II. The State as a Public Person: The International Law Story

International law defines a sovereign state as a population ruled by an independent government in a territory. ^{Footnote 9} Each state has a number of powers, the most important of which is the power to enact and enforce laws in its territory. The state is a subject of international law, and territory is essential to statehood. There is no state without territory.

The international law of territory is simple. States acquire territory much in the same way physical persons acquire property. Like individuals, states acquire title originally or derivatively. They acquire title originally when they occupy the territory. “Occupation” is a legal term of art: a state occupies a territory when it performs relatively uncontested acts of jurisdiction there. ^{Footnote 10} States acquire territory derivatively by cession. The validity of title will depend on the validity of the title of the ceding state. International law is indifferent to whether the cession is a sale, as in the Louisiana Purchase and the Alaska Purchase, or if it is instead the result of a political decision by the ceding state. Modern international law sometimes requires some form of popular will, such as a referendum, to change the status of the territory, but the question of the relevant demos remains elusive. Who votes to decide the status of Crimea? The Crimeans? The citizens of Ukraine, the state that has (or had) sovereignty over Crimea? Moreover, current practice does not require referendum in all cases. ^{Footnote 11} While modern international law prohibits conquest and coerced cessions of territory, these prohibitions do not apply retroactively. If the territory was conquered (with or without a subsequent treaty) prior to the emergence of the prohibition (circa 1945), the title of the conqueror is valid today. All in all, international law strongly favors the territorial status quo in the interests of international stability. Proven long use (where “use” is defined as the exercise of jurisdictional powers) is almost always decisive.

The international law of territory serves useful purposes. It often provides an answer to the question why a state has a title to this territory and not to a different one. The answer is that a state has title over a specific territory when it has historically performed relatively uncontested jurisdictional acts there. By demarcating the territories, these rules serve the goal of international stability. And international law’s focus on effective political power as the standard for evaluating territorial sovereignty avoids difficult questions of political legitimacy, and at least minimally arbitrates territorial differences among states.

Despite those advantages, even a cursory evaluation of international law discloses serious external and internal moral flaws. From the international point of view, virtually all current states hold their territories as a result of violent conquest. Effective occupation equals title over that territory, but international law does not care about the justice of that occupation: it simply validates virtually any effective occupation. The current system of territorial sovereignty is unjust, then, solely on the grounds that most states stole their territories from other states or groups.

From the domestic standpoint, international law does not address the question of how states justify their territorial title vis-à-vis their own subjects. The fact that rulers stole the land and its resources from their own subjects is irrelevant for international law. The rules of territorial acquisition apply to all states, good or bad, thieves or saints. There is no such thing as unjust control of territory by a state that has effectively occupied the territory yet has stolen the land and resources from its own people. More: there is no such thing in international law as a state’s stealing territory or resources from its own people. ^{Footnote 12} This occurs because international law does not protect private property rights. It is agnostic about political-legal systems, and the law of human rights does not really protect individuals against governmental dispossession. ^{Footnote 13} It follows that governmental appropriation of land and resources is as much an instance of “permanent sovereignty” over resources as a political system that relies on private property. The ownership of oil by Saudi Arabia’s royal family is Saudi Arabia’s sovereignty over oil, and it does not matter, legally, whether the royal family took the oil fields from its subjects. In international law, people have virtually no private rights in land against the state.

Another problem is that states often do not really represent their subjects. While international law tends to favor basic human rights and democratic governance, any regime that wields effective political power is deemed to act on behalf of its population. But this presumptive representation is not really a relationship of agency in any moral sense. ^{Footnote 14} Whether or not the state really represents its subjects, or protects their rights, is irrelevant for the purpose of territorial rights. North Korea, a tyrannical outcast regime, has, under international law, sovereignty over the territory it effectively controls. A tyrannical state may violate the international law of human rights, but that will not affect its claim to territory.

The international law of self-determination deserves a separate paragraph. This body of law proclaims that “peoples” have the right of self-determination. ^{Footnote 15} There is considerable uncertainty about what constitutes a people, and I cannot address this difficulty here. ^{Footnote 16} Suffice it to say that international law favors a nationalist concept of “people.” The dominant interpretation is that a “people” is defined by ethnic status, but practice has not been consistent on this point. ^{Footnote 17} If a group is a “people,” then under current international law it must be consulted before effecting a territorial change. If a group is not a “people,” then it need not be consulted. Because the opinions of governments about which groups are “peoples” are hopelessly blighted by politics, the resulting practice is unprincipled and largely incoherent.

These problems counsel against a philosophical reconstruction of international law. Rather, a theory of territory should attempt to find a justification of the state’s territorial claims in light of applicable moral principles. The argument in this essay is normative in that sense. It departs from international law and from the philosophical theories that track international law. Given the deficiencies of international law, the revisionist import of my argument is, I believe, one of its advantages.

III. The State and its Territorial Claims

We saw that international law defines a state as an entity composed of population, territory, and government. Refining that view somewhat, we may say, with David Copp, that a state is the animated institutions of government. ^{Footnote 18} A state consists of “populated” institutions, as it were. Institutions may endure over time and be populated by different persons at different times; or institutions may change. The state is a set of institutions populated by persons who occupy the offices defined by those institutions and who rule over the subjects. A territory, we may say, is the locus of the state, since state powers must be exerted somewhere. Territory is, then, a necessary condition of the state.

The territorial powers states actually claim have been well described by Cara Nine:

1. a) Jurisdictional rights over persons within the territory;

2. b) Jurisdictional rights over resources within the territory;

3. c) Ownership rights over resources within the territory;

4. d) The authority to determine residence, immigration, and citizenship rights regarding the territory. ^{Footnote 19}

This formulation improves over traditional alternatives because it accurately distinguishes between jurisdiction and ownership. As we shall see, this distinction stems from the parallel distinction between substantive and executive powers over land. The list above describes, more or less, the actual claims that states make. But I contend that those claims are excessive. I suggest instead that:

1. 1) States’ could properly claim powers a) and b) as delegated powers;

2. 2) States have no legitimate powers under c), that is, they have no ownership over resources; and

3. 3) States’ powers under d) derive indirectly from original private property rights over land.

A corollary is that the exercise of territorial sovereignty must respect the individualist rationale of those rights. This means that the state, to be legitimate, must respect private property rights. The state may not enforce just any system of property rights in its territory. Enforcement of private property rights is a necessary condition of the legitimacy of the state’s territorial rights.

IV. Private Property as Required by Justice

My argument draws from the Lockean tradition of justification of political power. ^{Footnote 20} In this tradition, all legitimate state powers are surrendered by individuals who originally possessed them prior to the emergence of political authority. ^{Footnote 21} The powers of the state are never natural; they are always derived from the moral rights and powers of those who become citizens. ^{Footnote 22} Prior to the establishment of political authority, individuals have rights. These are natural rights in the sense that persons have them independently of the law of the state. Many people have doubted this; it behooves me, then, to offer a justification for natural rights, and specifically for the right of private property.

I rely on two strands of justification. The first is that rights are central to the pursuit of autonomous personal projects. ^{Footnote 23} Rights are the vehicles through which we express our autonomous nature. They define the sphere of freedom in which a person herself, and not others, gets to make decisions about her life in a manner consistent with an equal freedom for others. The second justificatory strand is consequentialist. Rights are valuable because they are vehicles for the pursuit of the individual good and the general well-being of society.

Like other moral rights, the right to private property is supported by both kinds of considerations. Autonomous action has an indispensable spatial or external dimension. ^{Footnote 24} Our bodies are the vehicles that in part make up our external actions, and our actions in the world are physical actions; they necessarily are enacted in a certain place at a certain time. Autonomous persons must be entitled to make decisions within a certain sphere that is defined in spatial-temporal terms. Rights offer control over parts of time and space, and as such, they offer people the protected ability to make their own decisions and thus pursue their projects. ^{Footnote 25}

The consequentialist considerations that support private property rights are well known. Private property rights form the engine of individual and societal prosperity. They enable producers to enjoy the benefits of productive effort by creating economic value in excess of original holdings. This is possible because property rights allow persons to internalize the costs and benefits of their decisions, thus realizing gains from trade. Private property rights convert negative-sum games to positive-sum games, thus allowing society to flourish as a cooperative venture. ^{Footnote 26}

These economic observations are familiar, but they have the startling consequence that a successful society must be capitalist, and that therefore global justice, to the extent that it cares about wealth creation and the alleviation of poverty, requires capitalism. ^{Footnote 27} By capitalist societies I do not mean only laissez-faire societies. I mean that prosperity requires a system with the right incentives for creating wealth — it requires healthy markets. The right incentives stem from robust private property rights, themselves a precondition of healthy markets. Healthy markets are compatible with reasonable redistributive policies, such as a safety net for the poor. Good institutions are inclusive when they provide incentives to engage in productive behavior. Bad institutions are extractive in the sense that they enable governmental depredation and generate societal zero-sum interactions. ^{Footnote 28} We may say that inclusive institutions facilitate the pursuit of personal projects; extractive institutions frustrate them. For these empirical reasons, justice requires a robust legal regime of private property rights. The suggestion, common in the literature, that global justice should be agnostic amongst property regimes, is a mistake. ^{Footnote 29} Political systems that suppress or seriously hamper markets are unjust. ^{Footnote 30} The case for private property rights, then, is overdetermined. Property rights are required because they reflect individual autonomy and because, as a precondition of markets, they are the best tool known to humans to generate material wealth.

V. The Social Contract: Executive Rights as the Basis for Territory

Individuals in the state of nature have rights. ^{Footnote 31} In the absence of political authority it is left to them to protect those rights. If someone attacks me, I am entitled not only to repeal the attack, but also to punish the aggressor. This means that on close inspection individuals have two kinds of natural rights. They have first-order substantive rights to life, liberty, and property, and they have second-order executive rights designed to protect their first-order rights. ^{Footnote 32} Social contract theorists uniformly point out the instability of the scheme of rights in the state of nature. For Locke, self-help is a major inconvenience in the state of nature. For Kant, in the state of nature individuals are subject to the private will of others, a situation that is incompatible with the civil condition. ^{Footnote 33}

But people are not only uncertain about the aggressive intentions of others. In the state of nature they worry about several problems. First, people tend to overpunish; and second, social stability requires a reasonably precise definition of the boundaries of our rights. Thus, it is rational for people to create an impartial authority to solve those problems. Civil government will enforce rights; legislate with the aim of making rights reasonably determinate and precise; and adjudicate disputes among persons who disagree about the extent of their rights or about whether or not rights violations have in fact taken place. These are executive, legislative, and judicial powers, but we can call them, for brevity, executive rights. ^{Footnote 34}

Now let us assume that persons can legitimately acquire property. Because of the difficulties just described, in a joint act they will delegate to an impartial authority the power to legislate about, enforce, and adjudicate their property rights. When those executive rights are, through the social contract, transferred to the state, they become jurisdictional powers. ^{Footnote 35} Jurisdictional powers are the powers of the state to legislate, adjudicate, and enforce that are the result of a joint transfer by individuals of their executive powers. ^{Footnote 36} These powers relate to many aspects of social life. The state is empowered to punish criminals, protect our freedoms, and defend us from foreign enemies. In Kantian parlance, this acquisition of jurisdictional powers by the state enables the civil condition where our rights, which in the state of nature were only provisional, become conclusive. ^{Footnote 37}

Territorial sovereignty is the state’s jurisdictional power over land. This jurisdictional power is delegated individual executive power. The land to which these jurisdictional powers refer constitutes the territory of the state. The state wields delegated regulatory powers over that land, powers that become necessary because of the indicated difficulties of private interaction. Thus, it is incorrect to say that the state’s territory is land submitted to the state by individual consent. ^{Footnote 38} Property owners have not submitted their property to the state. They have not transferred title to the state. Instead, they have delegated to the state the executive powers over land that they cannot exercise on their own without falling prey to the inefficiencies of the state of nature.

The first component of territory, then, is the privately owned land over which the state exerts the delegated jurisdictional powers to legislate, enforce, and adjudicate. But this is insufficient. We must add a second component of territory. In order to discharge its legitimate functions, the state may need additional land. Additional land resources may serve two distinct goals. The first goal is to enable the state to provide genuine public goods. For example, people need to move about, go to their workplaces, and visit others. People need roads for these activities. For technical reasons, roads presumably cannot be produced privately; therefore, the state is empowered to build them. And because building them requires land, additional land must fall under the purview of the state. The same rationale may apply to other genuine public goods. ^{Footnote 39}

Moreover, a second goal served by additional land and resources is to enable the state to promote justice. Let us assume that justice requires some redistribution of wealth. For example, following Kant, let us assume that justice requires providing for persons who cannot tend to their “most necessary natural needs.” ^{Footnote 40} This will require the state to collect taxes beyond those needed to discharge its normal functions (courts, police, defense, public goods.) When taxes are required by justice, they constitute a permissible dispossession of property. If, in addition to taxes, this justice function requires land, then that land may legitimately be transferred to the state. These dispossessions are justified because they are within the scope of the delegation of functions to the state. This delegation involves some transfer of property to the public domain. If this property is money, then it will constitute the public treasury. If it is land, it will become public land.

At this juncture someone could object that since I just conceded that justice may require redistribution, it follows that the state can widely dispossess owners in order to realize justice. Not so. The notion of justice I accept here must cohere with what I claimed in the previous section: a just society must recognize robust property rights. Strongly redistributive schemes such as socialism or property-owning democracy are unjust because they infringe on personal autonomy and because they demonstrably harm persons. ^{Footnote 41} In contrast, a system of private property rights with a reasonable safety net for those who really need it can be just. The view that the state’s mission is to enforce justice, and that such a mission legitimizes territorial sovereignty, is correct. But contrary to alternative accounts, I suggest that respect for private property rights is required by justice. There are no magic formulae, but the general idea is that any system of taxation that frustrates the autonomous pursuit of personal projects and saps the incentives for productive behavior is unjust.

The land required by the provision of public goods plus the land required by justice make up the second component of the state’s territory. These two categories exhaust the state’s territory. To repeat, the state’s territory consists of:

1. 1) The privately-owned land over which states exercise delegated jurisdictional powers; and

2. 2) Public land in a loose sense, that is, the land the state needs to supply public goods and realize the requirements of justice –which themselves must cohere with the respect of private property.

VI. The Statist Theory of Territory

This individualist theory of territory departs from recent collectivist accounts of territory. According to Anna Stilz, a state has territorial rights when it fulfills four conditions:

1. (a) it effectively implements a system of law regulating property there;

2. (b) its subjects have claims to occupy the territory;

3. (c) its system of law “rules in the name of the people,” by protecting basic rights and providing for political participation; and

4. (d) the state is not a usurper. ^{Footnote 42}

Stilz, following Kant, says that the state transforms a multitude of persons into a “people” by providing a “unitary and public interpretation of the rights of individuals.” ^{Footnote 43} Individuals have occupancy rights, defined as “a claim to be in legal residence on that territory: to be physically present and to have one’s rights defined and enforced by whatever state has jurisdiction there.” ^{Footnote 44} Territorial sovereignty is the way in which the state enforces occupancy rights. Territory, in other words, is the locus for the exercise of the public will. It follows that territorial rights reside in the state, not in individuals, even though the state, to be legitimate, must act in the interests and on behalf of individuals.

This argument, too, improves over prior treatments. Stilz’s rejection of the nationalist conception of territory is welcome, especially given the popularity of such conceptions in many circles. ^{Footnote 45} However, the argument is unpersuasive because it unduly merges substantive rights with executive rights. Let us grant the premise that the state is necessary to define and adjudicate individual rights. It does not follow that individuals surrender their substantive rights. On the contrary, the state must protect, define, and adjudicate the rights that people already have. The state is the impartial enforcer of the property rights of the subjects, and this means of each of the subjects, not the subjects as a collective. The fact that the state is required to define and adjudicate rights does not turn rights-holders into a collective “people” on whose behalf the guardian manages the land. ^{Footnote 46}

In order to stake her collectivist claim, Stilz must deny that people can have pre-political property rights. Nowhere does she concede (contrary to Kant) that those property rights are pre-political rights (albeit temporary) that the state must respect. ^{Footnote 47} Indeed, Stilz does not include private property on the list of basic rights that she provides as standard for territorial legitimacy. ^{Footnote 48} The denial of moral property rights becomes evident in Stilz’s second step of the argument. She claims, as we saw, that individuals have a right to occupancy, a right to reside in the territory. Stilz correctly observes that if people could be displaced at any time, most of their goals and pursuits would be frustrated, because occupancy secures persons “a range of options and opportunities within which to form and pursue life plans.” ^{Footnote 49} And it is this right to occupancy that the state recognizes and enforces by means of its territorial rights.

However, the same autonomy-based arguments that support occupancy rights support a moral right to property. It is not only residence that is crucial to the pursuit of life plans. Autonomy demands that we control the space around us, and not merely that we have a space in which to reside. We must be able to set ends for the objects we possess. ^{Footnote 50} A proper recognition of people’s autonomy involves respecting each of their separate spheres for exercising autonomy, and since these spheres necessarily have a spatial and temporal dimension, the respect that is due to autonomous beings involves granting them a rights-protected space. Thus understood, the right of property includes not only the right of occupancy: it includes all the other common incidents of property –notably the rights to exclusively possess, use, and transfer property. Moreover, the consequentialist reasons that support private property reach well beyond mere occupancy. The ability to produce and trade requires more than the ability to be somewhere. It requires the ability to engage in the economic exchanges that generate individual and societal prosperity. ^{Footnote 51} A right to occupancy protects us solely from displacement; a right to property protects us from theft, thus allowing us to engage in productive behavior. ^{Footnote 52}

VII. The Collectivist Theory of Territory and the Problem of Resources

Under the view defended here, states do not have any ownership rights; they have only jurisdictional rights. Citizens have not transferred ownership rights to the state. This account rejects the collectivist claim, put forth by Cara Nine, that resources, including land, are owned by a collective entity, the state, or the people, whether or not that state recognizes legal private property rights. ^{Footnote 53} On this view, the collective entity has the ultimate title over resources. Collective entities acquire territorial rights directly, not indirectly via a transfer of rights by individuals. ^{Footnote 54} Meeting basic human needs requires “collective transgenerational management” of resources to make sure those resources will be available to all persons, present and future. ^{Footnote 55} Only collective management over time will maximize the use of resources and realize justice. And territorial rights, which involve the collective entity’s right to exclude outsiders, are the tools to achieve full flourishing by the members of the collective. ^{Footnote 56} That is why the state is entitled to coerce even those who do not consent to its authority. And that is also why private property rights (if recognized by law at all) are subservient to the supreme authority of the state.

I adopt a different view. My argument treats coercing groups as moral agents of the people, and not merely as entities that happen to serve their members’ interests. In the exercise of those powers, rulers (officials of the collective) act on behalf of everyone, not because they do a good job at serving their interests, but because they have been authorized to perform that job. It is only in this sense that collective entities can have coercive powers. I reject, then, the idea that the coercion exercised by A against B is justified just in case it better serves B’s interest. Since A has no natural authority over B, B must authorize A to use coercion against B. Collective entities may facilitate the pursuit of personal projects, but this does not mean that they have the legitimate power to coerce persons in the absence of an agreement to that effect. The collective cannot just show up and say: “I can better serve your needs, so from now on I will be the manager of your resources, whether or not you agree.” Public officials, in order (legitimately) to act coercively on behalf of the group, must be authorized to do so.

If we look at the details of Nine’s argument, more doubts emerge. She writes that in order for a collective to appropriately acquire territorial rights the members of the collective must share a conception of justice which then the group enforces in the territory that the collective has acquired. ^{Footnote 57} Following standard treatment, we can distinguish between conceptions of the good and conceptions of justice. In my judgment, the argument that a collective entity is legitimate (for the purposes of acquiring territory on behalf of its members) just in case its members share a certain conception of the good is false — at least within anything resembling the liberal tradition. Groups are collections of individuals with different aims, goals, affections, and projects. There is no such thing as an enforceable collective conception of the good. ^{Footnote 58} The state is supposed to remain neutral among personal projects by protecting the rights that are instrumental to their pursuit.

I take, then, Nine at her word when she requires that a state, to be a territory-acquiring entity, must enforce a conception of justice, as different from conceptions of the good. We can say, for simplicity, that a society’s conception of justice is reflected in its material constitution, its actual political practices. The constitutional law and practice of a society reflect its conception of justice. However, this requirement faces a serious difficulty: a conception of justice is either true or false. If it is false, the right of the collective entity to acquire territory collapses. If the shared conception of justice countenances oppression of women and minorities, or prohibits political dissent, or authorizes torture or secret criminal trials, then it is morally impotent to ground any right asserted by the collective, including territorial rights. So the requirement should be interpreted as referring to a true conception of justice. On such view, only a society that upholds a true conception of justice is morally entitled to acquire territory on behalf of its members.

Now for the reasons indicated, a true conception of justice must protect private property. Because of this, and because territorial sovereignty is delegated power, the collective entity is not entitled to enforce just any conception of justice. The state’s main job is to enforce everyone’s rights, including property rights. While, as noted above, the system of Lockean rights does not exhaust justice, it is its central feature. Only such a system allows persons to pursue their projects according to their own lights. They can, that is, pursue divergent conceptions of the good — they can be free — as long as they respect the rights of others. Property rights are as much part of justice as free speech, religious freedom, freedom against torture, personal integrity, and nondiscrimination.

The state’s territorial rights are surely grounded on justice, but they are grounded on Lockean individual justice, not collective justice. States that violate basic rights of individuals or groups do not qualify. But nor do states that dispossess legitimate owners in order to pursue any variety of collective goals. To be sure, Nine seems to accept the autonomy-based reasons that justify private property, which she then transposes to justify collective acquisition of territory. ^{Footnote 59} But this concession is at odds with her earlier refusal to take a stand on the relationship between property rights and territorial rights. ^{Footnote 60} If private property is supported by autonomy reasons, as Nine apparently concedes, then a state must enforce private property rights. Conceptions of justice that suppress or undermine markets are false, and the states that enforce such systems, unjust.

We saw that property rights are grounded in the value of personal autonomy. Nine transposes the moral reasons in support of private property to justify collective acquisition. She claims that territorial rights are necessary for individual autonomy because they are prerequisites for the realization of the (group’s) right of self-determination. ^{Footnote 61} This argument presupposes that groups have a collective right to self-determination. The idea that collective entities have the right to determine themselves is so rooted in the political imagination and in international law that it may sound farfetched to deny it. Yet, if the right of self-determination means the right of rulers to forcibly coerce dissenters in projects that are not required by justice, then I want to deny it. The only legitimate associations are voluntary associations, and the only legitimate coercion is authorized coercion.

Many people think that just as individual autonomy is a value, so group autonomy is a value; just as persons pursue individual projects, so groups pursue collective projects; just as persons seek the private good, so groups seek the collective good. But this analogy does not hold in a straightforward way. Surely groups can have great value for their members. Groups can facilitate the achievement of goals that cannot be achieved individually. But this moral value of groups holds as long as they are voluntary. Groups are importantly disanalogous to individuals. An individual has a mind that makes plans and weighs options, alternatives, values, and goals. She may err, of course, but her error will be the result of her considered judgment about how she desires to pursue her personal project — how to lead her life on her own terms. Groups, on the contrary, do not have minds. They are collections of individuals where some cooperate but others dominate, exploit, and prey on others. When an individual forms a life-plan, she acts freely (with the usual caveats and exceptions.). When a ruler devises a plan for society, he coercively enrolls others in his projects, whether his projects are shared by many or few. I do not dispute that it is possible to say that groups have ends, interests, or projects that are not conceptually reducible to individual ends, interests, or projects. ^{Footnote 62} But it does not follow that the group leaders can coercively impose those ends on the dissenters within the group. This is obvious in the cases of nondemocratic governance, but it is also true where majority rules. Most of the time an individual is the best judge of her interests and welfare; most of the time, those who rule the group are not the best judges of the interests and welfare of its members. This means that nonvoluntary collective self-determination — that is, a collectively coerced decision about the political status, or the cultural identity, or the economic system of a group — is morally suspect. The realization of human ends, including those that can be realized collectively, should in the last analysis be the result of voluntary interaction among free individuals. There are no nonconsensual goods for collectives, nations, or tribes (over and above the goods of persons who comprise the collectivity) that group leaders can permissibly enforce. My claim, then, is normative, not conceptual: the only morally valuable projects are (1) individual projects and (2) voluntary group projects. Even if we can meaningfully speak of a group project, my claim is that (with narrow exceptions such as catastrophic events where consent cannot be secured prior to confronting them) group leaders cannot permissibly impose that project on dissenters.

Defenders of collective self-determination point out that such a concept is necessary to affirm the right of a self-determining group to be free from domination by another self-determining group. ^{Footnote 63} Yet that worry can be naturally addressed by the individualist account. Citizens are morally free from domination by outsiders by virtue of their powers to exclude trespassers inherent in the right of individual property, and by virtue of the jurisdictional powers that the state exercises on their behalf, including the power to exclude trespassers. Cases of a group unjustly dominating another group, such as cases of colonial domination, are best analyzed as violations of moral rights, and especially property rights. When the British Empire occupied Uganda, it violated any social contract that may have existed in Uganda. If there was no social contract in Uganda, then the authority over land reverted to the private property owners. An imposition of British personal and territorial jurisdiction over those property owners was an unjust imposition. Collective entities and their rights of self-determination do no additional work.

I now turn to the consequentialist reasons against collective ownership. The economic considerations that support private property rights cannot be entirely transposed to support collective ownership. Property rights are beneficial because they create individual incentives for the creation of wealth. As explained above, they allow people to internalize the costs and benefits of their decisions, a process which in turn steers a multitude of individual economic decisions toward societal benefit. These advantages are not entirely applicable to collective property. ^{Footnote 64} Collective property often encourages central planners to make economic decisions without incurring the costs of mistakes, thus leading to inefficiency and impoverishment. In a system of collective property, resources are not put to their best and highest-valued use. Managers do not gain when the values of the resources increase, and do not lose when the values fall. Therefore, they have little incentive to heed changes in market-revealed values. ^{Footnote 65} This theoretical prediction is confirmed by experience: history has not been kind to collective ownership. Cara Nine’s defense of a perpetual collective manager flies in the face of what we know about the creation of wealth and individual and societal prosperity.

To be sure, not all writers who defend collective ownership of resources support a right of government to seize resources at will. Rather, these writers maintain that collective ownership is justified if it is granted democratically. ^{Footnote 66} Yet, while a majoritarian decision to dispossess legitimate owners might be less problematic than a dictatorial decision to do so, it may still be open to question. If, as I have suggested, property rights are moral rights, they should be protected against majoritarian dispossession. If a right can be canceled whenever the majority thinks doing so advances the common welfare, then it is not a right. Of course, property rights do not trump everything. I have suggested that the state has delegated powers to provide genuine public goods and to establish a sufficientarian safety net. But the state is not the owner of land and resources, and thus it cannot decree expropriation in a manner not licensed by the original delegation.

This problem is not merely theoretical. It is dramatically illustrated by the kleptocracy phenomenon. A kleptocracy is a state that steals from its citizens. Kleptocracies concentrate power in the hands of powerful elites and block the mutual benefits that generate economic growth. In a kleptocracy, the government and its friends run roughshod over property rights and freedom of contract. These regimes prey on those who produce and end up harming everyone except themselves and those who help them stay in power. ^{Footnote 67} Interestingly, kleptocracies can be democratic and observe traditional civil rights. This is because, as long as they can win elections, they do not need to put people in jail to enact confiscatory laws. Moreover, their ability to confiscate wealth is the reason they win elections. It is called populism. This is a challenge for writers like Leif Wenar who endorse democratic transfers of resources to the state. The global justice literature, with its exclusive insistence on global redistribution and (less vigorously) traditional civil rights (to the exclusion of property rights) as the only marks of legitimacy, has overlooked this serious problem. Societies afflicted with this problem will only prosper by establishing the rule of law plus robust private property rights enforced by an independent judiciary.

Justice, then, requires capitalism, perhaps accompanied with reasonable redistribution measures. This means that, with the few exceptions noted, resources should be privately owned. The view that resources belong to the “people" unfortunately enables predatory rulers (even democratically-elected ones) who in the name of the “people” dispossess legitimate owners, suppress markets, and use the stolen wealth to consolidate their power. A theory of territorial sovereignty that is agnostic about property rights overlooks their moral and economic significance. Legal systems where the state owns resources, such as various forms of socialism and property-owning democracy, popular as they are in academic circles, are unjust. I am aware that this disqualifies a great number of current states. So be it. As I said, my purpose is normative, not reconstructive of current practice.

VIII. The Purpose of Territorial Rights

A corollary of my argument is that states have a duty to exercise their territorial rights in a manner consistent with their individualist foundation. ^{Footnote 68} Individuals, as we saw, delegated general executive powers to the state. One is the power needed to protect individuals against one another. To that end the state enforces the law in the territory constituted in the way I indicated, as the addition of private and public land. Another protective power is national defense. Here the state defends its citizens and its territory, which, again, is defined as the sum of private and public land. In discharging these functions the state is constrained by the central end of government: to protect the rights and possessions of everyone. Thus, for example, when conducting criminal trials the state must be mindful that criminal punishment is a pro tanto grave invasion of a person’s rights. For that reason the state must surround those trials with appropriate guarantees. Similar reasoning applies to national defense. The state must constantly be aware that national security reasons should not serve as pretexts to undermine citizens’ rights. After all, the preservation of those rights justifies the state in the first place, and therefore justifies national defense as well.

The same approach applies to land. The state will wield those powers legitimately only if it respects private property. It is unjust for the state to institute a collective property system, or to seize the means of production, or to expropriate in ways not licensed by the exceptions mentioned above.

This general principle of individualist exercise of territorial rights has consequences in a number of areas. Consider immigration and trade. Property owners have the right to allow persons on their property, and the state, out of respect for private property, cannot permissibly impede such access. This applies both to insiders and outsiders (defined as persons who were not members of the group that formed the state.) The state’s political borders are outward demarcations of private property and public land (itself derived indirectly, as we saw, from private property). ^{Footnote 69} International law upholds the discretionary power of states to control their borders, but this is morally unwarranted. ^{Footnote 70} The only permissible state functions regarding people’s movement is to enforce property rights and to set the rules of use of public lands. The owner, not the state, has the right to exclude persons from her property.

The same considerations apply to trade. ^{Footnote 71} Interfering with trade is interfering with property rights in a manner not licensed by the original delegation of jurisdictional powers. Many people think that the state “owns” the territory and can legislate in that territory to serve various collective goals. This, I suggest, is the wrong way to think about the state. The state serves the individuals who created it and who themselves own the land. There is no legitimate coercively imposed collective goal, national destiny, or group project. This means that the state may not wield its coercive powers to undermine the rights, including rights in land, from which those coercive powers sprung.

IX. Objections Considered

Writers who defend collectivist theories of territory have rejected the individualist position I defend here. The criticisms of such writers share a common theme: the individualist account cannot explain the territorial rights states actually claim; therefore, the individualist account must be wrong. This line of reply begs the question of the justification of those claims.

Cara Nine disputes the private-property approach by pointing out that under it individuals would have a right to leave the state, taking their property with them. ^{Footnote 72} They would have, that is, a right to individual secession. Now the right of individual secession is incompatible with our common concept of territory, and for that reason, Nine thinks, we should reject the individualist approach that supports such a right. ^{Footnote 73} Nine is correct that the right to individual secession is incompatible with the received concept of territory. However, this does not undermine my argument, because I reject the received concept of territory. My argument challenges the established dogma that the state’s overarching authority eclipses private rights to property. If the common concept of territory is inconsistent with the individual right to secede, I am tempted to say that this is too bad for the common concept of territory. Fearing the consequences of individual secession is another symptom of statist bias, of the extent to which we have been indoctrinated to accept the irresistible powers of the state. ^{Footnote 74}

Having said this, my approach does not require endorsing individual secession. Individual secession may be wrong for two reasons. First, the delegation by property owners of executive land powers to the state is at the same time an agreement among them. Individual secession is likely to seriously upset compliance with the agreement, because it might impede the even-handed, smooth, and impartial exercise of the executive functions of the state (for example, a property owner who loses a court case may decide to secede and thus frustrate the very point of the delegation of powers.) It is plausible to assume that the original agreement bans opportunistic defection; that is, it either prohibits individual secession or stipulates that secession will be allowed only by a new mutual agreement. Second, once government is established, the decision of an individual to secede can have severe negative externalities, even if we do not assume a clause in the original contract addressing the problem. So, just as we can safely assume that government has implied powers to address catastrophic emergencies such as wars and natural disasters, so we can assume that government has the power to prevent individual secession if it will gravely harm others.

Similarly, David Miller thinks that the position I defend here, that territorial rights are really second-order executive rights that individuals originally possess, fails because “it would obscure what is often at stake in controversies over territorial rights, namely who, if anybody, can make an exclusive claim to the resources that the territory makes available.” ^{Footnote 75} Again, Miller is correct that the individualist theory fails to explain the strong claims that states make over resources. ^{Footnote 76} So, he thinks, the individualist theory must be wrong. Here again, this objection leaves my position intact, because I deny that states have ownership-like claims over resources. The states’ claims, endorsed by Miller, to use land resources as they see fit are simply unjustified.

In the same vein, Avery Kolers writes that because the individualist account cannot explain some features of actual territorial rights, then it has to be mistaken. ^{Footnote 77} For example, Kolers says that the state cannot evict tenants en masse and cannot destroy objects of great worth. But of course, on the individualist account, the state cannot do these things because it has no moral authority to do so. Only individuals can admit persons to their property, and only individuals can originally own objects of great worth. Kolers also claims that the state has “positive obligations toward outsiders and future generations that property owners lack,” obligations that only the state can discharge. But this is not a rebuttal of the individualist view. Individuals may discharge whatever obligations they may have toward outsiders and future generations (the existence and scope of which I do not discuss here). If they cannot be so discharged, then the appropriate powers would be delegated to the state under the public-goods component of territorial rights. The individualist account remains untouched.

X. A Note on Original Appropriation

The view defended here assumes that individuals can legitimately acquire land. The problem of original appropriation is complex and I cannot here do it the justice it deserves. ^{Footnote 78} However, I am content with a modest claim: a story that relies on original individual appropriation is more plausible than a story that relies on collective appropriation.

Consider, for example, a standard objection against original appropriation: that the claimant fails to satisfy the Lockean Proviso, that is, the requirement that he “leave enough and as good for others.” ^{Footnote 79} As David Schmidtz has shown, the objection that individual appropriation worsens the position of others overlooks the dynamic effects of property rights and the essential function that these rights have in internalizing costs and benefits. ^{Footnote 80} A necessary condition of wealth creation is the demarcation of property rights and the establishment of the basic incidents of property (especially exclusive possession, use, and transfer). It follows that original appropriation is not only permissible, but morally required. The repeated acts of staking property claims are a precondition for the generation of benefits that secure human survival and prosperity. If the earth’s resources were to remain unappropriated, people would face a massive tragedy of the commons, and soon there would be no resources to appropriate.

This reply to Lockean Proviso skeptics is almost entirely inapplicable to collective entities. Collective entities are aggregations of individuals. If the collective entity has a government, that government will perform the acts of appropriation. It is hard to see why that act, without more, will have the dynamic effects that Schmidtz describes. If the government who appropriates the territory establishes extractive institutions — for example, a system of collective property where public officials get to say who produces what and who works where — then predictably the society will be impoverished. Only individuals can internalize the costs of their decisions, and so only individual appropriation triggers the dynamic effects that spawn material growth.

Moreover, if, as many contend, the earth’s resources were originally owned in common (a question I do not address here,) then there is no more justification for a group to stake a claim over a territory and exclude all others than there is for an individual to stake a claim over a tract of land and exclude others. If anything, the group’s claim is more devastating to outsiders, because it affects a greater portion of the earth’s surface. Someone who opposes individual appropriation on the grounds that it worsens the position of others cannot consistently defend collective appropriation. If original appropriation is illegitimate, it is illegitimate for both individuals and groups. And if no one is entitled to appropriate, then we must brace ourselves for the predictable devastation of the tragedy of the commons and the general impoverishment that will result from the lack of property rights.

XI. Conclusion: The Individualist Theory of Territory as a Regulative Ideal

If I am correct, no actual state has any territorial rights. The reason is that no plausible theory of consent can justify the powers that states claim over us. No state wields delegated power — over land or over persons. There are no consensual states in the present world, and therefore there are no legitimate states. States do not have a right to rule; indeed, that is why they are in the coercion business. It is of course easy to deny the right to rule to particularly odious regimes. The North Korean state, a criminal enterprise, has no valid authority over any person, nor over the territory that is North Korea. Only North Korean property owners do. And only an eventual rights-respecting North Korean government will be able to wield delegated jurisdictional powers over land. But unfortunately, the better states lack territorial rights as well. If the United States unjustly dispossessed legitimate owners, then the United States lacks territorial rights.

Despite this grim conclusion, the theory of territory I defend here can serve two important evaluative functions with respect to the real world. First, the exercises of jurisdictional land powers consistent with Lockean delegation (even if such powers are not actually delegated) deserve respect all things considered. For example, a judicial decision settling a land controversy deserves respect, because adjudicating land disputes is the kind of jurisdictional function that persons would delegate to the state. Similarly, state action that enforces the criminal law is in principle worthy of respect because it is one of the functions that persons would delegate to the state. And the same reasoning can be extended to evaluate national defense and other typical functions of the state.

Second, the individualist theory of territory can serve as a regulative ideal against which to judge how good or bad a state is. The more the state respects the subjects’ moral rights, including property rights, the better the state is. States that expropriate their subjects in a way not licensed by justice are not only unjust states. They are bad states, in the sense that they place obstacles in the creation of wealth, thus aggravating poverty and misallocating resources. Generalizing, we can say that while there are no legitimate states (because the only legitimate states would be voluntary states) there are better and worse states. The individualist theory of political power over persons and land is the ideal against which we should evaluate current states. Although no current states meet that ideal, some are closer than others.

In this essay I attempt to rescue the individualist tradition in philosophy and economics and apply it to international relations. A theory of territory should not extol state power, but rather vindicate the rights of individuals and the pursuit of personal projects conducive to human flourishing and prosperity. This requires a radical revision of received wisdom.