Political philosophy has witnessed a recent surge of interest interritorial rights—what they are, who holds them, what justifiesthem—as well as in a broader theory of territorial justice,which situates said rights in an account of distributive justice,thereby addressing the scope of the rights. This interest is hardlysurprising. The state is not simply a membership organization: itexercises authority over a geographical domain and this naturallygives rise to questions about how state authority over place can bejustified, and how different claims to this authority can be assessedfairly. Moreover, many of the most pressing questions facing thecontemporary interstate order are connected toterritory—questions such as how to resolve disputes where morethan one state makes claims to the same territory, how to drawboundaries in the case of secession or when borders are contested.Indeed, many of the major issues of the day—such as migration,resources and self-defense—have important territorialdimensions, so that a complete normative understanding of these issuesrequires a normative theory of territory.

What is perhaps more surprising is that territory has been relativelyneglected. Until recently, most debates in political philosophy havefocused on the rights and duties of citizens toward the state, andvice versa, but relatively little was written about how to justify, orconceptualize, the territory of the state. This neglect was notconfined to political philosophy: it was a feature of all threetraditions that were influential in thinking about the state. Ininternational law, the territorial dimension of the state was takenfor granted. The 1933 Montevideo Convention on the Rights and Dutiesof Statesdefines states as territorial entities, whichsuggests that the first order of business is to explain, theorize andjustify states and that the territory of the state can be simplyassumed. This assumption was also made by political scientists,writing in both the comparative politics and international relationstraditions. They offered explanatory and descriptive theories of thestate but paid scant attention to the spatial element, largelyassuming that the territory of the state is the product of history andpast coercion which can be taken for granted as a basic feature of thestate. One might have thought that normative political philosopherswould be more interested in the question of how political authoritycan be wielded over territories and not just not over persons.However, political philosophers were also guilty of this blind spot,in part perhaps because of the extraordinary influence of Rawls incontemporary political philosophy. Rawls’s task inA Theoryof Justice was to theorize the domestic justice of the basicstructure of the state, and he therefore assumed,arguendo,that “political society is closed” (Rawls 1971: 4), bywhich he meant that we should conceive of it in the first instance asa self-sufficient entity that we happen to be in and cannot leave. Hethen tackled the question of the legitimacy of the statevis-à-vis the international order at a later stage of theanalysis (Rawls 1999). The closed society assumption obscured manyimportant issues from view, and has meant that political philosopherswho adopt this methodological strategy have nothing to say in a rangeof cases that are very important for resolving questions of importanceto inter-state peace and stability, as discussed above.

• 1. Conceptual Issues
  • 1.1 What is territory?
  • 1.2 Territorial rights
  • 1.3 What is a theory of territorial justice?
• 2. Theories of Territory in Historical Perspective
  • 2.1 Natural law theories: Hugo Grotius (1583–1645) and Samuel Pufendorf (1632–1694)
  • 2.2 Consent and property theories: John Locke (1632–1704).
  • 2.3 Justice theories: Immanuel Kant (1724–1804)
• 3. Contemporary Theories of Territory
  • 3.1 Natural law theories updated
  • 3.2 Consent and Natural Property Theories
  • 3.3 Justice accounts
  • 3.4 Nationalist theories
  • 3.5 Ethnogeographic Group Theory of territory
  • 3.6 Self-determination theories
• 4. Future Directions
• Bibliography
  • Select Bibliography
• Academic Tools
• Other Internet Resources
• Related Entries

1. Conceptual Issues

1.1 What is territory?

One common preliminary distinction is between territory and land. Landis that part of the earth’s surface that is not covered bywater. Territory is a political and geographic concept. It refers tothe spatial area of jurisdictional authority. States have territory:it is the geographical extent of their jurisdictional authority. Thisusually covers the land within the borders of the state, but it canand does in the modern world extend off shore into the sea, below theearth’s surface (to control resources) and above theearth’s surface, as most states also claim jurisdiction overtheir air space. Territory, then, is not co-extensive with land,although all (or almost all) land on this planet is divided up intodifferent jurisdictional units, or territories. The critical geographyliterature on ‘territory’ tends to primarily conceive of‘territory’ as a geographical area that is controlled, orover which power is exercised (Elden 2013); whereas the politicalphilosophy literature tends to be more interested in territory as thedomain of legitimate jurisdictional control and associated rights(Miller 2012; Nine 2012; Banai 2014; Moore 2015; Angeli 2015; Stilz2019). Territory is also distinct from property as will be explainedbelow.

1.2 Territorial rights

The political philosophy literature on territory makes use of the ideaof territorial rights. This is often done in a way that is analogousto how we think about property rights—viz., as a bundle ofdifferent liberties, powers, immunities, and claims, which, when heldtogether with respect to a material thing, constitutes what we mean byproperty rights. In the case of property, the fullest form ofnormative control over that thing was what Honoré (1961) called‘full liberal ownership’, but he also recognized thatproperty rights can be parcelled out and held by different agents andthat each right within the bundle may have its own, separatejustification.

In the case of territorial rights, the central and fundamental rightis the right of jurisdiction, which is the right to create and enforcelaws within the domain in question. However, there are other relatedrights (powers, immunities) related to jurisdiction, which we alsolump together as part of ‘territorial right’. It includesthe power to make changes to the territory’s status, for exampleby incorporating it into some larger entity such as the EU, and thepower to create sub-jurisdictional units of a federal system. Itincludes the right to do business in the world as a legalentity—to make war and peace, to conclude treaties, and enterinto alliances. And it includes rights against other similar entitiesnot to be interfered with in the exercise of this power.

Territorial rights are also normally understood to include otherrights beyond jurisdiction and the associated claims, powers andimmunities: rights to control resources within the geographical area,rights to control borders and regulate the flow of people and goodsacross them and rights to defend the territory against outsideaggression (Simmons 2001; Miller 2012). Although these are oftenassumed to be inherent in the very idea of a sovereign state, we canenvisage entities that have some rights of jurisdiction but lack otherelements in the territorial bundle. Consider the members of theEuropean Union which have significant jurisdictional powers at themember state level, but no border checks between member states in theSchengen 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 controlsbetween provinces. Thus, each element in the bundle that make up whatwe might loosely call ‘territorial rights’ needs to beexamined, related to other elements, and justified, if we are to havea full normative theory of territorial rights or territorialjustice.

The structural similarities between property rights and territorialrights should not blind us to their differences. Territory is not thesame as property, because it has, as its primary element, a right ofjurisdiction. Some of the rights that are included in rights overterritory look as though they’re concerned with the claims toregulate and control a particular territory, which we think of asprimarily rights of jurisdiction; and other rights are much moreproperty-like, because they involve exclusionary claims over a region,and claims about how to use resources and land located within theboundaries of the state. However, these rights are mainly conceived ofas secondary to that of jurisdiction, and of meta-jurisdictionalpowers such as the power to secede from a state or merge with anotherone.

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

1.3 What is a theory of territorial justice?

A theory of territorial justice has to explain and justify rights overterritory. It has to explain what rights there are, the limits ofthese rights, and who holds these rights. In doing so, it has toexamine and justify the relationship between three different elements:the people (or individual persons); land; and the regime, governmentor state. There are different ways in which these elements are relatedand different justificatory values may undergird these differentconfigurations, but all extant theories offer an argument that relatesthese different elements and justifies their particularconfigurations.

The main differences among these theories tend to track the followingdimensions: (1) the putative territorial right-holder; (2) the valuethat explains and justifies rights over territory and which limits thescope of each of these rights; and (3) the argument for connectingboth the justifying value and the rights to the particulargeographical area. Let’s take these different dimensions inorder. The first key difference among rival theories concerns theirconception of the appropriate (or justified) territorial right-holder:is it the nation? the people? or the state? They also offer differentaccounts of the underlying value that justifies these rights: the maincontenders are peace and stability; justice; and self-determination.The underlying value also affects the scope of the rights beingclaimed, and indeed which set of rights in the bundle of rights can beso justified. A theory of territory has to explain how we candemarcate the geographical domain that the rights range over. It isnot sufficient to explain in general that states need to beterritorial in order to realize whatever value is supposed to justifythem. The theory should explain which particular bits of territory areconnected to which states. This is called in the literature ‘theparticularity question’. To address this question, the theoryneeds an argument that relates people and land to the state in waysthat justify rights overparticular bits of territory, andthis is a difficult problem for one of the most prominent theories ofterritory—justice theories.

2. Theories of Territory in Historical Perspective

There are a number of historical theories which have presentedarguments about territory that have been relatively neglected in thescholarship on these theories, which has tended to focus on otheraspects of their argument. Three key traditions are the natural lawtradition, in particular Grotius and Pufendorf; the social contracttradition, and particularly Locke, who offered a theory of politicalobligation and a justification for limited constitutional government;and the justice tradition, associated with Kant, which identifies thestate with the achievement of justice. None of these offered acomplete theory of territory, but they did, in the course oftheorizing the state and the international order, connect territory incrucial ways to their overall argument, such that it is extremelyuseful to focus on how they conceptualized territory, how they arguedfor it, and how it was related to other key elements in theirpolitical theory. Contemporary theories, which will be discussed insect. 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. Theyboth assumed that natural laws, which can be rationally apprehended,apply to all human beings, are invariable across time and space, andconstitute the fundamental bonds of human society. Both theorists maderoom for conventional law but argued that these were constrained bythe precepts of what both referred to as ‘rightreason’.

Writing in a period of initial imperial expansion and discovery,Grotius inMare Liberum (1609) defended the idea of commonownership of resources. By the term ‘common ownership’,Grotius meant that God granted all humans a right (a liberty right) touse objects or resources in the world to satisfy basic needs. Inrelation to the ocean, Grotius argued that no state or common powercould claim exclusive dominion over it because the sea is notconfinable within fixed boundaries and also is not amenable totransformation through human labor and so not an appropriate object ofproperty rights. For these reasons, it should remain a relativelyundisturbed commons; human beings would be free to travel on it andengage in mutual exchange, and to fish (the resources of the seabeing, in his view, almost limitless). Although this view waschallenged in his own day by John Selden inMare Clausum(1635), who pointed out that geographical coordinates could enclosethe sea, and in our own day by the recognition that the resources ofthe ocean and the seabed are not limitless, the idea of internationalrights over a global commons was very influential in the creation ofmodern international law, and was also important to the development ofsea empires shortly thereafter (see Armitage 2012: 54–56). Thisidea 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 naturalright to use objects that are held in common, but this right lackssome of the incidents that we associate with ownership proper. Thereis no right to exclude or to have a thing when it was no longer inone’s possession. He then elaborates a genealogical argument,according to which, in the early period of human existence, we livedin a simpler state where “the great extent of land wassufficient for the use of all occupants, as yet but few in number,without their incommoding each other” (GrotiusRWP: II,2, ii); but, as population increased in number and spread throughoutthe world, it didn’t make sense to have a common right inobjects many miles distant from where people live (GrotiusRWP: II, 2, ii). Grotius appealed to the idea of consent,capaciously understood to include the gradual establishment of rulesof acquisition, use and transfer to explain and defend different kindsof government systems—democracies, oligarchies, even absolutemonarchies. The source of the state’s authority stems from thetransferability of this right to a sovereign authority, which, heargued, represents an implicit exchange for a peaceful and stablesociety. He also argues that civil authority can also be acquiredthrough conquest (GrotiusRWP: II.3.viii), although thisaspect of his theory is not emphasized by contemporary scholars.

Most criticisms of Grotius’ theory focus on his defense ofabsolute sovereignty, but the focus here is on his account ofgroup-based possession implicit in his justification for territory.The central difficulty is that Grotius’s account of possessiondoes not have a scope limitation. He only requires incomers to submitto the sovereign (GrotiusDJB II,2, xvii). This suggests thathe envisions state jurisdiction as encompassing large areas that arenot possessed or occupied in the normal sense, and some might arguethat it is counter-intuitive that a single group should be able toclaim sovereignty over vast tracts of land, as the European empiresdid in the ‘Age of Discovery’, and require that allpeoples and migrants simply submit totheir rules.

The scope limitation for sovereignty authority is described moreclearly in Pufendorf’s natural law theory. Like Grotius, whosepolitical philosophy he was attempting to defend, Pufendorf(DMC) believed in natural law and also laws derived in moreconventional ways—such as civil laws, or laws between nations.He builds on Grotius’ account in two ways. First, Pufendorfrightly pointed out that the ocean could be subject to the exercise ofjurisdiction. Second, and more significantly, his account provides theconceptual resources to recognize not only collective title, but itincorporates the idea of fair rules and fair terms in his account ofthe establishment of property regimes. Building on Grotius’sright of necessity, and other moral rights (to passage, settlement,commerce, use of water, rights of refuge) outlined by Grotius, all ofwhich suggest that some sharing would be required of an appropriator,Pufendorf argued that the state of nature was a state of socialliving. Our rights to the resources of the commons were rights held ina negative community in the sense that the natural world was equallyopen to everyone, but that, in order to appropriate land or property,one needed the consent of other co-owners. Pufendorf did not specifywhat kind of consent ought to count. However, he suggests that itwould take the form of collective property or property held bycommunities, and that, from this, individual claims could be derived.Cara Nine (2019) has argued that his account has the conceptualresources to explain the limits of the state’s territorialdomain in a non-arbitrary way, because he limits both individual andcollective title by invoking moral principles such as non-dominationand 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. His argument proceedsby first defending the idea of natural rights to property, which hegrounded in the fundamental importance of private holdings to theexercise of liberty, i.e., to the ability of persons to engage inindividual or collective projects. He argued that individuals canacquire property in land and other external material objects by‘mixing their labor’ with it and thereby improving it(LockeST: V,27). He then argues that the difficulties thatwould be attendant on such an arrangement could only be solved bycreating a jurisdictional authority to govern such people and protecttheir rights. Individuals in the state of nature, or looselyassociated persons (e.g., families), many of whom have property inland, would, Locke argued, combine together to form a state to protecttheir rights. They would consent to majority rule, to obedience to andsupport for law (within the limits of natural law) and, importantly,consent to incorporate one’s rightful landholdings into theterritory over which the government has jurisdiction. Locke connectsthe creation of authority over persons and authority over territory inthis way:

By the same Act therefore, whereby any one unite his Person, which wasbefore free, to any Commonwealth; by the same he unites hisPossessions, which were before free, to it also; and they become, bothof them, Person and Possession, subject to the Government and Dominionof the Commonwealth, as long as it hath a being. (LockeST:VIII, 120)

There are two justifications for the state: one is functional, sincethe creation of political authority is necessary to solve thedeficiencies of the state of nature at least as regards the protectionof people’s natural rights; and the other is consent, as peoplein the state of nature are imagined to agree to a political order, anact which reconciles man’s natural liberty with subjection tocommon authority. The natural right to property, on this argument, isconceived of as prior to the state, and an essential building blockfor justifying the domain of state jurisdiction. By linking people andland together prior to the creation of political authority,Locke’s theory can explain the domain of jurisdictionalauthority. The boundaries of the state are coextensive with theboundaries of property that individual property holders incorporatedwhen political society was created.

Although this theory is able to explain how there might be legitimatejurisdictional authority over various chunks of land, it also seemslikely that these would be perforated by land held by dissenters, orat the least non-continuous boundaries. This means that the theory isof limited usefulness in justifying the contiguous jurisdictionalauthority of territorial states, where the writ of the law applies toall those contained within the external boundaries but there is noun-owned or un-consented interior land. In other words, this argumentdoes not justify territorial rightas we know it, whereterritorial rights and especially jurisdictional authority areconsistently or evenly applied across the territory. This is not aflaw in itself. We shouldn’t think of normative theory as intenton justifying contemporary practices. However, it is a problem in sofar as that does not seem compatible with the performance of functionsrelating to the exercise of jurisdictional authority, andfunctionality was also an important element in Locke’s argumentfor why individuals would seek to create a political order that hasauthority over them in the first place and can adequately protecttheir natural rights.

2.3 Justice theories: Immanuel Kant (1724–1804)

In some respects, Kantian arguments for territorial rights are theexact reverse of Locke’s. Kant offers a general justification ofthe state as necessary to the pursuit of justice, but then, havingshown that the state is necessary to justice, this argument hasdifficulty in explaining which bits of territory each state ought tohave.

Kant first defends the right to occupy and appropriate objects asimplicit in, and justified by, the exercise of individual freedom. Hethen points out that removing things from common use prevents otherpeople from enjoying the object in question, and this unilateralexercise of one’s freedom is therefore incompatible with theexercise of other people’s freedom. The only way out of thisdilemma is through the multilateral recognition of ‘rights ofproperty’ (by which he means agreement on the obligation torespect the acquisition, transfer and use of objects in the externalworld) and institutions of justice to set and enforce thesemultilateral rights. This provides an argument for why people who livein close proximity to one another, and therefore cannot avoidinteracting, are morally obliged to enter the civil condition andacknowledge a political authority whose coercive law can guaranteetheir property rights. On Kant’s account, everyone in the stateof nature has an obligation to leave a ‘a statedevoid ofjustice’ and replace it with ‘a rightfulcondition’.

This theory successfully justifies the exercise of jurisdictionalauthority—indeed, the argument that we are subject to authoritybecause it is required by justice is probably the most compellingjustification of state power on offer. However, there are difficultiesfor this theory in explaining and justifying why that authority isheld over particular areas of the earth. It is a short step from thistype of argument to appeal to a principle of proximity to mark out adomain in which people are unavoidably interacting with one another,and then explain why people who are proximate must be under the sameauthority, because likely to fall into disputes (Waldron 2009).However, since there are many possible domains of possibleinteraction, the argument does not tell us which territorial unit weshould join in cases where we stand midway between one group ofproximate people who are in the process of creating stateA,and a second group who are creating stateB; and some membersof our group seek to create stateC (Miller 2011). It’sclear that we should join a political community, so that we are not ina lawless condition, and indeed it appears that all the contendersmight be justified in compelling us to join their political community,but it is indeterminate about which political community ought toexercise rightful authority over us. Kant’s argument avoidsdiscussing this dilemma only by appealing to considerations which falloutside of the Kantian theory itself: he points out that people tend,as an empirical fact, to be naturally grouped along linguistic orreligious lines, and that membership in these cultural groups helps todefine particular jurisdictional domains (KantPP: I, firstsupp., para. 2). This empirical assumption helps Kant to escape whatmight appear to be the cosmopolitan logic of his account: withoutappeal to that purely contingent fact of people’s preference toassociate politically with others who are religiously or culturallysimilar, it seems that the logic of his account is universal. AlthoughKant himself offered various reasons for opposing a world state (KantMM: II; 53–61) it is not clear that these reasons areconsistent with the logic of his theory.

One could, of course, accept a universalist, Kantian account of stateauthority, but supplement that account with subsidiary principles,which help to define the boundaries of particular authorities. But ifthose subsidiary principles are more than principles of convenience oraffirmations of the status quo, both of which are problematic, then itmeans that Kant’s theory can’t be a stand-alone successfulaccount, but has to be hybridized with another account. This isbecause Kant’s theory provides a successful justification forstate authority but needs another account to justify eachstate’s particular territory.

3. Contemporary Theories of Territory

Most contemporary theorists of territory build on the historicalarguments of Grotius and Pufendorf, Locke and Kant, or are a hybrid ofthese historical accounts. Some—like Risse in relation toGrotius, Stilz in relation to Grotius and Kant, Nine in relation toPufendorf and Locke, Simmons in relation to Locke, and Waldron and Ypiin relation to Kant—are explicitly based on earlier theorists,and offer ways to improve some of the difficulties that beset theoriginal account. Others—like Miller in relation to nationalisttheory—offer a philosophical version of a popular nationalistbelief in relation to homelands, which has historical roots in thenineteenth century, but lacked a clear philosophical defense. Somecontemporary accounts that ground territorial rights onself-determination and peoplehood, such as Moore’s, though theybuild on previous work, attempting to identify a territorialright-holder and argue for the justificatory value undergirdingterritorial rights in a way that avoids some of the problems ofearlier theorists.

3.1 Natural law theories updated

As noted above, one of the key problems with Grotius’s accountof territory is that it failed to explain the scope of the state.Jurisdiction was based on possession but possession was defineddescriptively: a group could come to possess land through force orthrough public claims, but it was not clear how the scope or extent ofthe possession was defined normatively or how it could be limited. Oneof the key contemporary defenders of Grotius—MathiasRisse—attempts to update Grotius’s account by developing aprinciple or set of principles designed to address this problem.

In a series of articles with Michael Blake and a bookGlobalJustice and Common Ownership of the Earth, Risse argues that thekey Grotian insight is that our institutional practices should reflectthe “core idea” of common ownership, which

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

He then addresses the key deficiency in Grotius’ theory ofterritory: he proposes a scope limitation on possession, which limitsthe amount possessed by requiring that it be justified from a globalperspective. Risse’s distinctive proposal is a proportionalityprinciple to explain how much each group is entitled to. Grotiushimself did not endorse proportionality, but he did believe in commonownership, combined with a right of necessity, which Risse saysimplies the following disjunctive right: each individual has the right

either to use (in the narrow sense) resources and spaces to satisfyone’s basic needs or else to live in a society that does notdeny one the opportunity to satisfy one’s basic needs in ways inwhich it otherwise could have been done through original resources andspaces. (Risse 2014: 112)

The idea is that potential migrants can be excluded from states orareas of the world where people are over-using (or using at theaverage level) the resources, but they cannot be excluded from theareas where the resources are ‘under-used’. This brings ina rather technical discussion of what constitutes‘over-use’ and ‘under-use’, but the mostconsistent formulation is that one is ‘underusing’ aterritory when the ratio of a state’s population to the value ofits 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 withthe proportionality principle, which is that it is insensitive to themyriad ways in which people interact with place, which ought to berelevant to a theory of territorial justice (Kolers 2009, 2012; Moore2012). Risse’s proportionality principle, which is centralto his account of common ownership,is biased towards intensive usesrelative to population. It assumes that we view all things in thenatural world from the same instrumental perspective, such that theideas of trade-offs, compensation and use-value are obviouslyapplicable and neutral terms to use. What is needed, critics allege,is a set of principles to adjudicate territorial claims that betterrespect cultural variability with respect to land.

Cara Nine has also updated the natural law tradition, focusing onSamuel Pufendorf’s theory. In a series of well-known articlesand her 2012 book, she relied on a particular interpretation ofLockean arguments, but more recently she has argued thatPufendorf’s natural law/ common ownership argument isinstructive for our thinking about what we now think of as the globalcommons. She examines the ocean as a common pool resource and the testcase of rival claims in Arctic waters (Nine 2019). She argues thatPufendorf’s appeal to conventional agreements and a system ofcollective dominium may be the best way for assessing whether there isreal benefit from exclusive use of an object (thereby potentiallygiving rise to property claims) and the role of necessity inadjudicating between rival claims. Nine argues that Pufendorf’smore social, conventional and collective account of our relations tothe world contains a discussion of inherent limits of jurisdictionalcontrol. The claims to common pool resources, are, she argues, limitedin three ways: the need to avoid domination among claimants, thussetting the stage for a deliberation amongst claimants from a positionof equal status; avoiding greed,; and avoiding taking what is alreadyused by others, which implies a recognition of the needs, commitmentsand expectations of others (see also Mancilla 2012). These discussionsreveal the rich nuances of some exponents of that tradition and theway that the concepts they deployed can be serviceable to contemporaryproblems.

3.2 Consent and Natural Property Theories

There are many internal disputes amongst contemporary Lockean-inspiredtheorists concerning the appropriate understanding of Locke’sargument and the extent to which Locke is vulnerable to some of thestandard objections. An objection was raised earlier that might becalled the Swiss cheese objection: it seems unlikely that a consentargument can justify the contiguous territorial control that we mightexpect of a state. Some Lockean theorists, such as Hillel Steiner(1996: 144), are happy enough to accept this as an implication of aLockean theory, but deny that it is a problem, or anyway not a fatalproblem. A. John Simmons, however, has argued that the functionalstrand in Locke’s theory does important work, so that,

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

On his view, Locke’s argument has the conceptual resources tolimit the ability of property-owners to exit or sell their land topeople who do not accept the sovereign’s jurisdictionalauthority, and to ensure that all subsequent holders of the land willbe bound by the obligations of state membership. In this way, Simmonscontends, the Lockean argument can address two of the most importantsources of non-contiguity.

There is however a rival interpretation of Locke’s theory,advanced by Bas van der Vosssen (2015), according to whichstates’ external boundaries are conceived of as the product ofconsent amongst sovereign authorities themselves, thus developing atwo-stage argument for territorial rights. It is, however, not clearwhether this interpretation can be easily reconciled with thedistinctive feature of Locke’s account, which is the idea ofproperty-holders consenting to create territory.

Cara Nine’s early articles and her 2012 bookGlobal Justiceand Territory also make use of Locke’s theory to explainhow a state can gain entitlement to a territory. She argues that astate improves its territory, adding value to the area via theenforcement of jurisdictional rules about property, contract, and soon. This use of Locke to justify territory by a corporate agent iscoherent but it is purely retrospective: it tells us that a state canbe entitled to an area on the basis of what it has done, but since thestate excludes other potential claimants it cannot really show that ithas done more than other contending territorial agents would havedone, nor does it offer the resources to decide between two contendinggroups, each aspiring to create a state in the region (and therebyengage in the value-enhancing jurisdictional activity). Nine’srecent work on Pufendorf and her emphasis on conventional agreementsunder certain conditions is focused on addressing that problem.

A. John Simmons, in his bookBoundaries of Authority (2016),offers a more self-consciously Lockean theory of territory. Simmonscomplains that all existing territorial theories—nationalist,self-determination theories, justice theories—tend to accept aversion of Waldron’s (1992) supersession thesis, which is theview that historic rights (to land) weaken over time. Simmons rejectsthis view, arguing, like Locke, that all political authority, to berightful, has to be grounded in consent. He holds that indigenouspeople were doubly wronged, because not only did they not consent tothe state, but their collectively owned property was also wrongfullyannexed. This line of argument reveals a significant differencebetween Lockeans (who have an historical argument about justice) andother theorists. Lockeans tend to think that rights inthings—including rights in land—are heritable and do notdisappear as the specific right-holders and wrongdoers die off, orwhen the property that they had is wrongfully taken from them.

However, it could be argued that Simmons’ position iscounter-intuitive, because we often do feel that the passage of timematters to the existence of rights. After all, if the interests thatgrounded the right no longer apply (due to changes wrought by thepassage of time), then it seems that this will affect the right (whichwas designed to protect said interest). It’s hard to avoid thisconclusion if we think of rights as protecting human interests, someof which may be relational or contingent. A deeper problem, to whichthis point gives rise, is that Simmons presents his Lockeanism as“an ideal theory”. However, almost everything that we areinterested in—wrongful political incorporation, theft of landand then subsequent transfer—are instances of non-ideal theory,and it is not fully clear how Simmons’ Lockean insights aremeant to apply in the real world. It does suggest that we need aprocess of apology or rectification, but Simmons does not elaborate onthe form that rectification in the present should take, and how itmight be reconciled with the claims, if any, of descendants ofwrongful settlers, or of settler states.

3.3 Justice accounts

There are many theorists of justice and political obligation who adopta Kantian view of the justification of the state, but fewer who try toapply this theory to justify territory. A fairly typical view isexpressed by Allen Buchanan who argues that “the chief moralpurpose of endowing an entity with political power is to achievejustice…” (Buchanan 2003a: 247; Waldron 2009). He thenclarifies that justice involves acceptance of human rights, dueprocess and the rule of law. This basically Kantian view is veryhelpful for explaining why we need states, but, like Kant’s ownaccount, has difficulty explaining where the state ought to wield thatpower (the particularity problem). This in turn gives rise to threedistinct, but inter-related, problems, and manoeuvres to deal withthat problem.

Because Kantian theory has no internal mechanism to address theparticularity problem, it accords rights over territoryretrospectively, after some group or agent has succeeded in gainingpolitical power. This seems unacceptable for a theory that, in otherways, is guided by the importance of justice and the rule of law, anddeeply sub-optimal for a theory of territory, which ought to be ableto adduce normative principles to adjudicate cases where more than onepolitical community has claims to the same territory.

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

A third problem, which is closely related to the two difficultiesabove, is that most theorists who adopt this line of argument tend todistinguish full justice from legitimacy, and so confer territorialrights on less-than-ideally just states. This means that while thetheory seems to set the bar quite high in terms of the justificationof the state, it is low when it is applied to actual states,especially when we examine the historical trajectory that enabled thestate to gain rights over that geographical space. Many states haveoriginated in deeply unjust practices: they gained territory throughconquest, trickery and other forms of brutality. This sits uneasilywith the overall emphasis on justice in the theory. It also introducesa problematic, because very status quo-orientedrealpolitikelement into the theory, and so tends to justify existing territorialorders, including ones that gained their territory through conquestand deceit. This may be a problem in Lea Ypi’s justice basedaccount (Ypi 2014), which contends that states are only“provisionally” as opposed to “conclusively”justified until we have an international agreement on existingterritory. But since having a universal agreement on territory is veryunlikely in the medium to long-term future, this amounts to accepting(albeit with the adjective ‘provisionally’) whateverterritorial entities there currently are, and treating these as‘provisionally’ rightful.

3.4 Nationalist theories

Nationalism has been identified as a relatively modernphenomenon—with some theorists pinpointing its rise with theFrench Revolution, and the associated principle of self-determination;and others with the rise of print media, which created a community ofpeople who shared similar political values and aspirations andidentities, but were not related in a face-to-face way (Anderson1983). Nationalism, even in its earliest versions, appealed to theidea of a ‘national homeland’, but this was not defendedphilosophically, nor grounded in terms of any particular values. Morerecently, several theorists (Miller 2007; Meisels 2009; Gans 2003)have sought to defend liberal nationalism, which involves articulatingan account of how a nation can come to have a particular territory.The structure of this argument—identifying a link between theright-holding group (the nation) and the land—has a Lockeanstructure, but the right-holder is not the individual person, butinstead 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 aparticular territory, and (5) marked off from other communities by itsdistinct public culture. (Miller 1995: 27)

The connection to land isdefinitional of a nation. Therelationship between people and land is not simply assumed: rather, anaccount is given of the inter-relationship between group culture andland. People who inhabit a certain territory shape the land that theyoccupy; their culture is mixed with the physical characteristics ofthe land, and the physical characteristics shape the culture that theydevelop. Land has value for the people, both objective value, becausethey improve it in various ways, building places of religious worshipand developing cities and irrigating farmland; and subjective value,because the land comes to have symbolic significance for them, as theybury their dead in certain places, build monuments to significanthistoric achievements or losses, and so on. (Miller 2007:217–218). In this way, a group comes to have a specialrelationship to land that they occupy, and can make a better claim tothat land than any other group. This argument does not yet justifyterritorial rights, however. This is established via a furtherargument that in order to maintain value (subjective and objective) inland, the people need to have jurisdictional authority over it (Miller2012: 263).

This argument has no difficulty explaining the wrong of conquest (evenif the conquering state is more effective or objectively just than thepolitical order that it replaces), since the link between the groupand the land is established prior to the political order. Thereforeany conquest of the land represents a violation of the interests,subjective and objective, of group members. Although the contours orprecise boundaries of the nation are somewhat permeable, this type ofargument is able to identify a group and then define the land to whichthe group is entitled. It is not clear how exactly we are toadjudicate cases where two groups are subjectively and objectivelyattached to the same territory—as with Jerusalem—althoughMiller seems to think that a comparative assessment of the claims willbe able to yield conclusions in most cases, and in some cases willendorse a shared sovereignty arrangement (Miller 2014).

One key problem with this theory is that the territorial right-holderis conceived of as a ‘nation’, and some have argued thatthis is problematic because potentially exclusionary. Proponents ofthis argument endorse a liberal form of nationalism, so conceive ofthe culture as a thin, public culture potentially inclusive of manydifferent groups in society. Nevertheless, one might think that anyreference to a cultural nation suffers from both over-inclusion andunder-inclusion. The over-inclusion problem is that the actual‘cultural mixing’ which is supposed to explain rights toland could also apply to cultural groups that are not nations, such asneighborhood cultures or sub-cultures in society. Do they not also mixtheir culture with the geographical area and so have right to protectthe value so created? Another sort of problem is that any reference to‘cultural nation’ might seem to raise the problem ofessentialism, which is that it rests on particular (essential)features as necessary or important to the culture or nation, whichthen has the effect of marginalizing people who do not share in thatfeature (Moore 2019b). Miller is careful to offer a Wittgensteinianfamily resemblance conception of nations, which is designed to addressthe problem of essentialism by not specifying that any particularfeature or value is necessary, but one may wonder whether thisconceptual 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 bookLand, Conflict and Justice, putsforward a theory of territory that has the same structure asnationalist theories, in linking (unstructured) groups with land firstand then describing the state later, but he identifies the territorialright-holding group as an ‘ethnogeographic community’rather than a nation. By this term, Kolers means a group of peoplethat (i) share a specific social ontology of land, and he clarifiesthat this means “a culturally specific conception of land, whatland is, what about it is valuable” (Kolers 2009: 3–4) and(ii) a specific material relationship with land, so that the communityin question is characterized by pervasive material interaction betweenthe land and the community. The two criteria—one subjective, theother objective—are somewhat different, since the former seemsto include cultural significance and meanings, whereas the lattertracks economic and functional considerations. However, as Kolersnotes, there are reasons to believe that our ideas about land oftenreflect our material interests and material relationship with it. Inhis examples, most cases exemplify both conditions. As these can comeapart, we could suppose that they are jointly necessary and sufficientconditions.

Kolers’ theory appeals to the notion of ‘plenitude’to explain how a group can be attached to an area, and this seems likeit ought to be able to adjudicate rival claims, and potentially limitthe scope of territorial rights. Plenitude, for Kolers, involves (1)internal diversity, (2) external distinctness, each from theperspective of the claimants, and (3) feasible plans for maintainingthese in perpetuity (Kolers 2009: 115). Plenitude is claimed to bevalue-neutral in the sense that it does not rest on a normativelycontested theory of appropriate use, and is compatible with anecologically sensitive commitment to keeping some areas in theirnatural state without reverting to common ownership in the sense of alibertarian free-for-all.

However, since ‘plenitude’ has a number of differentdimensions, it’s not clear that it represents an authoritativemechanism to decide between rival claims. More than one group can makeclaims on those bases to the same piece of land. What if one grouprecognizes its internal diversity and a different group its externaldifferentiation? What if neither has feasible plans for maintainingthem in perpetuity? Since this is not a single criterion at all, butembodies at least three different requirements, it’s possiblethat all could be met by more than one group, or that some elementscould be met different groups. Unfortunately, Kolers does not indicatewhat to do in this situation, which means that Kolers’ theory isless precise in addressing rival claims and conflict than it initiallyseems to be.

3.6 Self-determination theories

Self-determination theories of territory have the same overall shapeas nationalist theories, but they seek to avoid the difficulties ofassuming culturally homogeneous nations by ascribing territorialrights to a ‘people’ understood as a politically-organizedrather than cultural group. Anna Stilz (2019: 10) argues that heraccount is built on three pillars: a property-like right of occupancy;the value of ‘basic justice’, conceptualized in Kantianterms of the requirements of an ‘omnilateral will’; andthe 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; andthat the group must “legitimately occupy” the territory.Although Moore does not emphasize basic justice as a requirement forholding territorial rights (though she claims it is necessary forlegitimate governance), she argues that there are functional andjustice reasons why the state should be organizedterritorially—to secure equal treatment for all citizens of thestate, justice, and the rule of law.

Both Moore and Stilz explore the moral relationship between people andplace through invoking the idea of what it means for a people tooccupy a place. The central difference between Moore’s andStilz’s accounts are the different accounts of the holders ofoccupancy rights. Both agree that the occupancy right-holder mustoccupy the land legitimately (meaning that it has not displacedsomeone else) and it must be rooted in that geographical space by thelife-plans and projects of the group’s members. However,Stilz’s theory describes the holder of occupancy rights as theindividual; and Moore disaggregates different ‘incidents’of occupancy rights, so that some are held by individuals (which shecalls individual residency rights) and some are held by groups (whichshe calls a group-based occupancy right). The key element, for Moore,in the transition to territorial rights is the group-based occupancyright. Both argue that occupancy requires more than physical presence:the individual and/or group must be rooted in that geographical spaceby the individual life-plans, and, for Moore, the collective projectsof 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 orrelocated—because it will disrupt their located lifeplans—but neither can offer precise guidelines, internal totheir theory, for boundary–drawing. Moore concedes that hergroup occupancy principle can only identify heartlands of groups, butcannot, on its own, draw precise boundaries. This is true, in part,because groups often overlap on the same land. Thus, her account mustappeal to a further principle (e.g, subsidarity, consent, conventionand so on). In many cases, even this is insufficient, becauseterritories cannot be parcelled into discrete units, so power-sharingforms of self-determination between groups are also necessary.Stilz’s theory seems to be even less determinate with respect toidentifying the location and scope of territorial rights becauseit’s not clear that individual located life plans would convergeon the same place at all. Although Stilz uses the case of Navajos as acase of a group that was wrongly expelled, it’s not clear wherethe individual Navajos are entitled to return to, and why their claimsare any different from any other person, who has plans with respect toa place, and in which, individual variation being as it is, there mayor may not be overlap among different individual Navajos. In bothcases, the imprecision regarding boundaries is also present in rivaltheories (e.g., place-based theories, below).

Second, the emphasis on collective self-determination as the valuethat territorial rights realize seems to apply most straightforwardlyto groups that engage in democratic self-determination, because thenwe can then be confident that the state is the vehicle of the groupself-determination. If this is so, then, both Moore and Stilz arevulnerable to the criticism that is parallel to one that is levelledagainst justice theorists, viz., that either the bar to being aterritorial right-holder is so high that many states would not meet it(which seems somewhat counter-intuitive); or the bar is so low that itraises questions whether such an entity could be justified on aself-determination argument. Both Moore and Stilz partially avoid themost troubling implication of this as they argue that the appeal toself-determination distinguishes between internal and external threatsto state territorial integrity and that they can thereby explain thevalue that is lost by external intervention.

Third, whether self-determination could be realized or not depends onwhether the occupancy group (in Moore’s theory) or the aggregateindividuals who have occupancy rights (in Stilz’s theory) havethe capacity to be the right kind of agent to exercise jurisdiction.However, the capacity condition is normatively problematic. If wedefine capacity broadly, it suggests that any state that is conqueredor failed lacks capacity and is therefore not an appropriate agent forterritorial rights. This is counter-intuitive, because many groupslack capacity because they have been denied it through previousinjustice. Thus it seems that this condition is too sensitive to powerconfigurations for a normative theory of territorial rights. Mooreattempts to avoid this problem by emphasizing that there arethird-party duties to refrain from interference and to assist groupsthat suffer from burdened conditions. However, this strategy could becriticized as beingad hoc, in the sense that it is not basedon a principled definition of what counts as‘capacity’.

3.7 Place-Based Theories

We are now clearly in the second wave of contemporary theorizing aboutterritory and territorial rights, with sophisticated contributionsthat build on and criticize existing contemporary theories. PaulinaOchoa Espejo and Cara Nine have labelled the self-determinationtheories of Moore and Stilz, a ‘desert island’ model,andproposed their own alternative ‘River Model’ of territory,which is ‘place-based’. The ‘desert island’model, they claim, assumes that each group has independent politicalcontrol and has difficulty conceptualizing shared authority overterritory. The ‘River Model’, which they both identifywith, is superior they claim because it assumes that groups are nothomogeneous and discrete over specific territories, which is clearlyempirically true, and it also seems to map onto important ecologicalfeatures such as water, which humans need and must share – hence theidea of a ‘river model’ (Nine) or ‘watershedmodel’ (Ochoa Espejo).

The theories developed by Nine and Ochoa Espejo operate at theintersection of ‘obligations’ and ‘place’,with Ochoa Espejo emphasizing that people establish conventions in aplace to work out how they will live in common; and Nine adding thatthese obligations are discharged in a place, but their content must bealigned with her Pufendorf-inspired account of ‘naturallaw’, emphasizing equal moral agency and peaceful coordinationof human activities (Nine 2022:40).

What counts as the relevant ‘place’? Ochoa Espejo and Nineendorse two criteria to distinguish ‘places’: ecologicalcriteria, exemplified by the idea of a river or watershed; and denseinterrelationships among people living together. Building on the ideaof river catchment areas where individuals must collectively manageand share access to a vital resource like water, Nine develops theconcept of ‘foundational territories’, which are placeswhere individuals can meet their obligations with the help ofcollective rules. Larger territories can encompass these foundationalterritories, but they are the building blocks in allocating resourceand territorial rights of the state In addition to ecologicalconsiderations, both thinkers describe cities as places that give riseto place-specific duties; cities “map the contours of densenetworks of place-specific relations” (Ochoa Espejo 2020: 197).Both rivers and cities are spatially integrated settings where asingle jurisdiction is a “prerequisite for clarifying rights andobligations” (Nine 2022: 170); and where border division isincoherent, because “groups and individuals have projects...[which] rely on and use shared resources as direct and indirect meansto the fulfilment of these projects” (Nine 2022: 171).

There are at least three criticisms that could be made of this kind ofaccount. The first is that it exaggerates the difference between itsown model and the self-determination accounts of Stilz and Moore,which also emphasize the importance of place and are relational in thesense that a core principle—the occupancy principle—isbased on the relationship between people and place.

A potentially more serious criticism is that, if an account is togenuinely place-based it is important to figure out what counts as a‘place’ and how different places are distinguished; andboth theories struggle with this. As argued above, both Nine and OchoaEspejo argue that the geographical domain of jurisdictional authorityshould correspond either to ecological features of the world and theresources on which we rely, with water or rivers being a centralexample; or to the overlapping and interdependent nature of socialrelations and so should encompass areas of dense social relations andconnections (e.g., a city). Neither criterion clearly identifies theboundaries of a ‘place’. In the case of interconnectingrelations, the problem is that people are in many different kinds ofrelations with one another, and these relationships may have differentlocations. Since not all of these interconnections are overlapping, dowe identify the location of a city only where the overlap is mostdense? Ecological criteria, evoking natural features of the landscape,also have an important conventional (arbitrary) element. While itmight be thought that this can be determined purely scientifically,this is not so. To see this, consider the delineation of biodiversityhotspots in the climate justice and biodiversity literature. One ofthe best-known scientifically accepted methodologies for classifyingan area as a biodiversity hotspot has been put forward by the Globalsafety Net project, which identifies three distinct criteria, each ofwhich is scalar (Dinerstein 2020). While these criteria are justifiedby reasons, any particular delineation is arbitrary (how muchdiversity? How much carbon capture? How do we balance extent ofbiodiversity vs. species rarity?). This is not a problem in itself,but could be a problem if the precise conventions in a place aredisputed, or the ‘place’ itself is unclear. Ochoa Espejo(2020: 191) anticipates this criticism by invoking as aboundary-drawing method the idea of splitting the difference, betweenrival claims, thus ruling out unreasonable ones. Nine’s methodis to appeal to higher levels of jurisdictional authority to resolvesuch disputes, and a narrow principle of subsidiarity to determinemore precisely the boundaries of the units.

However, these responses lead us to the third criticism, which mightbe levied especially by the self-determination theorists. This is thatit is not particularly intuitive that boundaries should be drawnaround natural ecological features or dense relationships, with noregard for the aims and aspirations concerning the boundaries, of thepeople who live in the place. Consider natural features like a river.While it’s true that there shod be some rules and agreedprinciples to cooperate over governance of such a place, it’snot at all clear that this should define units of jurisdictionalauthority. Imagine that a river has three different Indigenous peoplesalong it. If each wants their own practices and politicalinstitutions, then, if they agree – make a treaty regarding the rulesaround living and sharing the resources of the river, why not alloweach people to be self-determining as a group (as the relevanttreaty-maker). The fact that it is a shared and essential resourcesuggests only that cooperation is needed, but it’s not clearthat groups defined in terms of their aspirations and politicaldesires (peoplehood), shouldn’t be the relevant group, and theissue of cooperation would then come in at the second order level. Thesame might be said about areas of dense interconnections. Detroit,Michigan and Windsor, Ontario represent geographical areas of denseinterrelationships, with a border dividing them. But if people inDetroit identify as Americans, and people in Windsor as Canadians thenwhy not have cooperation over such things as travel across the border,rather than assume that jurisdictional authority must follow theseplaces?

4. Future Directions

The recent surge of interest in territorial justice and territorialrights may be attributed to the fact that it has become clear that thedifferent elements of the bundle of territorial rights are connectedto a wide range of increasingly important and pressing debates, suchas resource justice, migration and secession. Some of the mostinteresting work on migration justice takes into account the issue ofrights over territory (Ochoa Espejo 2016; Song 2018). The interest inresource justice may be connected to the obvious fact that there aremany different claims for common pool resources and some of these arebeing increasingly degraded. This makes more pressing the question ofwho has entitlement to control resources and what are the terms underwhich individuals or groups should interact with such places(Armstrong 2017; Nine 2014, 2019; Banai 2016; Moore 2021). Armstrong(2017, 2018), has focused on resource justice and on the special caseof the oceans which is a particularly significant common poolresource. Some of this interest is connected to technologicalinnovations which make possible harvesting resources in the seabed, orpotentially in space.

Another area of recent interest has been the implications of occupancyrights, which are discussed in self-determination theories, and hasrecently been deployed in relation to indigenous land rights (Coburn2019; Coburn and Moore 2022), gentrification (Huber & Wolkenstein2018; Krishnamurthy and Moore 2024), wrongful expulsion from land(Moore 2013; Lefkowitz 2014; Stilz 2017; Guillery 2023; Luomaand Moore 2024), and people who inhabit islands which are doomed tosink with the effect of climate change (Blomfield 2019; Kolers 2012a;Nine 2019). If these theorists are correct to theorize a moralrelationship between people and place, then, the loss suffered bypeople who are displaced by climate change cannot be redressed fullysimply by allowing them to migrate to another place: they have losttheir home and community, and the place that they are attached to.

The burgeoning literature on territorial rights demonstrates the wayin which focus on territory and territorial justice has implicationsfor a wide set of literatures in quite different areas, andpotentially gives rise to a host of related arguments on diversetopics.

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Historical political theorists are cited in a way that is accessibleregardless of which edition one uses. Here are the references of theacronyms used in the citations above:

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Other Internet Resources

• On territory:Territory and Justice: a research network (University of Bristol)
• On secession:Liechtenstein Institute of Self-Determination (Princeton)
• On internal land/territory disputes:Native Land Digital
• On migration:Migration Data Portal

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