should have the territorial rights over the land to enjoy the values. Nationalist theories can explain why a nation is attached to a particular land, that is, this is the nation who creates some material values embodied in the land and the land is also of historical or cultural value to the nation. But the difficulty for nationalist theories is why the creation of the relationship should be attributes to the nation, not the individuals, considering the fact that all transformation actions have been conduct by individuals. To resolve the difficulty, nationalist theories should insist that the creation results from national collective action. But nationalist theories have not put forward plausible argument for collective action.This thesis follows nationalist theories, and borrows some ideas from individualist and statist theories to argue for collective action and the values created by the actions. At the end of the thesis put forward a more plausible theory of territorial rights. According to the theory, the values supposed to be protected by territorial rights are the values related to land and collective right of self-determination, and the collective with these two values is the territorially active political community who is the primary holder of the right. The territorial rights of the state are from that of the political community. The theory can explain the special relationship between the state and the land without losing consistency.