Abstract
Is a Revisionist Approach to Territorial Sovereignty Viable?
Anna Stilz, Department of Politics, Princeton University, Princeton, NJ, USA
Many thanks to Anna Jurkevics for her terrific review of Territorial Sovereignty. As Jurkevics characterizes my book, its aim is “to reshape our vision of what the Westphalian world order could be if it were just.” 1 As she carefully notes, this does not mean I endorse the territorial states system in its current form, though I do defend some of its central features—including the fact that our international order is composed of independent, self-governing, territorial units. My book instead offers a reformist account of territorial sovereignty: I argue that we should institutionalize new limits to states’ sovereign prerogatives, in the form of internal self-determination for indigenous peoples and minorities, and significant qualifications to the state’s exclusionary rights over borders and resources.
Yet Jurkevics wonders whether these reformist aims are doomed to be self-defeating, since the source of the “environmental, refugee, and neocolonial crises” my revisionist proposals address is, in her view, “entangled in the very system of territorial sovereignty” the book defends. 2 Without a “more radical transformation” of the states system, she believes these problems will remain insoluble. 3 While Jurkevics raises other concerns—including whether I have adequately engaged indigenous perspectives on land and self-determination—I focus here on her central worry about the viability of my revisionist approach.
To assess this worry, I take up two questions: First, are the revisionist proposals I defend adequate to the problems they address? Second, are my revisionist proposals likely to succeed without a fundamental restructuring of the states system?
The key idea animating my reformist prescriptions is that the core values of occupancy, basic justice, and self-determination—values that on my account best justify the states-system—hold universally. If the international order is to be legitimate, these core values must be guaranteed for everyone. Securing the core values for all requires “building in” limits to states’ territorial sovereignty. To be justified, states’ territorial rights cannot threaten occupancy, basic justice, and self-determination for other inhabitants of the globe.
For self-determination to be guaranteed universally, states must afford autonomous self-government to their indigenous peoples and other minorities, abandoning a unitary legal order in favor of constitutional pluralism. 4 I also argue that states’ territorial sovereignty is limited by a “fair-use proviso.” I specify certain fundamental territorial interests—connected to the three core values—that must be secured for everyone if use is to be fair. These include: material interests in the earth, interests in using geographical space to pursue located life-plans, interests in access to minimally just institutions, and interests in collective self-determination (166–67; 239–40). States’ justifiable sovereignty claims may not threaten foreigners’ fundamental territorial interests (157; 251–52).
I draw several important policy implications from this fair-use proviso. First, I hold that states are required to offer a permanent home to migrants whose fundamental territorial interests are persistently threatened in their country of residence. I count as “refugees” (i.e., people who should have an internationally recognized right to migrate) many people not covered by the 1951 Refugee Convention, including those threatened by famine, civil war, severe economic deprivation, ecological devastation, or natural disaster (169–73). Thus, my view seeks to institutionalize a wider range of limits to states’ territorial sovereignty than are currently acknowledged in international law.
Second, I argue that states may sometimes be required not just to accept refugees into their territory but to redraw their political boundaries in order to grant cultural and political autonomy to groups who lack a territorial base elsewhere. Perhaps the most radical argument in the book is that the international community should be prepared, at times, to redistribute territory away from historic homeland groups that have previously occupied and governed it (177–82).
Finally, I argue that the fair use proviso constrains states’ sovereignty over global systemic resources whose exploitation poses a pervasive threat to outsiders’ fundamental territorial interests in their own countries. Massive deforestation in one part of the world, for example, may threaten people elsewhere with loss of territory due to flooding or desertification (238–42). I hold that states are required to cooperate in international institutions to co-manage global systemic resources on which inhabitants of the globe together pervasively depend.
These duties to secure occupancy, basic justice, and self-determination for all are enforceable duties: they set out essential conditions for the legitimacy of a territorial states system. It is not a matter of internal discretion whether a state grants autonomy to its indigenous peoples and minorities; persistent failures to respond to their qualified demands for self-determination should carry international penalties (138–39). So too should states’ failures to admit refugees whose fundamental territorial interests are threatened in their state of origin (186), or states’ attempts to exploit natural resources in ways that would expose foreigners to loss of their homes, lands, or livelihoods (241). Decisions that infringe outsiders’ fundamental territorial interests do not plausibly count as internal sovereign matters that are justifiably insulated against interference.
Jurkevics is therefore wrong to characterize my view as committed to “sovereign discretion” over migration and resources in a way that gives short shrift to “the rights of the expelled and excluded.” 5 When it comes to exclusion from borders and resources, I distinguish between two kinds of state decision: (1) decisions that threaten others’ fundamental territorial interests, and (2) decisions that, though unjust, do not threaten others’ fundamental territorial interests. As I have argued, I do not think states have sovereign discretion over decisions of type (1). I do believe, however, that states have a right against external interference in decisions of type (2); these are cases where their sovereign choices, though unjust, would not undermine outsiders’ enjoyment of the three core values. For example, I argue that states have unenforceable duties to admit opportunity migrants (i.e., nonrefugees) who will not harm their inhabitants and to share with foreigners the proceeds from exploiting the state’s natural resources. Yet if citizens decide to exclude harmless economic migrants, or to hoard the profits from their natural resources, I believe they should not be subjected to external interference. Self-determining citizens have an important interest in governing their common life in accordance with their own judgments, which sometimes gives them a “right to do wrong”—that is, the right to make an unjust decision free from external coercion. This right to do wrong, however, is limited to those decisions that do not infringe outsiders’ fundamental territorial interests.
Are my revisionist proposals likely to succeed without thoroughly restructuring the states system? In chapter 8, I take up the question of how authoritative global institutions implementing these revisionist proposals should be designed. While Jurkevics asserts that my view “has no clear mechanism to address crises that exceed diplomacy,” 6 chapter 8 in fact proposes such a mechanism, in the form of authoritative global institutions underpinned by interstate sanctioning. Although I develop the argument primarily with reference to natural resources, I suggest that the core principles could be applied to other issues, including a more robust international refugee regime (186, 221, 246). I argue that states are required to cooperate in multilateral international institutions that can promulgate specific policies to ensure global systemic resources are managed to protect everyone’s fundamental territorial interests. I further hold that coercion is appropriate to enforce cooperation: states may justifiably sanction other states’ noncompliance with international resource management institutions. In my view, such sanctioning should be undertaken horizontally and without instituting a central global monopoly of force, through imposing tariffs and trade restrictions, freezing assets, and denying noncompliers diplomatic recognition or membership in international organizations.
Jurkevics could reply that this mechanism will prove ineffective. Maybe something stronger is needed—perhaps a world government with overriding legal authority and executive power (255–58). If participation in international resource management and refugee schemes is made an effective condition of access to interstate trade, I believe the incentive to comply with these schemes will be quite powerful. I also worry that a sweeping reform of the states system may throw up other, worse moral difficulties. Individuals have an important interest in avoiding subjection to alien coercion—that is, coercion by institutions that fail to reflect their judgments about how they should be governed. To accommodate this interest, I argue that legitimate political communities should continue to be governed, within their own territories, by institutions that their constituents broadly accept and view as appropriate. Although my proposed mechanism heavily incentivizes peoples to cooperate, it also immunizes legitimate societies against direct interference inside their territories. Of course, I cannot say for certain that this proposal will prove successful. I close the book by suggesting that if it persistently fails, there may arise a case for overriding collective self-determination. But I believe there is every reason to work first toward cosmopolitan reforms via an international arrangement that accommodates this important value.
Reckoning with the Sovereign Territorial Imaginary: A Response to Stilz
Anna Jurkevics, Department of Political Science, University of British Columbia, Vancouver, Canada
Anna Stilz is correct that I glossed over nuances in her policy prescriptions in my review of Territorial Sovereignty. In my original review I criticized her for granting too much discretion to states to exclude migrants. She is right to emphasize, as she does in her response, that she argues that states have an enforceable moral duty to admit “migrants whose fundamental territorial interests are persistently threatened in their country of residence.” For Stilz, states only retain discretion when it comes to “opportunity” migrants.
Stilz’s larger concern, however, is my critique of her revisionist approach. In my initial review, I worried that the sources of the environmental, migration, and neocolonial crises Stilz seeks to mitigate are entangled in the very system of territorial sovereignty she defends. In her response, she points to the horizontal mechanisms for adjudicating territorial crises she lays out in chapter 8 of Territorial Sovereignty, where she recommends authoritative global institutions underpinned by interstate sanctioning. Stilz then anticipates how a cosmopolitan like myself might reply to her solution: “Maybe something stronger is needed: perhaps a world government with overriding legal authority and executive power.” Yet given the widespread condemnation of a world state among contemporary cosmopolitans, this anticipation is a straw man. Most cosmopolitans today advocate variations of “cosmopolitanism from below,” which retain a commitment to universal human rights but specify how these should be democratically instituted; cosmopolitans also advocate decentering the state to make room at the bargaining table for nonstate political institutions—for example, federations, transnational movements, municipalities, and substate minorities. From a cosmopolitan point of view, then, the real problem with Stilz’s proposed solution is not that it is decentralized and horizontal, but that it poses sovereign states as the agents of international politics.
It is true that Stilz defines states capaciously so that indigenous peoples and subnational groups are entitled to self-determination, but her model still heavily favors existing state institutions as negotiators on the world stage. My question about Stilz’s proposals for international negotiation is this: Why should we assimilate nonstate groups to the state model instead of learning what these nonstate political forms can teach us about possibilities for cooperation and solidarity around issues of global concern? Why is the Westphalian state the correct model for indigenous groups, given the historical and ongoing suffering they have suffered at the hands of such states? These questions are not explored in Territorial Sovereignty, perhaps because Stilz already provided a lengthy defense of the liberal state in her first book, Liberal Loyalty. 7 Both Liberal Loyalty and Territorial Sovereignty take on a set of mainstream interlocutors in political theory—top-down cosmopolitans, nationalists and communitarians, Lockean liberals—whose work does not force Stilz to reckon with the historical shortcomings of the territorial state as it developed in Europe and was forced upon the rest of the world. This is why my initial review exhorted Stilz to engage more seriously with indigenous theorists such as Glen Coulthard and Audra Simpson. To this I would also add Marxists, and critical historians and social scientists of the state. 8
What would these scholars add to this debate about the salvageability of the sovereign state? Their works detail how projects of state-building have purposefully dispossessed, dominated, and violently assimilated indigenous peoples and rural communities; they argue that the power-gathering and land-rationalizing logics of capitalism and sovereignty are intertwined, resulting in historical and ongoing processes of land theft against vulnerable populations. It is dissatisfying, therefore, that Stilz’s defense of the sovereign states system does not reckon with these histories as histories of the state-form itself. She may respond that the shortcomings of the sovereign state do not proceed from something intrinsic to the institution itself. I would disagree, but this conversation can only go further if Stilz engages with a set of critics of the state who are more historically penetrating than the ones that she is used to engaging (such as Charles Beitz and David Held).
But perhaps I am again glossing over the nuances of Stilz’s argument. She could reply that her theory makes ample room for nonstate institutions and agency, via international human rights law and subnational self-determination. Indeed, she “oppos[es] a traditional view that conceives sovereignty as absolute, indivisible, and unqualified” (Territorial Sovereignty, 13). This claim allows Stilz to argue that international norms and subnational group rights may trump the state’s discretion where fundamental territorial interests are at play. She thus dispenses with the core conceptual element of territorial sovereignty as it was traditionally conceived, which is jurisdictional exclusivity. The vision of international order she defends is suffused with overlapping authority, which means she departs, in some ways, from the system of state sovereignty she nominally defends. Sovereignty, it turns out, has to be violated in order to make territorial sovereignty morally justifiable.
Nevertheless, I want to be careful not to paint Stilz as a crypto-cosmopolitan. Revisions aside, her theory rests squarely on the foundations of what I would call the sovereign territorial imaginary. We can think of this imaginary as a constellation of ideas which, when pulled together, amount to the view that modern polities are (and should be) territorial states, which exercise sovereign control over a bordered land and its inhabitants. It is the imaginary of what Anthony Giddens calls the “bordered power-container.” 9 In this imaginary, geography is mastered through efficient land improvement and the centralization of property distribution. Its pioneers were those thinkers and political entrepreneurs who helped to rationalize land use as property and unify the apparatus of the modern state—thinkers such as Bodin, Hobbes, Grotius, Locke, Vauban, Pufendorf, Vattel, Kant, Weber, and more.
In the early chapters of Territorial Sovereignty, Stilz engages deeply with many of these pioneers, and she takes on their early modern, European assumptions about the proper relationship of humans to land. Theorists like Locke believed that the right of self-preservation implies that humans may possess land as an object necessary to their survival. Self-preservation becomes the ultimate justification for foundational title, which “gives a particular set of people a special claim to live in a given area” (Territorial Sovereignty, 33). But why is possession necessary for self-preservation? Stilz is troubled enough by this question that she denies the full set of liberal property claims of the Lockean model and makes primitive rights to land look more like occupancy privileges than anything else. I wonder, then, why she remains wedded to the philosophical rudiments of a model that poses the human relationship to land in terms of possession and mastery.
Another example of Stilz’s reliance on early modern approaches to land comes in chapter 3, where she relies on Grotius to justify the right to unilateral land appropriation. This justification bypasses important questions: Why does the right of self-preservation imply a right of unilateral appropriation? Why doesn’t self-preservation instead dictate interdependence, cooperation, and reciprocity with the neighbors and nonhumans who help keep us alive and sustain us over time? To be fair, Stilz presses for the right to unilateral appropriation because she wants to say that certain groups should not have to negotiate their land rights with dominating neighbors and biased international systems. As I mentioned in my initial review, it is therefore puzzling that she reaches back to Grotius and Locke, both of whom were heavily involved in justifying colonial violence against the peoples Stilz wants to defend. Dominated indigenous peoples, I would argue, do not need permission for their land rights not because the unilateral appropriation of land is a tenable principle, but because the international system of land distribution is fundamentally unjust and is based on their prior and ongoing colonization. A people should not need permission from their neighbors to be at home in the world when those neighbors happen to be their conquerors.
In conclusion, Stilz makes important departures from Westphalian sovereignty while retaining philosophical foundations that justify the sovereign territorial imaginary. I think this position pulls her in two different directions that are difficult to square. My suggestion is that instead of revising territorial sovereignty on its own philosophical foundations, we ought to interrogate it from a different perspective. We should start by seriously engaging indigenous theories of land that deny the idea that land is an object to be possessed and mastered. 10
I want to end by emphasizing the fruitfulness and range of debates that emerge when radical scholars of land politics—and here I am counting myself—engage with the work Stilz has put before us. These debates are made possible by the many strengths of Territorial Sovereignty, including its clarity, its sharpness, and its frank admission of the shortcomings of territorial sovereignty as it functions today. I want to thank Stilz for engaging in this debate and sharpening my own understanding of territory through her generous contributions. My hope that this exercise in critical exchange will encourage further attempts to speak across the ideological divides that characterize scholarship on land and resources today.