Functionalism and Unilateral Annexation: the Problem and a Solution

Functionalist theories of territorial legitimacy have long been criticized for their inability to explain why states that perform morally imperative functions may still lack legitimacy in relation to unilaterally annexed territories. While currently popular solutions to this problem tend to rely on some notion of collective self-determination to explain the distinctive wrongness of unilateral annexations, this article argues that annexing states’ illegitimacy can alternatively be grounded in the principle of ex injuria jus non oritur, which identifies states’ unjust ascent to dominance as a distinct injustice. Thus understood, I suggest that the problematic feature of functionalism is best interpreted as a problem about rectifying historical injustices. I argue that adequate respect for the victimhood of those injured by historical injustices demands a rectificatory scheme that, under certain circumstances, permits individual holdouts against the majority’spreference for rectifying the injustices committed in the course of annexation.