THE MYSTERY OF TERRITORY
Seminar with Professor Fernando R. Tesón
Recent philosophical scholarship on the territorial rights of the state has emphasized collective ownership of land and resources. Professor Tesón challenges those views. He argues that all territorial rights of the state derive, morally, from individual rights in land. Following Locke, the article argues that persons have natural rights to property. These rights are substantive (the right to use and transfer land) and executive (the right to exclude trespassers). The state does not have original title to land, but only delegated executive rights. They are mere jurisdictional powers, not ownership rights. The state has the power to regulate, define, and enforce property rights, but does not own land itself. Moreover, the state has an obligation to use its coercive power in a manner consistent with this fact. This view is seriously at odds with international law, which grants excessive powers to states over territory by allowing them to expropriate individuals at will. International law is morally deficient in this regard. Professor Tesón therefore recommends a radical reformulation of the state’s territorial rights.