Attachment to Territory: Status or Achievement?

I Introduction

It is by now widely agreed that a theory of territorial rights must be able to explain attachment or particularity: what can link a particular group to a particular place with the kind of normative force necessary to forbid encroachment or colonization?¹ Attachment is one of the pillars on which any successful theory of territory will have to stand. But the notion of attachment is not yet well understood, and such agreement as does exist relies on unexamined assumptions. One such assumption is that attachment is an achievement of some sort, as opposed to some kind of brute ascriptive status that a claimant has irrespective of anything it might do.

But achievements do not come for free. 'Achievement' is a success term, and any theory predicated on success, no matter how minimal, requires a theory of failure. Yet theorists of territory have not grappled with the problem of failure. This is because they have tried to stake out middle positions, such as settlement or longstanding occupancy, which I call presence accounts. But presence is itself a minimal achievement — the achievement of 'being there' — and hence is not exempt from the challenges facing achievement views.

An 'achievement' is any demonstrable activity that an agent can now perform or continue performing. In contrast, a 'status' is an ascriptive characteristic that one has or lacks irrespective of anything they might now do, either because what had to be done to get it could only have been done in the past (such as being the first settlers) or because the link is not founded in any action (or at least, any action that the claimant might have taken), but rather in properties such as believing the land to be sacred or having been promised it by a god.² Like a status, 'presence' is also typically experienced as unchosen, and also shapes the agent's identity, and thus has ascriptive characteristics. But because 'being there' is performed and can continue to be performed into the future, presence is at bottom an achievement.

In this paper I shall show that problems with status views have led prominent theorists of territorial rights such as David Miller (2000), Margaret Moore (2001), Cara Nine (2008; 2012), and Anna Stilz (2009; 2011) to embrace presence criteria. Yet presence is not a straightforward idea, and in embracing it these theorists have begged the very question of attachment that they set out to answer. More recently, Miller (2007; 2012) has proposed a full-fledged achievement view. However, his proposal crucially lacks a theory of failure. In contrast, an achievement view based on 'plenitude' does not rely on presence and incorporates a plausible theory of failure. For these and other reasons, I shall argue, plenitude is the most attractive theory of attachment to territory, and hence can ground a theory of territorial rights. I return at the end to deeper implications for theories of territory, including how we should understand territoriality itself.

Before beginning in earnest we need a working definition of territorial rights. Most generally, S has a territorial right in a particular geographical place P when S is morally entitled to bear a territorial relation to P. The content of the territorial relation is some bundle of rights and responsibilities regarding P through which S attempts to shape its members' common life. The content of this bundle of rights — which particular rights and responsibilities regarding a place constitute the territorial relation — is not straightforward. Yet some consensus has emerged around A. John Simmons's (2001: 306) gloss on the territorial rights of states. To paraphrase, these include (a) rights of jurisdiction over persons within the territory; (b) rights to control unowned land and resources within the territory; (c) rights to tax and regulate property within the territory; (d) rights to control borders; and (e) rights to territorial integrity.³ Thus the principal job of a theory of territorial rights is to explain how any agent could gain a moral right to exercise these five sets of rights over any particular place.

My aim in this paper is to enhance our understanding of...