The Right to Non-interference by Persons, Groups or States outside

the rights against persons, groups, and states outside the legal jurisdiction of the state.110

8.2. The Right to Non-interference by Persons, Groups, or States outside the State’s Jurisdiction

The state claims the right not to be interfered with by persons, groups, or states outside its legal jurisdiction in the exercise of those rights claimed in the first category. The state claims rights to non-interference, self-determination, self-government, or external sovereignty. The state’s right to non-interference by other persons, groups, or states outside its jurisdiction in the exercise of its first-category legislative and executive rights is substantiated in international relations by the state’s recognition of the exercise of the legislative and executive powers of others within their jurisdiction.111 Crucially, this right of the state is an aspect of its moral relation to others based on the assumption of the equality between states.112

A legitimate state’s claimed legal jurisdiction or sphere of privilege is presumably one within which it could exercise its first-category legislative and executive powers without violating any claim of other persons, groups or states since they have no claim to legislate and enforce laws on persons within a legitimate state’s claimed legal jurisdiction.

Plausibly, too, a legitimate state would have a claim against other states that they do not interfere with its governing within this sphere of privilege. This means that it would have a claim that it not be interfered with in governing its residents and territory.

Thus, a legitimate state does not merely have a privilege to govern those within its claimed legal jurisdiction; it has a “protected privilege,” a privilege that is protected from interference by the duty of others to respect the states’ exercise of its first-category legislative and executive rights113, as well as Locke’s federative “power of… peace, leagues and transactions with all the persons and communities without/outside the commonwealth”(II, 146).

The need for peaceful and cooperative relations with other states has become even more important in an increasingly technologically, economically and politically interconnected global world that requires the concerted efforts of both state and non-state actors to solve problems that go beyond the boundaries of the nation-state (i.e. international terrorism, insecurity of financial markets, global warming, and its effects of drought and famine, cross- border drug and human trafficking, global pestilences like bird flu etc.).

It is also because of the need for peaceful and cooperative relations with other relations that it is sensible to attribute to a legitimate state the immunity-right to having any of its rights extinguished by any action of any other state using force, or for that matter, by any group or

110

Simmons, “On the Territorial Rights of States,” pp. 305-6 111

Ibid., p. 306. 112

D.D. Raphael, Problems of Political Philosophy, p. 160. 113

person outside its claimed legal jurisdiction. If its rights could simply be extinguished, they would provide no moral protection. For example, if its claim to non-interference could be extinguished by another state, it would not be a significant barrier to interference.

The sovereignty of a legitimate state is its immunity to having its exercise of its first-category legislative and executive rights within its legal jurisdiction as well as its federative power in its relation with other states extinguished by any other states, through the use of force, plus its claim against other states that they not interfere with its governing its residents within its claimed legal jurisdiction. The only exception to this is when states are allowed to intervene on humanitarian grounds, with the support of the United Nations Security Council, to allow states to address a disaster caused by a state’s grave and large scale violation of fundamental human rights and thus fulfil the duty to support the justice of a state as well as its citizens. It is also worth adding that a legitimate state presumably also has the moral power to modify and perhaps to limit the exercise of its own legislative and executive rights over a range of affairs by giving up part of these rights to a higher authority of a supranational organization such as the European Union through membership of the union. For example, members of the European Unions have altered by treaty their rights to control movements across their borders.114

8.3. The Right to Control a Particular Geographical Territory.

We mostly think of a state’s territory, of course, in largely positivist terms. Thus, a state’s territory is that portion of the earth’s surface acknowledged to “belong” to the state by the “world community” or by an appropriate international agency115; or, following Weber, we think of a state’s territory as the area in which it has a monopoly on the ultimate use of force. But such accounts either ignore altogether or merely push one step back questions about the moral bases for a state’s claim to that portion of the earth’s surface in which it does in fact exercise largely unchallenged control. And we know that the actual means by which any existing state has established its territorial claims have largely been through coercion.

Therefore, though it might seem that political philosophers should leave to one side questions about the legitimacy of states’ territorial claims for it to accommodate itself to the real world if it is to avoid reasonable charges of utopianism, we should not simply accept as a datum for political philosophy the basic and virtually unchallengeable fact that the world is made of states that have territories. On account of the origin of most modern states, the territorial claims that modern states make are often controversial, contested and plainly unjust.116

A legitimate state, therefore, would have more than simply a positivistic jurisdiction that consists in a complex non-moral historical and sociological fact about the territory and the relationships among its residents. It would have a moral jurisdiction or authority over its territory and over subjects within its territory. There are at least three aspects to this.117

114

Ibid., p. 27. 115

Simmons, “On the Territorial Rights of States,”p. 303. 116

Ibid. 117

To begin with, a state is territorial in the sense that it imposes and enforces its law on all those who reside within its territory. Though a state normally claims some, typically partial, jurisdiction over persons outside its territory (for instance, its citizens abroad or those who have committed crimes against their citizens). In addition a state claims only limited jurisdiction on non-residents (for instance diplomats or visitors). A legitimate state would have the moral authority to impose and enforce its law on largely all those within its territory. Second, states presume that their authority over their territory includes rights to full control over land and resources within the territory that are not privately owned. This right presumably includes the privilege to enact a regime of property law, including laws governing the transfer of property, prohibiting the use of force or fraud.

States also presume that their authority over their territory includes rights to tax and regulate uses of property which is privately owned within the state’s claimed territory. This is based on the recognition of the limitation to private property rights. A legitimate state would have a privilege to enact and enforce laws restricting owners’ use of land, laws regulating the exploitation of mineral resources, laws restricting dangerous activities in populated areas, and so on in order to protect its territory and its resources for posterity, as Rawls reasons.118

A further respect in which states are territorial is that they claim to have the right to control access to their territories across their borders (which, of course, involves as well certain quite direct rights against persons outside their claimed legal jurisdiction from our second category of rights). For our notion of a state is of a thing that governs a bounded territory and that does at least claim to have the privilege to control access to its territory.

At this point, we are only concerned with what legitimacy would consist in, and our claim is that a legitimate state would have a privilege to control movement across its borders. But we have not shown how the state’s privilege to control movement across its borders can be taken to be morally justified at all relative to the first and second categories of rights.

It is therefore important to show how the three categories of rights claimed by the state might be taken to be justified relative to one another. There is need to demonstrate the nature and basis of the state’s rights to rule its members and territory without interference. For this purpose we are going to claw back to the societal needs justification of the state’s right to rule that has its origins in the functional legitimacy of the state.