Are state borders legitimate?
This piece was written as coursework for my LLM in Human Rights Law at Queen's University Belfast. A Philosophical Response to the statement “All state borders are morally arbitrary".
The term “morally arbitrary” is defined as something that lacks the moral backing that evokes legitimacy, and therefore is arbitrary, “based on a desire or idea or chance” (Cambridge English Dictionary, n.d.) rather than on a morally legitimate reason. Therefore, the statement is arguing that the creation of state borders is not based upon, or inclusive of, morally legitimate reasoning and therefore is illegitimate.
This statement presents three main premises. The first is that state borders must be legitimate in order for a state to claim sovereignty. The second is that legitimacy comes from moral reasoning, and the third is that all state borders are morally arbitrary. These arguments can be broken down logically as such:
P1: Legitimacy comes from moral reasoning.
C1: Therefore, something that is morally arbitrary is illegitimate.
P2: State borders must be legitimate in order for a state to claim sovereignty.
P3: All state borders are morally arbitrary.
C2: Therefore, all state borders are illegitimate.
C3: Therefore, no state can have sovereignty.
This essay will focus on these three main premises, in turn, then conclude by addressing the main argument as a whole. The thesis presented in this essay agrees that a state must be legitimate and have legitimate borders for sovereignty yet argues that instead of legitimacy coming from moral reasoning, legitimacy comes from the majority population’s acceptance of the state, as well as through the state power and dominance.
Does legitimacy come from moral reasoning?
The first premise concerns the question of whether or not legitimacy comes from moral reasoning. Legitimacy is defined as “the quality of being reasonable and acceptable” (Cambridge English Dictionary, n.d.), expressed usually by adherence to legal and societal norms. Political legitimacy is the “popular acceptance of a government, political regime, or system of governance” (Blatter, 2007). To explore whether or not this legitimacy comes from moral reasoning, the current existence of legitimate states must be addressed.
If legitimacy came from moral reasoning then states that were created immorally, such as through invasion, war, territory grabbing and/or colonialism, or act immorally with their sovereignty, such as dictatorships, would be illegitimate. States like this exist today and are considered legitimate (Magdoff, 2020), i.e., their governance is accepted, both on the global stage and nationally, illustrated by the lack of continued uprising and recognition by other global actors, despite their immoral standing. Therefore, if legitimacy came from more reasoning these states wouldn’t be legitimate, and their power and authority wouldn’t be recognised either nationally or internationally. This in reality is not the case (Magdoff, 2020), therefore it can be concluded that legitimacy cannot be derived from moral reasoning.
If legitimacy does not come from moral reasoning, the source of legitimacy must be explored to analyse how state sovereignty becomes and remains legitimate. Theorists suggest that legitimacy may come from territorial rights which have been claimed through investment in the land or original ownership of the land (Stilz, 2009), or through the general population’s consent expressed through the social contract theory (Laskar, 2013). The Entitlement Theory presented by Nozick claims that there is a natural entitlement to land for those who were the first to occupy that land or for those who developed the land significantly (Mack, 2018). According to this premise, states could only claim legitimate sovereignty if they met this criterion. States which have conquered, or colonialism would therefore be illegitimate unless they made significant developments on the land to sustain it. Most recognized states today became states through conquest or invasion (Kontorovich, 2009), meaning they would be considered illegitimate based upon this theory, as the mere existence of corrupt states and recognition of their status contradicts this. Using this theory as a basis, the extent of development and technological progress conducted by immorally gained states could legitimise their sovereignty, such as in the UK which is notorious for its colonialism (Dreyer, 2008) yet has become a world leader due to the significant development of the nation. Using Nozick’s reasoning here, this would ameliorate the legitimacy of its sovereignty.
Similarly, the Lockean view sees territorial rights as natural rights gained through the labouring on and development of the territory (Moore, 2020). Locke sees state sovereignty over a specific territory as legitimate only if individual citizens evidently have natural territorial rights with their own agency to develop the land and have consensually conferred the state the jurisdiction and authority to govern over the existing territory (Moore, 2020). This consent can be expressed inexplicitly through cooperation with and acceptance of the state’s existence through abiding by laws, paying taxes and operating within the norms set by the society arguing that an individual’s very inhabitancy within a state implies their consent to be governed by the state (Moore, 2020). Locke views the inhabiting people as the natural owners who have given the territory to the state, rather than the state being the original owner (Moore, 2020). This is further expanded by Stilz, who clarifies that territory within a state, even if gained legitimately, is the property of the population of that state rather than the private property of the government (Stilz, 2009). She proposes that the state acts as a managing agent of the territory, rather than a legitimate owner (Stilz, 2009). This relates to this paper’s thesis that instead of moral reasoning, legitimacy comes from recognition and power.
The Social Contract Theory describes the consent given to states by the population to be ruled over in exchange for legal protection (Laskar, 2013). Arguably, this is what gives states true legitimacy, in conjunction with the overall population’s continued acceptance of the status quo. If this stands to be true, then the legitimacy of a state can be questioned when the population doesn’t consent to be ruled, such as in an uprising like the Arab Spring or in a dictatorship such as North Korea. This paper argues that this legitimacy comes from the majority population’s acceptance of the state, as well as through the state power and dominance. Whether or not a state’s sovereignty is legitimate can be illustrated through whether or not the state is accepted as a system of authority. This acceptance can be assessed through a nation’s participation in general society or involvement in protesting mechanisms such as uprisings. It can be assumed that a state with societal functioning can be seen as legitimate by the people and one in which the people are revolting, and uprising can be deemed as illegitimate as the state is not accepted by the people.
Kant rejects the concept of the social contract theory as he claims that the people, as a collective, never had territorial rights and therefore could not give them up (Stilz, 2009). The Kantian view recognises a state’s legitimacy only if the state is implementing law that guarantees the people residing within the states’ most basic rights and is not a usurper (Stilz, 2009). As many modern-day states were usurpers (Magdoff, 2020), this disqualifies their legitimacy, making very few states legitimate based on this premise. Yet, the implementation of basic human rights relates to the provision of safety and protection required within the Social Contract Theory as the trade-off of freedom and self-determination, for public order and security. Kant does recognize the need for a state to have authority over territory in order to provide safety and order, claiming that “state jurisdiction is essential to individual freedom and the peaceful enjoyment of the property” (Stilz, 2009). He sees the Social Contract Theory as a tool upon which to analyse the state’s legitimacy through their implementation of the law (Stilz, 2009). Using this logic, a state must recognize and guarantee all basic rights through law, for example, through ratification of the Universal Declaration of Human Rights and incorporation of it into national law.
Are all state borders morally arbitrary?
The next premise that must be addressed is that state borders are morally arbitrary. One of the most relevant viewpoints for this discussion is Cosmopolitanism, the view that nationality and citizenship are morally irrelevant.
Cosmopolitanism doesn’t necessarily advocate for the eradication of national borders, instead, its main premise would be the advocation of global governance in lieu of national sovereignty (Moore, 2020). Global issues, such as the COVID-19 pandemic and global warming, transcend borders and therefore authority must also transcend. The creation of international organisations, such as the United Nations and the International Criminal Court, exemplifies this leading to argue that state borders are morally arbitrary. Agnew argues that “effective sovereignty is not necessarily predicated on and defined by the strict and fixed territorial boundaries of individual states” (Agnew, 2017). The agency of international organisations would support this argument; however, states still hold more authority in terms of sovereignty. States can choose to participate in these international organisations or not, to ratify treaties or not, meaning that they still hold the ultimate power. This power is not necessarily tied to the borders of the state, yet by having clearly defined territory it encompasses where the state's sovereignty falls, therefore arguably, borders are important to sovereignty but not necessarily required for it.
Do state borders have to be legitimate for sovereignty?
The last premise ties the previous two together by exploring whether or not state borders must be legitimate for a state to have legitimate sovereignty. Sovereignty is defined as “the power of a country to control its own government, hold the supreme authority within a territory and be the ultimate overseer in decision making of the state” (Cambridge English Dictionary, n.d.). Agnew argues that there is a difference between de jure sovereignty, that which has been explicitly granted and legally secured, and de facto sovereignty, which is has been assigned by default yet not recognized by law (Agnew, 2017). Agnew insists that in reality de facto sovereignty is the only existing type (Agnew, 2017). This would align with the Lockean view previously stated that inhabitancy of territory implies consent, as well as the implicitly of consent in the Social Contract Theory, yet the Kantian view that basic rights must be legally secured for a state’s sovereignty to be legitimate aligns more with de jure sovereignty. This paper argues that both exist, yet only de facto sovereignty must exist for state sovereignty to be legitimate. If legitimacy is displayed through the acceptance and recognition of the state’s authority both nationally and globally, then legal standing of basic rights helps to authorize the state but is not required illustrated by the recognition of states which do not legally guarantee basic rights such as North Korea (Freedom House, 2021).
The relationship between sovereignty and territory is heavily tied to territorial conflict, both within the state and between states. State borders should be both internationally and nationally recognised for a state’s society to function successfully, yet if legitimacy is based upon acceptance as claimed above, then many real-world cases question the legitimacy of state borders. Taking Northern Ireland and Israel/Palestine as examples, which have been subject to civil wars and disputes based on the conflict of acceptance and non-acceptance of the state borders by the inhabiting population (Miller, 2010). If illegitimacy is expressed through uprisings and revolt, as claimed above, then The Troubles and the Intifadas would illustrate non-consent to the states, which using this essay’s premise signifies illegitimacy. Yet using the same logic, the modern-day calming of the storm in each of the states would signal implicit de facto consent to be governed and thus would legitimise the states. Therefore, it can be concluded that legitimacy is fluid and can change based on the civil peace or unrest presented, meaning that state borders could in fact, indirectly, impact the state’s legitimacy in sovereignty.
Agnew argues that sovereignty isn’t necessary constricted to political or civic bodies, instead can be manifested in non-political agents such as religious organisations, corporations or other powerful entities (Agnew, 2017). These entities aren’t always tied to a particular territory and instead may be transnational. This claim can be explored through analysing increasing globalisation and the move of power from states to corporations. The modern-day increasing rates of globalisation leans towards a cosmopolitan approach (Woodward et al., 2008). Multinational corporations, such as Google or Amazon, have more GDP and influence than the government would in some countries (Francis, 2016), with a transnational reach that transcends borders. This signals a change in authority and power, from states to multinational corporations. Therefore, if the premise stands of power, influence, authority and resources making a state’s sovereignty legitimate, the fact that these factors may be greater in a corporation denounces the legitimacy of the state in question’s sovereignty, suggesting that state borders are irrelevant to authority in sovereignty.
The statement “all state borders are morally arbitrary; therefore, no state should have sovereign control over its territory” argues that all state borders are morally arbitrary, that state borders must be legitimate in order for a state to claim sovereignty, and that legitimacy comes from moral reasoning. In this essay, I have explored these premises in turn and conclude by confirming my thesis that a state must be legitimate and have legitimate borders for sovereignty, yet instead of legitimacy coming from moral reasoning, legitimacy comes from the majority population’s acceptance of the state, as well as through the state power and dominance.
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