Territorial Rights Supersession

I wrote this in 2017 at Washington University in St. Louis, for a graduate seminar in political philosophy that read A. John Simmons’s Boundaries of Authority against Margaret Moore’s A Political Theory of Territory. It is here because it is the clearest example I have of how I argue when the subject is not data. The method is the same one I try to use in technical work. Take the objection seriously, find where the counterexample is disanalogous, and say what is still owed after the argument is won. I have copyedited lightly. Parenthetical numbers are page numbers in the two books, as the assignment required. The paper as submitted stopped after the paragraph on indeterminacy; the closing paragraph is new.

In the book Boundaries of Authority, A. John Simmons proposes a Lockean voluntarist view that he argues provides a more plausible account for territorial rights than the alternative Kantian functionalist, nationalist, plebiscitary voluntarist, and hybrid views. One of the foundational elements of Simmons’ view is the rejection of the idea that rights can be superseded. Simmons worries that views like Kantian functionalism prioritize structural injustice at the expense of historical illegitimacy. That is to say, how a state came to control a particular territory should not be relegated to a status of minimal importance. If a certain group was wrongfully expelled from its territory or a minority group and its territory was wrongfully annexed by a different state, Simmons argues that this seems like a significant morally relevant factor in determining the unjust state’s legitimacy over the boundaries of which it claims jurisdictional authority. I will argue that, contrary to Simmons’ views on historical injustice, an intuitively plausible theory of territory can successfully account for the legitimate jurisdictional authority of a state over a territory that was historically unjustly taken. Specifically, I aim to show that a theory of territory based on political identity and collective self-determination (a view expressed by Margaret Moore in her book A Political Theory of Territory) is immune to the specific objections regarding historically unjust acquisition of territory that A. John Simmons enumerates in his book.

In his chapter on rights supersession, Simmons defines superseded rights as rights that “neither persist through the supersession—they are simply replaced by newer rights—nor leave afterwards a residue that calls for mitigation or apology” (158). Simmons then lists several ways in which the concept of rights supersession might be confused with other separate concepts. One particular distinction that Simmons identifies is that of rights supersession and the concept of rights being overridden. Simmons emphasizes this distinction because he suspects that supporters of rights supersession might actually only support the weaker claim of overriding rights. This is important because, according to Simmons, “no plausible theories of rights—including the Lockean theory [he] has [defended]—deny that genuine moral rights can sometimes be overridden by competing moral considerations” (158). Consequently, if one is actually only a supporter of the idea of rights being overridden, then one might not necessarily be in disagreement with Simmons. Simmons fleshes out the existence of the confusion of the two concepts by arguing that one of the main proponents of rights supersession, Jeremy Waldron, actually only presents an argument that rights sometimes can be overridden. Simmons cites examples of Waldron’s use of the words “‘trumping,’ ‘overwhelming,’ and ‘having priority over’” (158) to demonstrate that Waldron is not necessarily arguing for a true account of rights supersession (as Simmons defines it). Simmons also argues that Waldron’s acknowledgement that “symbolic compensation may be due to descendants of those who were treated unjustly” (159) is inconsistent with the definition of rights supersession (according to Simmons, no moral residue is left behind in rights supersession), and thus Waldron actually does not defend a true account of rights supersession, but only that of rights being overridden.

I believe that Simmons is over-inclusive in attributing certain proponents of rights supersession as actually only proponents of rights being overridden. This is because it does not necessarily follow that just because a proponent of rights supersession believes that some form of mitigation is due to former right holders that the proponent does not actually support rights supersession. Consider the indigenous peoples of the Americas. These peoples had their territory unjustly taken by European settlers hundreds of years ago. If you are American, you and your neighbors likely occupy land that was once occupied by an indigenous people. It seems like it would be unjust for the descendants of that indigenous people, after hundreds of years, to return to your hometown and forcibly kick you and your fellow town citizens out. It could be argued that this is so because other moral considerations like stability and you and your fellow town residents’ interests override the indigenous descendants’ territorial rights. But, it seems counterintuitive to say that the indigenous descendants are the sole territorial rights holders over land that they currently do not occupy nor permissibly could occupy. It seems like you and your fellow town citizens who occupy the territory of your town are the sole possessors of rights of occupancy. This does not mean, however, that the indigenous descendants do not have a right to some form of compensation. In fact, the US government has historically provided certain reparations to Native American tribes—a fact that indicates that Native Americans having a right to symbolic compensation holds at least some degree of intuitive plausibility. Since it seems like, in this scenario, the indigenous people do not have a right to the territory in which you and your neighbors occupy yet they still have a right to symbolic compensation, rights supersession can plausibly occur while leaving behind moral residue. If this is the case, then Waldron’s argument for rights supersession is not actually just an argument in support of rights being overridden, as Simmons asserts.

After arguing for his perceived distinction between rights supersession and the overriding of rights, Simmons attempts to show how rights supersession might seem initially counterintuitive. Simmons cites an example Waldron originally provided of a stolen car (160). Simmons suspects that most people would believe that the original owner has the right to the car, not the car thief or someone the thief gave or sold the car to, regardless of how much time has passed or however many unlawful transactions were made. I do not necessarily disagree with this assessment; however, I find this particular example disanalogous to issues of territorial rights, and thus it is an unconvincing counterexample to rights supersession with regard to territorial rights. Specifically, proponents of rights supersession likely only support rights supersession in cases of territorial rights when a great deal of time has passed since the original unjust taking of territory. When I say great deal, I mean that generations have likely passed before the descendants of the conquering group have full territorial rights. The car thief example is not framed to suggest that the car has been passed down from the car thief through generations. It seems plausible that, especially if the car thief’s descendant’s central interests rely on the car, the car thief descendant might have some sort of right to the car. However, to appease those that view property rights as natural rights (and therefore unlikely to diminish over time), let us suppose that even given generations of separation, the car thief descendant does not have any sort of property right to the car. This still does not disprove rights supersession in the context of territorial rights since it is possible to frame an account of territorial rights that is not based on property. Margaret Moore does exactly this by arguing that people do not own territory, they only hold rights of residency and occupancy (Moore 40). For any theory of territory that is not based on property rights, the scenario of the car thief would be an unsuccessful counterexample since the primary concern of a stolen car is property rights.

The distinction between property rights and rights of residency and occupancy is important in understanding the legitimacy of territorial rights supersession. Moore argues that a right to residency is based on a right to place, not necessarily a right to property. She argues that rights to residency are important because “people form relations and attachments with others in a particular place; our individual plans and pursuits depend on a stable background framework, and this is provided by security of place” (Moore 38). Moore then argues that the collection of these residency rights combined with the cohesiveness of a shared political identity allow for a group to achieve its collective right to self-determination, and therefore have occupancy rights (Moore 40). Moore makes a special point to clarify that these rights cannot be achieved immediately. In order to develop the attachments necessary, this must take a great deal of time. If a people’s particular attachment to land is what is of utmost importance to territorial rights, then it seems at least initially plausible that once that attachment is gone, so does the territorial right start to disappear. Obviously, Simmons is not a proponent of this, but if Simmons is going to provide objections that claim that a theory of territory cannot include rights supersession, then his objections must be applicable to a theory like Moore’s.

Likewise, Simmons focuses his objections to rights supersession on two elements that he thinks most proponents have in their theories: “the changing basis claim” and “the fading basis claim.” Simmons defines the “fading basis claim” as “any plausible basis of the rights themselves will inevitably be weakened by the historic persistence of dispossession” (Simmons 161). Simmons’ particular objection to this element of rights supersession is that the conditions for a right gained do not necessarily need to be symmetrical with the conditions of a right being lost (in this case superseded). This objection applies to Moore, as she argues that, with respect to residency and occupancy rights, when the considerations that ground these rights “no longer obtain, the justificatory argument for the right no longer holds” (Moore 144). Specifically, Simmons suggests that there are certain rights that exist in which the considerations that ground the right do not persist throughout a person’s holding of that right, yet that person does not ever lose that right. The specific example that Simmons uses is promissory rights (Simmons 165). One gains a promissory right against the promiser when the promiser intends to “convey the right to you” (165). However, if the promiser later decides to no longer have that intention, it intuitively seems like the person who received the promise still has a right against the promiser to have the promise fulfilled. If I promised to help Jim study for his math test on the night before the test and at that moment intend to help him, even if when the night before the math test comes around and I no longer want to nor intend to help Jim, I would be violating Jim’s right by not helping him. This example shows that there plausibly exist scenarios in which the conditions for rights acquisition do not need to be symmetrical with rights loss.

This is a strong objection to the particular argument of symmetry that supports general rights supersession. However, just because there exists one instance of rights that does not conform to the symmetry argument does not mean that all rights do not need to conform. Specifically, Moore’s theory of territory does not rely on a general theory of rights supersession (pertaining to all rights that exist) being plausible, only that certain territorial rights can be superseded. Since this is the case, the scenario regarding promissory rights is disanalogous to the situation of territorial rights. There is a temporal limitation to the promissory rights scenario that is not present in territorial rights. In the scenario above, once I wrong Jim by not helping Jim, Jim’s right has been violated and that is the end of the situation. Jim no longer has a promissory right against me because the only timeframe in which the promise could be fulfilled has already happened. I might have some obligation to make it up to Jim, but Jim still no longer has that promissory right and he never will again. With territorial rights, once a people’s territorial right has been violated by wrongful expulsion, the people then have a corresponding right to return, which means that their territorial rights continue to exist past the violation, unlike with Jim and me. Depending on how unjust the original expulsion was and for how long the original group does not occupy that territory, the right to return persists. If generations pass and the new people have developed rights of residency and occupancy, then they now have territorial rights over that territory and the original group does not. This does not mean that the original group is not owed compensation or a form of rectification, just that the compensation does not have to be a right of return.

Simmons also seems to be concerned with the moral hazard that seems to be inherent in rights supersession. Specifically, if a group could wrongfully expel a different group from their territory and claim it as their own and know that if they stay long enough to achieve the conditions for residency, occupancy, and shared political identity, there seems to be a perverse incentive for groups to wrongfully violate other groups’ territorial rights. Waldron seems to acknowledge that moral hazards are an unfortunate consequence of rights supersession without saying much else on the matter. Simmons correctly points out that this response seems to be lacking. Moore goes beyond Waldron’s simple acceptance of the moral hazard and suggests that while the moral hazard is an unfortunate but unavoidable consequence of rights supersession, it is not fatal to the argument, and with respect to territorial rights, institutional mechanisms can be created to mitigate the negative consequences of the moral hazard. Moore suggests that because of this, there is “very strong reason to develop norm-governed international institutions which condemn the practice of settlement, understood as typically involving the deliberate eviction or expulsion of a group” and that “the temporal dimension” for a wrongful group’s ability to achieve rights of occupancy “will be much longer if it’s clear that the settlement is illegal in international law and deeply contested” (151). It seems likely that having international laws and norms, such as those described by Moore, would disincentivize wrongful territorial acquisition and thus counter any perverse incentives.

Finally, earlier in the book, when referring to rights supersession in the context of nationalist views, Simmons argues that it is important for any theorist that relies on rights supersession to be able to explain “exactly when and why rights go away and appear, how soon and for what reason victims lose their claims to restitution or reparation, and wrongdoers (or their heirs) gradually acquire claims to ill-gotten gains” because this “is a matter of significant theoretical and practical importance and great theoretical difficulty” (Simmons 106). He adds that “most of those who centrally rely on claims about rights supersession do little more than gesture at the phenomenon” (106). However, a proponent of any territorial theory that relies on some form of rights supersession does not need to commit to or explain at what point in time a right has been superseded. It is true that cases might exist in which territory at some point in time was wrongfully seized and it is currently indeterminate as to who has the stronger jurisdictional right (the original people holding jurisdictional rights versus the unjust aggressors). This, however, does not serve as a counterexample that threatens the legitimacy of rights supersession. All it shows is that the exact calculus for determining at what point in time a right becomes superseded is difficult to determine and perhaps something over which reasonable people might disagree.

Simmons is right that a theory which leans on rights supersession owes an account of what supersession is and why it is not merely overriding. What I have tried to show is that the account is available, and that his objections reach a general theory of superseding rights without reaching the narrower claim a theory of territory needs. The indigenous-descendants case separates supersession from overriding while leaving moral residue behind, the stolen car is a case about property and not about place, the promissory right dies at the moment it is violated while a territorial right gives rise to a right of return that persists and then fades, and the moral hazard is real but answerable by institutions. If a right of occupancy is grounded in the attachments of the people who live somewhere, then a theory that lets that right pass, slowly and with something owed, to the people who now live there is not a concession to injustice. It is the theory taking its own grounds seriously.