CEP Colloquium: Kok-Chor Tan

International Territorial Right: An Institutional Account

Abstract: A state’s territorial right has two dimensions. There is the local dimension, which pertains to a state’s jurisdictional authority. This is the right of the state to subject individuals within its territory to its laws. The other is the international dimension, which has to do with the right of a state to a specific geographical space (within which it gets to exercise its jurisdictional authority) that other states have to acknowledge and respect. I will call this the international territorial right of states. Recent theories of territoriality mostly hold that a state’s international right flows from its jurisdictional authority. That is, these theories take it that when a state is justified in exercising authority over individuals within a given territory, other states come under an obligation to respect its exclusive claim to that territory. But I suggest that this privileging of the local dimension over the international gets the reasoning backwards. To the contrary, a state must first have an acknowledged international right to a territory before it can have an exclusive dominion in which to exert its jurisdictional right. More substantively, I argue that this international right is not a pre-institutional right, but a right that is based in international convention or institutions. That the international order is institutional in this very fundamental way has implications for global justice. Among other things, it will instigate a more cosmopolitan understanding of egalitarian justice and immigration.