Abstract
A prominent approach in the debate on territorial rights claims that a group may have jurisdictional rights over a particular land if that land has become a repository of value for the group. This justification relies on a premise which has remained largely unsubstantiated, namely that having jurisdictional rights should be our preferred means for ensuring the group’s retaining of the land’s embedded value. This article discusses a recent attempt to fill this gap. David Miller acknowledges that the value could be retained by the group if it has private property rights. However, he argues that because such rights can be changed at will by the holder of jurisdictional rights the group’s retaining of value is unacceptably insecure. I argue that this attempt fails. Miller’s argument is briefly stated so I start with some reconstructive work. Most importantly, I suggest that the argument relies on a descriptive claim about empirical probabilities, namely that the group’s having jurisdictional rights (in international law) provides the largest feasible reduction of insecurity. I then provide some tentative suggestions about expected state behavior which challenge the validity of that descriptive claim; I argue that a reform of international law which confers internationally enforced property rights on the relevant groups—rather than jurisdiction—may provide a similar (or even relatively larger) reduction of insecurity. My tentative conclusion is that Miller’s appeal to insecurity fails to provide the “embedded value” approach (favored by him and others) with the needed bridge from property rights to rights of jurisdiction.
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Notes
Miller does not specify which property rights are required. He only states that the group needs rights ‘of continued occupancy’ and/or ‘of private property’ (2011, pp. 258, 263). In any case, rights of access to the land, to use of it, and (to some extent) to control others’ access to and use of it, will probably be needed. However, for our purposes it is enough to define the set negatively: as not including the (jurisdictional) right to amend those rights.
My argument is strictly negative. I only explore whether Miller’s argument succeeds in justifying the rights it claims to justify. I take no positive stand on what set of rights the relevant groups should have, if any, all things considered.
We can assume for our purposes that the group lives as a minority within a larger jurisdiction and is incapable of blocking the majority from making legal amendments. The majority group is thus the de facto holder of the state’s (legal) jurisdictional rights over the whole land.
Insecurity could be seen as a moral bad insofar as it (somehow) impedes the group in its further creation of embedded value (e.g. its developing of new, and revising of old, life plans and/or meaningful relationships with its physical environment). But this explanation seems not to be at work in Miller’s argument: the valuable relationship with land is already established; the focus is rather on retaining the (material and/or symbolic) value which is already there.
A proponent of something like Pettit’s (1997) ideal of ‘freedom as non-domination’, e.g., might agree with (iv).
I assume that jurisdictional rights are conferred as legal rights (within international law). I relax that assumption in note 12 below; but as I explain there, this seems to have no significant import for my argument.
Miller could reply that the argument is concerned with both: it aims to reduce conceptual insecurity as much as possible whenever that will not increase actual insecurity. Removing property rights in national law eliminates conceptual insecurity; but whenever this also increases actual insecurity, such a “hybrid” account might block that result. However (to forestall things), it is unclear to me whether receiving jurisdictional rights decreases conceptual insecurity more than the scenario I call Property below: as we shall see, in both scenarios the right to amend the group’s rights is located in the same jurisdictional authority: the international community. But if there is a tie with regards to reduction of conceptual insecurity, the actual insecurity level tips the scales; and if I am correct (below) in suggesting that Miller’s remedy fails to provide the largest reduction of actual insecurity, his argument would fails also on that “hybrid” account.
There is a distinction, as noted by an anonymous referee, between analyzing the effects on insecurity associated with how states might respond to a sub-group’s transition from one legal status to another in either Property or Jurisdiction, and a “non-transitional” analysis where the group’s right (of property or jurisdiction) is treated as a (non-changeable) given in each scenario. On a strictly “non-transitional” analysis the problem of states’ being opposed to no-fault secessions might be avoided. This, however, requires that a group’s relation to land is static such that once jurisdictional borders have been redrawn there will be no need for further adjustments. But Miller’s conception of how groups establish (and lose) valuable relationships to land over time is arguably quite dynamic. So (at least on Miller’s version of the insecurity argument) the scenario where states face future redrawing of borders based on the genesis of new sub-groups within their jurisdiction—whose relation to land does not coincide with existing borders—must be taken into account.
In the Draft Declaration to the 2007 UN Declaration on indigenous peoples’ rights, Norway and Canada (among others) stressed that rights of indigenous self-determination must be exercised within existing states (Fitzmaurice 2009, pp. 150–1).
Cf. e.g. the Court’s ruling (on 31 August 2001) in the case of the Awas Tingni group vs. Nicaragua (Anaya and Grossman 2002, pp. 1–2).
I assume that the law will be enforced against all (or as many) states (as possible) by varying coalitions of enforcing states (carrying a UN mandate or similar).
I assumed above that Miller is concerned with legal jurisdictional rights. However, the insecurity argument could be meant for a world in which relations between states (including their respecting others’ jurisdictional rights) are regulated through voluntary adherence to moral norms, not through coercive law. Elsewhere Miller (2007, p. 269) seems to generally favor such a framework for international relations. However, if jurisdictional rights are conferred as moral rights only, then questions about expected state preferences become (even) more pressing. And, in light of my present suggestions, it is hard to see why a norm recommending jurisdictional rights/secession as remedy for insecurity would be voluntarily adopted (and stably complied with) over a norm recommending lesser cessions of jurisdictional authority.
It has been plausibly suggested to me that various forms of constitutional protection of rights, which require no international enforcement, might outperform Property. This, however, does not affect my (strictly) negative argument. Whenever such arrangements also outperform Jurisdiction, Miller’s argument fails to ground jurisdictional rights.
References
Anaya, S.James, and Claudio Grossman. 2002. The case of Awas Tingni v. Nicaragua: a new step in the international law of indigenous peoples. Arizona Journal of International and Comparative Law 19: 1–15.
Falk, Richard. 2011. The Kosovo advisory opinion: conflict resolution and precedent. The American Journal of International Law 105: 50–60.
Fitzmaurice, Malgosia. 2009. The new developments regarding the Saami peoples of the North. International Journal on Minority and Group Rights 16: 67–156.
ILO. 2009. Indigenous and tribal people’s rights in practice: a guide to ILO convention no. 169. Geneva, International Labour Organisation (ILO): International Labour Office.
Meisels, Tamar. 2009. Territorial rights, 2nd ed. Dordrecht: Springer.
Miller, David. 2007. National responsibility and global justice. Oxford: Oxford University Press.
Miller, David. 2008. Political philosophy for earthlings. In Political theory: methods and approaches, ed. David Leopold, and Marc Stears. Oxford: Oxford University Press.
Miller, David. 2011. Territorial rights: concept and justification. Political Studies 60: 252–268.
Pettit, Philip. 1997. Republicanism: a theory of freedom and government. Oxford: Oxford University Press.
Acknowledgments
Earlier versions of this paper have been presented at two conferences arranged by the Nordic Network on Political Ethics, in Uppsala on 17 June 2010, and in Vejle on 2 June 2011. I am grateful to the participants on those occasions, and particularly to Tom Christiano, Bob Goodin, Robert Huseby, Kasper Lippert-Rasmussen, Raino Malnes, David Miller, and Torbjörn Tännsjö for their instructive comments. I have also benefited from the extensive reports provided by two anonymous referees for this journal. A special thanks is due to David Miller who has been very helpful at various stages of my work on this paper.
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Angell, K. Do Insecure Property Rights Ground Rights of Jurisdiction? Miller on Territorial Justice. Res Publica 19, 183–192 (2013). https://doi.org/10.1007/s11158-012-9201-7
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DOI: https://doi.org/10.1007/s11158-012-9201-7