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This chapter examines the appropriate view of the relationship between territory, national communities, and self‐determination. It examines various (historical, indigenous, efficiency, divine) arguments for territorial rights.

This chapter explores the concept of territorial rights. It argues that the primary incidents of territorial rights are rights of jurisdictional authority over persons and resources, while the contingent incidents (incidents that could not hold and the right would still exist) are rights of ownership over resources and rights regarding residency and immigration. An analysis of territorial rights must also include an account of what kind of agent may hold territorial rights. This chapter argues that the agent must be a collective of persons and should not be understood as a state or as an individual.

Chapter 4 provides a theory of particular territorial rights. These particular rights are claimable only by the collectives that meet the general criteria (established in the previous chapters), and that also have a relevant historical connection with a particular geographical region. This chapter advances a collectivistic Lockean account of particular territorial rights by adapting the Lockean principles of desert, efficiency, and autonomy. According to this theory, (i) relevant collectives must be capable of changing the land thereby creating a relationship with it, and (ii) this relationship must be morally valuable—established through the concern for basic individual needs expressed in terms of these principles (of desert, efficiency, and autonomy). Because the collective’s relationship with territory is fundamentally morally valuable, as it is necessary for the collective to meet the basic needs of its members, the collective territorial relationship is granted rights status.

Chapter 2 defends the general collective right to territory from the perspective of natural law theory. A general right to territory is a claim to be self-determining over some territory, even if the particular territory is not yet identified. Natural law theory is well suited for the task of explaining and justifying territorial rights because it establishes a universal method for the appropriation of exclusive rights over goods. However, modern natural law theorists did not carry out a sustained investigation of territorial rights. Consequently, this chapter utilizes capability theory to develop a naturalistic perspective from which we can derive a general principle regarding the acquisition of territorial rights. This principle tells us that exclusive territorial rights are justified if they are essential for the provision of individual basic needs.

After eschewing existing cosmopolitan arguments regarding territory and resource rights in previous chapters, This chapter details an account of territorial rights that is sensitive to the needs of individuals worldwide by adapting a version of the Lockean proviso for use with territorial rights. The Lockean proviso is a mechanism that maintains consistency between principle and practice in the case of systems of exclusive rights over goods. This mechanism is triggered to change particular rights (A’s exclusive right to a territory) when those particular rights threaten the values (to provide for individual basic needs through the self-determination of groups) that justify the system of rights as a whole. Because the system of territorial states is a system of exclusive rights over goods, especially land and resources, it is subject to the conditions of a Lockean proviso mechanism. An application of these arguments yields the following result: ecological refugee states may be candidates as sovereign over a new territory after their existing territorial lands have been lost to the rising sea.

This chapter engages with cosmopolitan theory in order to set the stage for the theory of exclusive collective resource rights. It criticizes the claim that territorial borders are morally arbitrary. Because of the importance of a collective’s relationship to the land and resources for the capacity of individuals to meet basic needs, denying that certain collectives have a prima facie claim to natural resources may constitute an unjustifiable harm to individuals. As such, our placement in the distribution of natural resources is not ‘up for grabs’ in the redistribution of goods.

Who has a right to control borders? Political philosophers divide territorial rights into a right of jurisdiction, a right to use resources, and a right to control borders. However, they focus on the first right, because they think that both the second and third flow from it. This chapter argues that territorial rights are fundamentally plural: the right to border control is independent from the other territorial rights. This pluralist thesis enables an alternative analysis of the right to control borders: specifying their objects, proper site, scope, institutions, duty bearers, and holders. The chapter also shows that border control rights have a different grounding than the rights to jurisdiction and to natural resources. While the latter may be grounded in internal legitimacy, the former are grounded in international conventions and place-specific obligations, indicating that borders require shared and reciprocal governance by adjoining countries and the international system.

The dominant model of territorial politics views territories as distinct, independent, and subject to ownership by its own people: it models countries on a newly occupied desert island. The model however, cannot accommodate crossborder populations, interconnected ecosystems, and other transborder flows. Why does the model withstand critiques? This chapter argues that the Desert Island Model endures because it is normative, not descriptive. The chapter examines this normative origin in Vitoria’s, Locke’s, and Kant’s work, as well as in contemporary Lockean and Kantian theories of territorial rights. It shows that to justify rule on the basis of individual or collective autonomy, these theories must also envision territory as subject to ownership, and thus as distinct and independent from other territories. This is an assumption, not a fact, but it conditions the practice of territorial politics.

This chapter critically examines the two main versions of statist theories of territory, associated with the accounts given by Hobbes and Kant about the link between jurisdictional control over land and the fulfilment of the purpose of the state, which makes territorial right contingent on the achievement of those goods. The Hobbesian version identifies the achievement of peace, stability, coordination, and order as the function of the state and then justifies territorial rights as necessary to an effective state order. The more moralized version, associated with Kant and contemporary Kantians, links the state with the achievement of justice, and argues that territorial rights should be accorded to a legitimate state.

This chapter offers a conceptual analysis of territory, distinguishes it from property accounts, and discusses different versions of property accounts, all derived from Locke’s ‘Second Treatise of Government’. It offers a conceptual analysis of territory and the various rights associated with territory. According to Locke, territorial right is established through the subjection, by free consent, of persons and their land to state authority. This theory is found to rest on a number of flawed assumptions, among them claims to natural rights of property and an obvious link between private property and territorial jurisdiction. Cara Nine draws on Lockean principles to claim that a state is a collective that, like individuals, owns property, namely the territory of the state. After examining the historical antecedents of such ideas, the chapter points away from them and towards accounts of territory based on individual and collective claims of rights.

Chapter 3 turns to political theory to explore the normative foundations of the state’s power over immigration. It examines theories based on (1) the value of cultural and national identity, (2) the right to property, (3) freedom of association, and (4) freedom from unwanted obligations. The first three appeal to the value of collective self-determination. On the nationalist view, the fundamental imperative of immigration control is the preservation of culturally distinctive nations. The property argument derives the right of immigration control from the labor of citizens. The freedom-of-association argument regards citizens as parties to associations, such as marriage or a golf club, which have the right to refuse association with nonassociates. The freedom-from unwanted-obligations-argument does not directly engage with the idea of collective self-determination. I argue that each of these theories falls short of providing a convincing theory of state authority over immigration.

Borders today evoke exclusion, and they pose a dilemma for inclusive democrats: if borders define the people by exclusion, and democratic politics requires the people, then democracy requires exclusive borders. So, on one horn, there is democratic politics, but exclusion; on the other, inclusion, but no democracy. This chapter argues that this is a false dilemma, because it only arises if there is a tight connection between people and territory. Such a connection occurs in the mainstream model of territorial politics, which envisions countries as desert islands belonging to a people—but there are alternatives. This introductory chapter shows how turning to a neglected tradition of territorial politics that focuses on place and geography and takes the environment seriously can show a way out of the dilemma. It proposes a watershed model of territorial politics grounded on place, rather than identity. The rest of the book will use this model to tell us where should borders go, and how should they be governed.

Chapter 5 moves beyond the two most politically consequential understandings of the right to self-determination: attributed to Demos and Ethnos respectively. While normative theorists are not sure how to evoke these figures, this chapter treats them as ensembles that are extracted from Nephos; an even fuzzier and more granular political ‘aerosol’. Against it as a backdrop, the discrete locations of territorial rights will also appear more fuzzified—not as identifiable locations, but rather as Scopos; visual effects of concealed, but nevertheless contestable scopic regimes. Once its holders and objects appear in that light, otherwise incommensurable accounts of the right to self-determination will reveal a denominator they secretly share: a Kelsenian ‘tendency’—an aspiration to increase the degree of constituent attachments across the entirety of the spacetime of a constitutional order whose legitimacy is put in question by a demand for ‘self-determination’.

Chapter 4 advances an alternative justification for the state’s right to control immigration based on the idea of collective self-determination. Collective self-determination is the idea that a group of people should govern themselves. The chapter begins by discussing the meaning, role, and value of collective self-determination and then elaborates a conception of collective self-determination. It argues that the agent of collective self-determination is not a nation, joint owners of state institutions, or members of a voluntary association but “a people.” It then explores the connections between collective self-determination, territorial rights, and immigration control. It concludes by considering the distinctive requirements of democratic self-determination and its implications for immigration control in democratic societies.

Belligerents routinely appropriate their enemy’s publicly owned resources, materiel, and territory, as well as their privately owned resources. The question is whether a belligerent which has taken property in the public and/or private de facto possession of its enemy is under a duty to restitute it once the war is over. In this chapter, it is argued that a justified peace all things considered, does not always require the restitution of what was wrongfully taken; it is also argued that a justified peace sometimes does require the restitution of what was rightfully taken. The chapter defends those conclusions by considering three cases: the restitution of publicly and privately owned moveable property; the return of territory; and the return of displaced individuals to their homeland.

This chapter explores the development of international law on indigeneity. It reviews the legal protections endowed by key documents, such as International Labor Organizations Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The chapter also provides a short comparative legal perspective on land rights of indigenous peoples which helps to situate the Israeli case within other settler colonial situations and to address the status of the relevant international legislation and norms. It concludes that several components of the UNDRIP have gained a status of international customary law, and hence with growing relevance to Israeli jurisprudence and to the Bedouins. The chapter ends by addressing the question of indigenous peoples’ rights in Israeli law and how Israeli basic laws should expand to incorporate the legal protection of the Bedouins.