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OWNERSHIP, OCCUPANCY, AND SOVEREIGNTY RIGHTS

Consider three all too plausible scenarios. A combatant set on looting vacant houses of enemy non-combatants takes artefacts with him to his homeland. Belligerent A stations its troops in enemy territory T and, at first in the name of military necessity but later on as part of an expansionist policy, purely and simply annexes it to its own. Having forcibly annexed T, it settles its own members there and prevents enemy non-combatants who fled its troops’ advance from returning. At issue in those cases are violations of, respectively, ownership rights, sovereignty rights, and occupancy rights. An account of the grounds upon and conditions under which wrongdoers are under a duty to restitute to their victims what was taken from them is thus parasitic on a prior justification of all three kinds of rights. In this section, I sketch out such a justification and provide a defence of restitutive justice in general.

Justifying Ownership, Occupancy, and Sovereignty Rights

Let us start with ownership. To say that some agent A is the rightful owner of a good g presupposes a coherent account of what it means to own something, of who A is, and of the grounds upon and conditions under which one is the rightful owner of things. Standardly, to own something—g—means to have the following set of exclusive rights in respect of g the rights to use, waste and destroy, and manage, as well as the right to derive an income from g (ownership of which income in turn consists in the same set of incidents); the power to sell, give or bequeath g with our consent, whose jural opposite is an immunity not to have g taken away from us without one’s consent; the liability to have g taken away from us without our consent—as when the state exercises a power of eminent domain over g; and the duty to ensure that g does not cause unwarranted harm on third parties.5

Those rights can be held by private and public agents: in private ownership, one or more agent have control over how g will be used and by whom, with no restrictions on the ways in which they do so save for a duty not to harm others; in public ownership, a political agent (usually a political community of some kind) has such control and exercises it in its politically and socially defined interest.[1] [2]

Defending private ownership—be it individual or collective ownership—has proved the hardest task by far, precisely because to have ownership rights over g is to have the right to exclude third parties from using and/or controlling it, often to their considerable detriment. Let me offer a (necessarily) brief defence. As I note in s.1.2, in stipulating that individuals should have prospects for a flourishing life, justice requires that they should be able to frame, revise, and pursue a conception of the good which they regard as theirs over the course of a significant part of their life. This in turns means not just that they should have the personal capacities to realize such conception but also the material means to do so. It is hard to see how individuals could fulfil any conception of the good without having some degree of exclusive control over those means. Thus, justice requires that, subject to their having satisfied its distributive and corrective demands, individuals enjoy the rights to use, destroy, waste, and manage those means, the right to derive income from them, the power to transfer them, and immunity against forcible transfer. Importantly in the present context, the claim that ownership rights are constrained by the demands of distributive and corrective justice implies that rights of bequest and inheritance are conditional on meeting those demands.

Those points obviously apply to moveable resources, but they also support the conferral of some ownership rights over immoveable resources such as land. They also support occupancy rights, which include the right to exercise some control over one’s place of habitation, as well as the rights to move around, and take part in the social and economic fabric of, the wider territory on which the house or land in/on which one lives are situated.[3] Those rights protect individuals’ interest in enmeshing themselves in interconnected networks of that kind, without which they could not frame, revise, and pursue a conception of the good. Although individuals can and indeed often do uproot themselves in search of a better life elsewhere, to force them to do so is, at least at first sight, to fail to treat them with the concern and respect which they are owed. Clearly, occupancy rights over land are not co-extensive with ownership rights over one’s place of habitation: many people do not and never will own the home in which they live. So long, however, as they enjoy ownership rights over a reasonable set of material resources as well as some occupancy rights, they can be said to have prospects for a flourishing life.

With a few modifications, my brief account of ownership rights can be extended to publicly owned resources. By publicly owned, I mean owned by agents in a political capacity—where ‘political’ can denote a village, a county, a sovereign nation state, or an association thereof. In justifying private ownership rights, I claimed that individuals cannot enjoy a flourishing life unless they have secure access to, and some degree of control over, the required resources. The same goes with public ownership rights. For if it is the case that, as I noted in s.1.2, individuals have the jointly held right to form political associations, it stands to reason that they should have the jointly held right to use, control, and manage the resources which they need in order effectively to shape their common life—consistent of course with the demands of global distributive justice. This is so whether the resources are moveable, such as money and materiel, or immoveable such as buildings, land, and territory. However (and this is crucial), the claim that individuals belonging to a given political community have the jointly held right to associate with one another and to determine their own future as a community, while providing support for the further claim that they have jointly held rights over the required resources, does not provide support for the further claim that they have jointly held rights over this or that territory T: after all, it may well be that another group has a stronger claim to T. On what grounds, then, do those individuals have territorial rights in respect of T?[4]

In CW, I defended territorial rights on the grounds that individuals cannot securely exercise their right to political self-determination if they ‘are constantly vulnerable to being forcibly expelled from where they live and thus to being torn asunder from the interconnected networks of relationships—familial, professional, social—which form the fabric of their lives’ (43). Nor, moreover, can they properly fulfil their obligations of justice to one another and to distant strangers if they are vulnerable in those ways. On that view, thus, the fact that individuals are already there confers on them a prima facie right to staying where they are. But it also confers on them a right to make decisions about their common life over T—in other words, territorial rights in respect of T. Occupancy, in other words, is not enough: it must be protected by exclusive rights of government.

Note that on this account, birth is not what confers the status of citizen, and the territorial rights which come with it—be it birth from citizens of T, or birth on T. Jus sanguinis and jus solis are both wholly arbitrary bases, morally speaking, for the distribution of goods as essential to human beings as the opportunity to share in the major decisions affecting the community of one’s residence. On egalitarian grounds, jus habitationis (understood here not just as residing in one’s house, but as occupancy of the land in general) should be regarded as a sufficient basis for citizenship, to the extent that long-term residence signals a willingness and ability to share in C’s long-term future. Granted, there might well be good practical reasons for regarding both as possible bases for citizenship: checking that every single person coming of age has fulfilled some residence requirement as implied by jus habitationis might be practically infeasible, and birth, and birthplace, might thus serve as acceptable proxies. But birth could only be a proxy (and thus has no moral significance on its own), and could never supersede residence.

Some might object that my argument is vulnerable to the charge of arbitrariness, since it assigns special, rights-conferring value, to the fact of being there. However, and crucially, merely being there is not enough to confer on those individuals all-things-considered rights over T. Being there matters only in so far as it signals a willingness and ability on the part of habitual residents of T to share in the life which they make together. Moreover, account must be taken of the fact that their presence in T may be the result of wrongful acts, which might then generate resti- tutive duties. There is a limit to those duties, of course: depending on how far back in the past those wrongful acts were committed, those individuals may not be expected to leave T if having to do so would jeopardize their prospects for a flourishing life. Thus, even if we accept the view that a de facto Occupier has a presumptive prima facie claim over T, this needs to be qualified in the light of the following countervailing considerations: first, how recently the wrongdoing was committed and by whom; second, the costs on the resident group of being removed; third, the costs for members of competing claimants over T not to be given this particular parcel of T.

Note that in taking those costs into account, I am not suggesting that a simpliciter- just allocation of territorial rights should give way to an all-things-considered just allocation—which would cater for the resident group at the expense of the claimant group and vice versa. Rather, those costs are built into territorial justice itself, for excessive as they are, imposing them on either party would wrongfully undermine their prospects for a flourishing life. That said, it may well be that, in fact, it would not be too costly in that sense for residents to be moved off—so long as they would have a suitable resettlement package. Even then, we might not be in a sufficiently robust epistemic position to reach such a judgement. Moreover, implementing such a package might prove so costly to third parties, materially and humanly, that we ought not all things considered do it. In other words, feasibility constraints might be such as to dictate against implementing territorial justice simpliciter and in favour of a justifiedATC territorial compromise.

To recapitulate, rights over resources—whether they are rights over moveable or immoveable resources—are grounded in the importance for individuals, singly or jointly, privately or publicly, of having meaningful control over the material circumstances of their life. So construed, those rights are both justified and constrained by the demands of cosmopolitan sufficientist justice. On this account, a set of individuals who conceive of themselves as belonging to the same sovereign political association jointly enjoy the same incidents of ownership over that association’s territory as they enjoy over their privately owned property—such as the right to use, the right to manage, the power to sell, the right to restrict access, immunity from outsiders’ interference, and so on. This calls for two further comments. First, sovereignty—understood as exclusive authority over residents within a given territory consistent with compliance with cosmopolitan morality—is a form of (political) ownership in that territory. On corporate conceptions of the sovereign, territorially bounded state, this is undoubtedly odd. For on those conceptions, territorial rights are not considered as rights that individual members together have, but as rights that the state has as an artificial person, over time. Such rights are not passed on from one generation to the next: they are constantly held, over time, by the state. At the bar of cosmopolitan justice, however, states are not corporate entities: the rights that they have are in fact rights held by their individual members qua such members, protect the interests of those individuals so understood, and are passed on from one cohort to the next.

Second, while members of political community C cannot be jointly sovereign over T unless they have jointly held rights of public ownership in T as a whole, they can be sovereign over T as a whole and at the same time forego opportunities to own privately all of the resource contained in T, by enabling non-citizens to become property owners. Should they so wish, they could also forego some occupancy rights over T. One might think that such decisions are first and foremost a prerogative of sovereignty—just as it is my prerogative as a house owner to rent my house to some other party and, in so doing, temporarily alienate some of my rights over it. But this is not so: as we saw above, justice imposes limits on agents’ control rights over the material resources which are in their de facto possession. This includes resources such as territory conceived of as whole, and applies to agents qua citizens. Conversely, individuals who are not members of C but who nevertheless reside in T can enjoy ownership and occupancy rights in respect of T’s resources without being sovereign over T. In short, territorial-sovereignty rights over T in toto are not strictly coextensive with ownership and occupancy rights over all of T’s constitutive parts.

  • [1] T. Honore, ‘Ownership’, in A. G. Guest (ed.), Oxford Essays in Jurisprudence (Oxford: OxfordUniversity Press, 1961).
  • [2] See, e.g., J. Christman, The Myth of Property: Towards An Egalitarian Theory of Ownership (Oxford:Oxford University Press, 1994); S. R. Munzer, A Theory of Property (New York: Cambridge UniversityPress, 1990); Waldron, The Right to Private Property. Collective ownership is sometimes defined asownership by a public body which exercises the relevant control over the resource in the interest of all.It is analytically clearer to focus either on how many people have such control or on the ways in whichand ends to which it is exercised.
  • [3] On this particular point, I follow A. Stilz, ‘Occupancy Rights and the Wrong of Removal’,Philosophy & Public Affairs 41 (2013): 324—56; and M. Moore, A Political Theory of Territory (Oxford:Oxford University Press, 2015), esp. ch. 3. (It should be noted though that Moore offers a much moresophisticated account of occupancy, which she thinks is a property of groups—unlike residency, whichshe thinks is a property of individuals. This is an important distinction for any comprehensive accountof territorial justice. But I do not think it matters for my argument in this chapter—and so I speak ofoccupancy to denote both the fact that groups of individuals together occupy a territory qua suchgroups, and the fact that individuals reside on that territory.)
  • [4] The literature on territorial rights has become enormous. In addition to works by Stilz and Moorementioned in the previous footnote, I have greatly benefited from the following: T Meisels, TerritorialRights (Dordrecht: Springer, 2005); C. Gans, The Limits of Nationalism (Oxford: Oxford UniversityPress, 2003).
 
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