Ecological Refugees, States Borders, and the Lockean Proviso1

Cara Nine, c.nine@ucc.ie

Ecological refugees are expected to make up an increasing percentage of overall refugees in the coming decades as predicted climate change related disasters will displace millions of people. In this essay, I focus on the rights of ecological refugees. In particular, I focus on what rights ecological refugees may claim to collective self-determination. To this end, I will focus on a few specific cases that I call cases of ‘ecological refugee states.’ Tuvalu, the Maldives, and to a certain extent, Bangladesh are predicted to be ecological refugee states in the near future. These are states whose entire (or close to it) geographical territory is predicted to be lost to rising sea levels; the collective body of the people will itself become an ecological refugee.

In this essay I assume that, (1) the people of currently existing, legitimate states have a collective right of self-determination,2 and (2) that the loss of existing territorial domain due to

1

Work on this essay was supported by the Irish Research Council for the Humanities and Social Sciences, the Arts

and Humanities Research Council, and the College of Arts, Celtic Studies, and Social Sciences at University College Cork. I owe thanks to Allen Buchanan, Chris Bertram, Tami Meisels, David Schmidtz, Leif Wenar, and the editors and anonymous referees of this journal for their helpful comments.
2

On self-determination and its relationship to legitimate states: “By the right of ‘self-determination’, I mean the

right to acquire or continue to posses the status of a state” and a state exists when “a legal system is in force over the population of a territory, when a government exists with the legal power to alter the legal system, and when the government, together with other agencies over which it has legal authority, has (relatively) effective control

Electronic copy available at: http://ssrn.com/abstract=1645824

ecological disaster does not eliminate this right of self-determination. I do not think that these assumptions are controversial. The former follows by definition of ‘self-determination’ and the term’s non-controversial application to the people of existing legitimate states, and the denial of the latter would be morally arbitrary.

The question is: what may the people of an ecological refugee state legitimately claim on the basis of their right to self-determination?

Can they, on the basis of their right to self-determination, claim a right to a new territory? In this essay I focus on answering this question specifically. I ask questions about cases: Should we redraw state borders to accommodate a New Tuvalu? I argue that a plausible position regarding territorial rights is that when (1) a people clearly is (or recently was) selfdetermining and has a legitimate claim to continue to be self-determining, and (2) the selfdetermination of a people is existentially threatened because the people lacks territorial rights, that (3) the people becomes a candidate for sovereign over a new territory.3 The result is that existing state borders may need to change to accommodate something like a New Tuvalu.

over the territory.” (Copp, David, ‘Democracy and Communal Self-Determination’ in Robert McKim and Jeff McMahan (eds.) The Morality of Nationalism (Oxford: Oxford University Press, 1997), p. 278). See also the International Covenant on Civil and Political Rights; Article 1 states: “All peoples have the right of selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
3

The use of the term ‘sovereignty’ is controversial as it has been used to indicate a state’s ultimate authority

within its territory against competing authorities such as international law or international political organizations. I do not mean to endorse this use of the word here. My use of sovereignty has two implications, (1) in an internal domestic sense—to indicate which political group has determinate jurisdiction and authority to establish justice within a region—understood in contrast to competing internal domestic groups, such as minority groups, and (2) in

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To generate these results on behalf of ecological refugee states, I examine the principles of the system of territorial states. Because the system of territorial states is a system of exclusive rights over goods, especially land, it is possible that it is subject to the conditions of a Lockean proviso mechanism. This paper is dedicated mainly to adapting a version of the Lockean proviso for use in territorial rights theory. First, I argue that the Lockean proviso mechanism applied to territory should be employed to protect the interests of self-determining groups. Second, I develop a version of the Lockean proviso appropriate for use regarding territorial entitlements—I argue that the proviso mechanism applied to territorial rights should not be interpreted as a constraint on the acquisition of rights over territory, but rather it should be understood as a restraint on current territorial holdings. Finally, I develop some suggestions from the Lockean proviso mechanism regarding the location and conditions involving the establishment of something like New Tuvalu.

As a preliminary note, it has been argued on egalitarian grounds (such as common, equal ownership of the earth) that in cases like ecological refugee states, these groups should be treated as a candidate for sovereign over some territory as a matter of a principle of equality.4 Matthias Risse argues in a similar vein that individual ecological refugees are owed immigration and resettlement rights on the basis of individual common ownership rights of the earth.5 However, my argument here differs in that I do not start from a point of egalitarian distribution of entitlements. Instead, I take up a more conservative position that allows for unequal entitlements over territory, and I argue that from this starting point, with the use of a

an external sense—to indicate that foreign and international powers should appropriately respect the state's authority to establish (1).
4

Chaim Gans, A Just Zionism – On the Morality of the Jewish State (New York: Oxford University Press, 2008). Gans does not talk specifically about ecological refugee states, but Tamar Meisels draws this conclusion from Gans’s arguments. See Tamar Meisels, Territorial Rights, second edition (Netherlands: Springer, 2009), Chapter 5. 5 Matthias Risse, '‘The Right to Relocation: Disappearing Island Nations and Common Ownership of the Earth', Ethics & International Affairs, 23 (2009), 281-300.

Lockean proviso mechanism, there is sufficient reason to believe that an ecological refugee state should be treated as a candidate for sovereign over some territory.

The Lockean proviso and Territorial Rights

An ecological refugee state is a state whose entire territory is lost to ecological disaster. Currently, a state facing such disaster is Tuvalu. Leading scientists predict that over the next century the small island nation of Tuvalu, located north of New Zealand, will almost entirely submerge under rising ocean levels. Tuvalu’s territory that is not lost to the sea will be uninhabitable due to saltwater intrusion contaminating drinking water and agricultural lands. Tuvalu is not alone, although it is the most immediate case of an imminent ecological refugee state, a state whose territory is wholly destroyed by ecological disaster.

In this section, I argue that an imminent threat to the self-determination of a people, as in the case of ecological refugee states, activates a version of the Lockean proviso applied to territorial rights. The result is that the ecological refugee state is a candidate as sovereign over some other land even if they have no historical claim to that land. First, I argue that the Lockean proviso applied to territory should be employed to protect the interests of selfdetermining groups. Second, I argue that the position that ecological refugee states are candidates for sovereign over some territory, even if that territory is already under the jurisdiction of another state, is supported by several different interpretations of the Lockean proviso adapted to fit territorial rights.

The Lockean proviso and Self-Determination.

In this section I explain how the Lockean proviso applied to territorial rights should, at some level of analysis, be about groups rather than about individuals.

The original Lockean proviso is a limit on property rights. Property rights are not territorial rights. However, to understand how to apply the Lockean proviso to territorial rights, we must understand what conditions trigger the Lockean proviso in the property case. Elsewhere, I defend the position that a Lockean theory of territorial rights should be understood as a collectivistic theory, and that a territorial right is held by a collective; territorial rights are not conceptually nor normatively dependant on property rights.6 Here I explain how the Lockean proviso can be applied to collective territorial rights. I use the property rights analysis of the proviso only as an analogy to better understand the proviso's function as a limitation on rights to goods.

Property rights aren’t inherently justified, at least not on a traditional Lockean theory of property rights. Property rights are justified on the basis of some other value(s). On threat of becoming self-defeating, the Lockean proviso is triggered at least when the object(s) of these foundational values is threatened. For Locke, a system of private property rights is justified because of its ultimate benefit to humankind. Locke expresses the motivation behind private property rights to land through his articulation of the law of nature. The law of nature imposes on us a duty to undertake actions which tend to preserve humankind.7 Certain ways of using (or not using) the land will tend toward preservation. Certain ways of articulating rights to land will encourage or make possible this more beneficial use of the land. Therefore we should articulate rights to lands in ways that encourage and make possible its beneficial use towards the preservation of humankind. This is one reason why an institution of private property rights is justified. A necessary condition for the justification of the institution of private property is that it results in a pattern of land use that promotes the preservation of humankind.

6 7

Cara Nine, 'Territory is not Derived from Property: A Response to Steiner', Political Studies, 56 (2008). John Locke, 'The Second Treatise of Government', in Two Treatises of Government and A Letter Concerning Toleration (New Haven, CT: Yale University Press, 2003 [1690]), Chapter 2, Sec. 6.

We have a duty of natural law to preserve humankind. Locke uses this law as part of a justification for property rights. A basic and natural reading of the Lockean proviso, then, is that when the holding or acquisition of property rights unnecessarily threatens human life, we should change something about property dispositions to avoid the unnecessary death caused by these property dispositions.8 The Lockean proviso is a mechanism that works within theories of exclusive rights over goods. The mechanism works to ensure that the rights do not leave agents who are excluded from the goods disadvantaged, in a way relevant to the system of exclusive rights over goods. That is, an exclusive right over goods is justified because the right protects and promotes some value(s). According to the Lockean proviso mechanism, when those value(s) that the right is meant to protect and promote are threatened by the exercise of the right, then the right should be changed so that it no longer undermines those values.

8

This use of the Lockean proviso is consistent with many different interpretations of the same. For example, the

Lockean proviso as I am using it here could be generated from an ‘enough and as good’ clause in the Second Treatise (Chapter 5), or it could come from what Waldron calls a natural right of charity articulated in the First Treatise (Jeremy Waldron, 'Enough and as Good Left for Others', Philosophical Quarterly, 29 (1979), 319-28). We could make the latter consistent with my use of the Lockean proviso by explaining the natural duty of charity as derived from the law of nature. It is also consistent with Nozick’s interpretation of the proviso as determined by ‘considerations internal to the theory of property itself,’ (Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 180), although I don’t have space to argue this here. For a good discussion of different applications of the Lockean proviso to the case of territorial rights, see Meisels, 2009, op. cit. I only mean to specify what are the minimum requirements advocated by the triggering of the Lockean proviso. Other theorists may want to make the requirements stronger.

This makes the Lockean proviso an example of a more general rule regarding theoretical and practical consistency. Or, as Locke puts it: “The same law of nature, that does by this means give us property, does also bound that property too.”9

To summarize, the Lockean proviso mechanism, as I am developing it here as an adaptable theoretical/practical tool, can be articulated as the following rule:

When the exercise of an exclusive right over goods severely threatens the value(s) that are used to justify the right (or system of rights or which it is a part), then the right should be changed so that it no longer undermines those values.

Adapting this understanding of the Lockean proviso to territorial rights requires that we identify the values upon which territorial rights are founded.

A territorial right describes a relationship between the right-holder and a geographic region. The central function of a territorial right is to give the right-holder the power to establish justice within a particular region. A territorial right is first and foremost a right of political authority. The holder of a territorial right has the moral and political authority to establish justice—to establish a determinate jurisdiction—within a particular geographical region. A jurisdiction is a legal domain where a certain set of legal rules applies and a certain agency or agencies have authority to make, adjudicate, and enforce those rules. The holder of a territorial right is an independent and autonomous power within its territory.10

9

10

Locke, Chapter 5, Sec. 31., op. cit.
Allen Buchanan, 'Boundaries: What Liberalism has to Say', in States, Nations, and Borders: The Ethics of Making Boundaries

(Cambridge: Cambridge University Press, 2003), pp. 233. The state has, for the most part, determinate legal and political jurisdiction within its state borders. There are exceptions to this rule. International treaties often limit what a state can do even

A justification for territorial rights must be a justification for a system of rights to land held by groups that protects group autonomy in establishing justice within a geographical region. Essentially, territorial rights establish a practical foundation upon which a group can exercise its right of self-determination. The right of self-determination is the right of selfgovernment. A group is self-governing if it has the independent and determinate political control over some important aspects of its members’ common life. Self-determination requires both autonomy and independence. The self-determining group is autonomous—it has the ability to govern itself by adjudicating, legislating, and enforcing laws on its own, and it is independent—it has a domain of political control independent of higher or foreign political units to which the group’s self-made laws are subject to being overridden or revoked.11

If we understand ‘preservation of humankind’ as a foundational moral mandate for property rights, then ‘the establishment of justice through the preservation of self-determining groups’ is a foundational moral mandate for territorial rights.

There is some controversy regarding the best understanding of self-determination. Many theorists from different theoretical traditions argue that the unique self-determination of people's is important.12 In contrast, Allen Buchanan claims that the concept of selfdetermination, at least as it applies to territorial rights, is essentially about the establishment of objective standards of justice within a region. On this view, if as the result of a great ecological disaster, all of the Pacific Islanders had to immigrate to Australia, and Australia treated these

within its own borders, and treaties concerning border issues may give neighbouring countries limited jurisdiction

within a bordering state.
11

Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), p. 333. 12 See, e.g., Margalit and Raz 1990, David Copp, 'Democracy and Communal Self-Determination', in The Morality of Nationalism (Oxford: Oxford University Press, 1997), pp. 277-300; David Miller, On Nationalism (Oxford: Clarendon Press, 1995), pp. 85-87; Daniel Philpott, 'In Defense of Self-Determination', Ethics, 105 (1995), 357.

immigrants justly, nothing of value regarding self-determination would be lost.13 By contrast, I assume that the self-determination of a group is unique to that group. For a group to be selfdetermining, they must have some sense of internal identity that is uniquely advanced by the self-determining powers of the group. I mean this in a very broad sense, in a way that doesn't presuppose nationalist or cultural homogeneity within the group itself. There are many senses with which we could explain the uniqueness of a group that is advanced by their selfdetermining status; the concepts of public reason and of democratic association are two options that are not reliant on cultural homogeneity of the group. All that I mean to capture in this assertion is that, it is more natural for us to say that the Pacific Islanders have lost something of value in the loss of their unique self-determining status, even if they are granted immigration into a state that treats them justly than to adopt a concept of self-determination related to territorial rights (like Buchanan's) that doesn't allow for this understanding.

Territorial rights are justified because they protect and promote the self-determination of peoples and the people’s capacities to establish justice through their territorial rights. Territorial rights are also instrumentally and (possibly) intrinsically necessary for the practice of self-determination. As a concept applied to the state internally, the group with sovereignty has the authority to establish justice within the region, and this is central to the right of selfdetermination. If a group is to be self-determining, it must rule itself. In order for it to rule itself, it must have the authority to establish justice for its members.14 A group with a right to self-determination often requires territorial sovereignty in order to be self-determining.
13

Buchanan personally agrees that there is something of value regarding self-determination that is lost.

However, as his theory is articulated currently, there are no tools for describing this loss in terms of selfdetermination (Buchanan, personal correspondence). Obviously, Buchanan would acknowledge that other things of value had been lost, such as private property, the right not to be forcibly removed from one's home, etc.
14

Avery Kolers, 'The Territorial State in Cosmopolitan Justice', Social Theory and Practice, 28 (2002); Tamar Meisels, 'Liberal Nationalism and Territorial Rights', Journal of Applied Philosophy, 20 (2003), 31-43.

Without territorial rights, the self-determining group may cease to exist as a self-determining group. We can use this understanding of territorial rights to understand how the Lockean proviso mechanism should be applied to territorial rights; it is triggered when the selfdetermination of a group is threatened because of the territorial dispositions of other groups.

So far I have articulated a general Lockean mechanism for establishing consistence between principle and practice regarding exclusive rights over goods. This Lockean proviso mechanism, applied to territorial rights, constrains a system of territorial rights when that system threatens the continued existence of self-determining groups. In the remainder of this essay I examine different variations of the Lockean proviso to determine if a more specific version can be constructed for the case of ecological refugee states. In his Second Treatise of Civil Government, Locke specifies two restraints, or provisos, on property rights. The first requires that property rights should leave ‘as much and as good’ left over for others (sec. 27).15 The second, often called the spoilage proviso, requires that property rights be limited to what one can take advantage of before it spoils.16 To a great extent, my discussion here is limited to an interpretation of the former, ‘enough and as good’ proviso. However, in the final section of the paper, I briefly discuss the spoilage proviso and how it can be useful in helping to identify a location for something like New Tuvalu.

In my discussion of the ‘enough and as good’ proviso, I start with Jeremy Waldron’s supersession thesis and from this a modification of Nozick’s waterhole example. I argue that Waldron’s thesis, in order to work, must be understood as a thesis about the rights of selfdetermining groups to territorial sovereignty. Moreover, I use the cases here to demonstrate

15

John Locke, 'The Second Treatise of Government', in Two Treatises of Government and A Letter Concerning Toleration (New Haven, CT: Yale University Press, 2003 [1690]), Section 27. 16 Locke, Section 31, op. cit.

that the Lockean proviso applied to territorial rights cannot apply to the acquisition of territory. It must instead apply to our understanding of legitimate holdings or shares of territory.

Waldron and Supersession

In his well-received essay, “Superseding Historic Injustice”, Jeremy Waldron employs a version of the Lockean proviso in order to argue that certain former colonies may be justified in retaining territorial sovereignty. I ultimately reject Waldron’s conclusion, but because I develop Waldron’s use of the Lockean proviso for the case of ecological refugee states, I explain his position here in some detail.

According to Waldron, under certain circumstances, justice permits past injustices of colonization not to be redressed. It is likely, according to Waldron, that the injustice of territorial conquest has been superseded in some cases.17 That is, in some cases, justice demands that the past historical injustice of colonization not be redressed.

Waldron argues that a distribution of entitlements that is just under conditions of plenty may be unjust if conditions change to conditions of scarcity. Likewise, a distribution of entitlements that is unjust under conditions of plenty may be just at a later time if conditions change to conditions of scarcity. It is possible to imagine a pair of different circumstances, C1 and C2, such that the entitlement cannot be justified in C1 and can be justified in C2. The shift from C1 to C2 represents a “tipping point so far as the justification of the entitlement is concerned.”18 When the shift from C1 to C2 occurs and the entitlement is changed from an unjust one to a just one, Waldron says that the injustice has been ‘superseded’.19

17 18

Jeremy Waldron, 'Superseding Historic Injustice', Ethics, 103 (1992), 4-28. Waldron, p. 20, op. cit. 19 Waldron, p. 24, op. cit.

Waldron uses a version of the Lockean proviso to demonstrate that the injustice of colonization has been superseded by changing circumstances. John Locke construed property rights as sensitive to circumstances when he claimed that legitimate cases of original appropriation occur only when there was “still enough, and as good left” for others after the acquisition had taken place.20 This Lockean proviso has been developed in various ways, but the details of the proviso don’t need to be settled before we can make a point about just holdings in land. The point is that the acquisition of lands under circumstances of plenty is morally different from the acquisition of lands under circumstances of scarcity.

Waldron uses Robert Nozick’s conservative interpretation of the Lockean proviso. According to Nozick’s historical entitlement theory of justice a distribution of goods is just if all of the historical transactions leading up to the distribution of goods have been just. This historical view of just entitlements has an important exception, and that is the exception of a significant change in circumstances. As Nozick explains,

Thus a person may not appropriate the only water hole in a desert and charge what he will. Nor may he charge what he will if he possesses one, and unfortunately it happens that all the water holes in the desert dry up, except for his. This unfortunate circumstance, admittedly no fault of his, brings into operation the Lockean proviso and limits his property rights.21

Waldron applies a version of Nozick’s water hole example to colonization. In Waldron’s version, group P holds the rights to a water hole. Group Q holds the rights to a different water hole. One day Q unjustly takes control of P’s watering hole. Q then has control of two water holes, and P has control of none. Waldron continues,

20 21

Locke, Section 33, op. cit. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 180.

But then circumstances change, and all the water holes of the territory dry up except the one that originally belonged to P. The members of group Q are already sharing that water hole on the basis of their earlier incursion. But now that circumstances have changed, they are entitled to share that water hole; it no longer counts as an injustice. It is in fact part of what justice now requires. The initial injustice by Q against P has been superseded by circumstances.22

A similar supersession of injustice, Waldron argues, has possibly occurred in several empirical cases, e.g., in Australia, New Zealand, and North America; the historical claims to land of the original inhabitants are weakened because of changing circumstances. Just like P cannot demand that Q give up all rights to P’s former water hole given circumstances of scarcity, the original inhabitants of New Zealand cannot demand that the descendants of colonists give up all rights to the land. Waldron argues:

…there have been huge changes since North America and Australasia were settled by white colonists. The population has increased manifold, and most of the descendants of the colonists, unlike their ancestors, have nowhere else to go. We cannot be sure that these changes in circumstances supersede the injustice of their continued possession of aboriginal lands, but it would not be surprising if they did. The facts that have changed are exactly the sort of facts one would expect to make a difference to the justice of a set of entitlements over resources.” 23

If Waldron’s argument works, and it is true that circumstances now are genuinely similar to a water hole case, then the descendents of colonists in North America and in Australasia are

22 23

Waldron, p. 25, op. cit. Waldron, p. 26, op. cit.

not obligated to return territorial rights to the land’s original inhabitants. They are justified in maintaining territorial sovereignty without having, it seems, historical claims to the land.

Ecological Refugee States and Water Holes

The Lockean proviso applied to territorial rights is triggered when the self-determination of a group is threatened because of the territorial dispositions of other groups. With this in mind, we can construct a water hole case for ecological refugee states. The case of the ecological refugee state requires a new version of the water hole example. The original water hole example is an example of a monopoly. One party holds the title to the only source of water. The case of the ecological refugee state is not an example of a monopoly of resources. In the case of the ecological refugee state, it is not that all of the territory in the world has been destroyed, and only the territory of one state is left giving that state a monopoly on territory. Instead, a parallel water hole example analogous to the problem of ecological refugee states is this: Groups P, Q, and R each control their own water hole. A natural disaster occurs, and R’s water hole dries up. The question now is, what sort of treatment is owed to R by Q and P given the change of circumstances?

The original water hole case has been changed from a monopoly case to a nonmonopoly case. It is reasonable to hold that the Lockean proviso still applies in non-monopoly cases, because even in non-monopoly cases an agent may be threatened with extinction because of its lack of access to goods controlled by others. This change in the case from a monopoly case to a non-monopoly case is not unproblematic. The problem that arises in nonmonopoly cases is that it is initially difficult to identify who has a duty to allow R access to water, and how much access is required, especially if the obligation is split between P and Q. I will leave these problems aside for now, although they must be resolved in order for any

application of this principle to be resolved in the real world. Here I only wish to observe that the Lockean proviso is triggered in these cases, and P and/or Q have an obligation to allow R reasonable access to at least one water hole.

The application of the Lockean proviso to the case of ecological refugee states is straight-forward. Currently there are 193 states in the world, each with its own territory. There is no inhabitable land that is not a territory. The self-determination of any group whose territory is destroyed, or made un-usable, as is the case with ecological refugee states, is threatened with extinction because of the group’s lack of access to the territories of others. States with territorial rights over viable lands have an obligation to allow reasonable access to their territory to the ecological refugee states. According to this application of the Lockean proviso, the existing territorial rights of states should change because of the change in circumstances. Their territorial entitlements must change in order to allow the ecological refugee state reasonable access to some territory somewhere.

This is similar to how Waldron’s water hole example works except that Waldron never specifies whether it is the threat to the group or the threat to the individual members of the group that triggers the Lockean proviso. I argue elsewhere that for Waldron’s argument to succeed, he must mean that it is the self-determining group that is threatened rather than the individuals.24

24

My argument against Waldron rests on the distinction between the right to inhabit a land and the right to

territorial sovereignty. If on Waldron’s argument the Lockean proviso protects only individuals, then the result would be that individual descendants of colonists have a right to inhabit a territory such as New Zealand (so that they have a place to live), but they would not have a right to territorial sovereignty, which is a right of selfgovernment only. The result would be that the descendants of colonists in New Zealand would have to return territorial sovereignty to the Maori, yet the Maori would be required to allow the descendants of colonists to

Notice that the conditions triggering the Lockean proviso are not resolved if the members of the ecological refugee state are allowed merely to immigrate to some other state. Mere immigration does not satisfy the criteria necessary for a group to be self-determining even if the immigrants are treated justly. In order to be self-determining, a group may have to have territorial rights—to be granted the authority to establish justice within a certain region. In these cases, the conditions triggering the Lockean proviso are not resolved until the threatened group is granted territorial rights over some territory.

On my argument, the ecological refugee state is a candidate for sovereign over some other land, even if that land is currently part of another state’s territory, and the ecological refugee state has no historical claim to that land. There are several difficulties that follow from this claim. First, there is the difficulty of deciding over which lands the ecological refugee state is a candidate for sovereign. Because the ecological refugee state has no historical connection to any inhabitable lands, deciding over which lands the ecological refugee state may be a candidate for sovereign cannot be established in the common “We’re here now” or “We were here then” way. Second, there is the difficulty of deciding if the ecological refugee state’s status as a candidate for sovereign gives rise to any actual territorial rights. Being a candidate for sovereign in itself is not sufficient for establishing territorial sovereignty. Many other criteria must be considered before territorial sovereignty can be established. Among these considerations are competing territorial claims of existing states, the rights of the individuals residing in the land being claimed, the rights of self-determination of all groups involved, and a concern for stability and peace. All of these aspects should be taken into consideration as justified only if they fit within a just overall system of territorial rights implemented globally.

remain living in the territory. See Cara Nine, 'Superseding Historic Injustice and Territorial Rights', Critical Review of Social and Political Philosophy, 11 (2008), 79–87.

That is, the outcomes of these considerations should flow from the legitimate expectations regarding territorial rights as established by a just global institution of territorial rights that aims at the best international political arrangements as to the promotion of justice for all persons.

Answering an Objection

In response to my arguments against Waldron’s supersession thesis, Tamar Meisels argues that there is no real distinction between the right to reside in a territory and a right to territorial sovereignty. According to Meisels, the right to equally participate in the democratic processes of the state qualifies as territorial sovereignty, and presumably the descendants of colonists would be granted the right to vote.25 The objection is that self-determination is merely a matter of democratic procedure, and thus the individual right of immigration and naturalization into a new state, enjoyed by all of the members of an ecological refugee state, will satisfy the ‘collective’ right of self-determination of that group. In other words, according to Meisels, the self-determination rights of ecological refugees will be met if we give them the right to immigrate to democratic states.

Although Meisels argument brings out an important ambiguity in the distinction between residents and 'those who hold territorial sovereignty', I believe that the distinction is still normatively and practically important. It is this distinction that is at play in the example of the Pacific Islanders immigrating to Australia. Even though we assume that the immigrants would be treated justly, it is clear that they have lost the right to be self-determining as an independent group. This is the important loss at stake here. The same can be said of the groups like the Maori and the descendants of colonists. The Maori lost their right to be self-

25

Meisels, 2009 op. cit.

determining as an independent group. Practically speaking, if the descendants of colonists were to return territorial sovereignty to the original inhabitants of New Zealand, many changes would take place. Among the possibilities include a new constitution designed according to the political and social values of the original inhabitants. Democracies can be arranged according to many different constitutional, social, and political norms. Upon the return of territorial sovereignty to the original inhabitants, these groups could design the democratic institutions of the state to reflect their way of life, and they could legitimately expect the descendants of colonists to respect this Maori-kind of democracy, provided that the descendants are treated justly as residents in the state. In any case, it is clear that the Tuvaluans will lose their right to be self-determining as a collective. If they immigrate to New Zealand, they will, on Meisels’ interpretation, individually integrate into the New Zealand state and become self-determining and New Zealanders. The collective of Tuvaluans as self-determining is lost. If we value the self-determination of the collective of Tuvaluans as Tuvaluans—and maybe we don’t, but that we do is the assumption coming into this paper—then Meisels’ objection doesn’t stand. Even if each Tuvaluan can vote in their newly adopted state, the collective self-determination of Tuvalu is lost, and the Lockean proviso regarding its self-determining status is triggered.

Acquisition vs. Current Holding

Generally speaking, there are two ways that the Lockean ‘enough and as good’ proviso has been interpreted to apply to rights over goods. On the one hand, it may apply as a limitation on the acquisition of goods. That is, one may acquire a good as long as there are enough and as good resources left over for others to acquire after my acquisition. On the other hand, the proviso may apply as a restraint on current holdings. That is, one may have acquired something justly and hold it for a while only to have the terms of that holding changed as a result of the proviso.

In this section I argue that the Lockean proviso applied to territory should not be interpreted as applying to the acquisition of territorial rights. It should rather be interpreted as a restraint on the current holdings of territorial rights.

Territory is not property. Here, the relevant difference between property and territory is that the acquisition of property rights is not a zero-sum game, and the acquisition of territorial rights is a zero-sum game. In this section I first explain why the fact that the acquisition of property rights is not a zero-sum game presents a compelling reason to believe that the Lockean proviso understood as a limitation on acquisition is not a problem for the institution of property rights. Then, I explain why this reasoning doesn’t apply to the institution of territorial rights.

It has been argued that the Lockean proviso understood as a limitation on property acquisition could be devastating for historical entitlement theories of property rights. According to these arguments, the number of unowned things is finite. Once these unowned things are acquired, there is nothing left to acquire. If this is the case, then persons who come along after everything has been acquired are no longer at liberty to use resources; they are left at the mercy of the luckier property owners in order to acquire any property rights.26 If true, then the successful application of the Lockean proviso indicates that historical entitlement theories of property rights are doomed. If latecomers, i.e. most of us, are at the mercy of lucky first-come property-owners, then the Lockean proviso becomes the rule rather than the exception. In a situation of scarce resources, persons would not be allowed to acquire anything according to the system of historical entitlement—instead goods would be distributed according to the dictates of the proviso.

26

See for example: J.H. Bogart, 'Lockean provisos and State of Nature Theories', Ethics, 95 (1985), 828-36; and Alan Carter, The Philosophical Foundations of Property Rights (Hemel Hempstead: Harvester, Wheatsheaf, 1989).

Historical entitlement theories of property rights have a compelling answer to this objection. This answer, however, cannot be adopted by territorial rights.

The answer for theories of property rights is established through a justification of the institution of property rights. There are two perspectives from which we can justify property rights, the institutional perspective and the token right perspective. From the institutional perspective, we’re not justifying that I should have property rights to my house, for example. Instead, we justify the institution of property rights, that persons should have property rights generally speaking, and that a system of property rights should be endorsed by the basic structure of society. By contrast, when justifying property rights from the token right perspective, we justify token instances of the right. That I have a property right to my house (and not to my neighbour’s house) is a conclusion argued for from the token right perspective.

I explained earlier that an institution of property rights can be justified because it tends towards the preservation of humankind. To understand why the Lockean proviso is not devastating for a historical theory of property rights, we should look more closely at the reasons why an institution of property rights can be justified on the basis of the general Lockean duty to preserve humankind. David Schmidtz argues that an institution of property rights is ultimately beneficial for humankind because the appropriation of property is not a zero-sum game; the institution of property rights creates more property to be owned than what was originally acquired. The acquisition of one bit of property (like a plot of land) has the possibility of creating a multitude of things to be owned (like high-rise apartments built on the land).

… in taking control of resources and thereby reducing the stock of what can be originally appropriated, people typically generate massive increases in the stock of what

can be owned. The lesson is that appropriation is not a zero-sum game. It is a positivesum game. As Locke himself stressed, it creates the possibility of mutual benefit on a massive scale.27

Schmidtz asks us to compare modern society with the Jamestown colony of 1607 in America. It is certainly the case that in modern society there are more possible things to own than in the Jamestown colony. A system of private property, argues Schmidtz, allows owners to harness productive power in order to produce more things, things that can in turn be owned, for the ultimate benefit of humankind. The Lockean proviso, then, is not a devastating problem for historical entitlement theories of property rights.

This feature of property, that appropriation of property is not a zero-sum game, is not a feature of territory. That the appropriation of territory is a zero-sum game is exactly what makes the Lockean proviso a problem for historical entitlement theories of territory in a way that it is not for property rights. Territory, once appropriated, cannot be used to create more territory. This is because territory is a right only over land and natural resources, and as the saying goes, land is the one thing they’re not making any more.

Latecomers to the property-acquisition game are not dependent on the largesse of property owners in order to beneficially use or to acquire resources. Latecomers may choose from a large array of property to use and to acquire in order to pursue their life plans. Latecomers in the game of territorial acquisition are excruciatingly dependant on the largesse of existing territorial sovereigns in order to begin to pursue their collective self-determination. If the Lockean proviso applies to the acquisition of territorial rights, then, each state must leave viable lands for other groups to acquire for the purpose of being self-determining. As in the

27

David Schmidtz, 'The Institution of Property', Social Philosophy and Policy, 11 (1994), 46.

zero-sum game, because land is scarce, this makes the acquisition of territory impossible. The Lockean proviso as a restriction on the acquisition of territorial rights has the effect of making the system of territorial rights unworkable.28

‘Downsizing’ Current Holdings

Following from the argument in the previous section, I conclude that the best way to apply the Lockean proviso in the context of territorial rights is as a restraint on existing holdings rather than as a constraint on the acquisition of territorial rights in the first place. Indeed, this is the way that Waldron intends his supersession thesis to be understood, as changing the entitlements of existing holdings. Further solutions to this end have been suggested by A. J. Simmons. Simmons argues that legitimate holdings may be ‘downsized’. This happens when: “Property claims that were once perfectly legitimate may cease to be so with decreases in the pool of resources or increases in the number of persons needing to draw on those resources.”29

Simmons draws on another Nozickean example to illustrate.

28

One objection to my argument is that the right of self-determination is only held by groups who exercise existing

claims to territory (and only for as long as they exercise those claims over that territory). If this is true, then my argument would be vacuous; all groups with the right of self-determination would by definition exercise rights over territory. However, the justification for territorial rights themselves would be circular if we believed that a group must exercise territorial rights in order to have the right of self-determination. Territorial rights would be justified because they protect the self-determination of groups (given the rationale grounding territorial rights that I give above), and the self-determination of groups would be defined by the territorial rights. Additionally, the point of this paper is that there seems to be something compelling about the plight of landless groups, like ecological refugee states, to whom it seems arbitrary to not assign the right of collective self-determination
29

A. John Simmons, 'Historical Rights and Fair Shares', Law and Philosophy, 14 (1995), p.163.

... simply imagine eight castaways, each of whom has an access right to one-eighth of the island's land and resources. Each of the eight takes property in his or her full fair share. But children, grandchildren, and additional castaways increase the population without any corresponding increase in land or resources. The original eight must then "downsize" their previously legitimate holdings, giving the new population fair access to their shares of the island.30

Simmons’ position is different than Waldron’s. Instead of relinquishing the holdings to the newcomers (or interlopers), as Waldron’s view mysteriously suggests, Simmons’ view supports maintaining existing historical entitlements with the exception that some borders of the entitlements will be redrawn. There are still questions regarding how to identify where the borders should be redrawn, and what the conditions of the ‘downsizing’ should be. We can find Simmons again to be useful here. Regarding the conditions of the Nozickean islander case, he suggests that:

... the original islanders must make available to the newcomers some portion of their holdings that will allow the newcomers access to a fair share of the island's land and natural resources. But the original islanders have the right to choose which portions of their holdings to relinquish, and they retain their rights over even the relinquished portions so long as the newcomers opt not to make property in them. The original islanders may choose to keep the fair share of their original holdings to which they feel most attached, for instance, or in which they have invested the most labor. And they are entitled to compensation from the newcomers for improvements they have made in the portions of their holdings they are obliged to surrender. The newcomers, on the other hand, are entitled to take in their purposive activities their fair shares of the original
30

Simmons, 1995, p. 164, op. cit.

islanders' previously legitimate holdings. But they may take only from the relinquished portions.31

Simmons, like Waldron, makes the mistake of failing to distinguish between rights over territory, or sovereignty rights, rights to property, and rights of residence. (In the article Simmons means to address all three with the same argument, as does Waldron.) In territoryterms, what this strategy would mean for ecological refugee states is that existing, landed states would have the power to designate over which particular lands the ecological refugee state would have a possible claim.

It can be argued against this position that, historically, when existing, landed states have been given this power, the grantee has been awarded virtually useless land, land that nobody wants, as in the case of many Native American reservations in the U.S. The ecological refugee state could be given an unfair share of land under these conditions.

This objection can be met, I believe, if we establish criteria regarding the size and suitability of the land for the purpose of meeting the conditions of keeping a self-determining people from ceasing to be self-determining. It is not that just any land granted to the authority of the ecological refugee state will satisfy the conditions of the Lockean proviso. For example, if the ecological refugee state were granted a land of only 30 square meters, and the ecological refugee state had a population of 40,000 people, then the size of the land would not meet the needs of the people. There are criteria that must be met regarding the appropriate size of the land; it must allow them to be minimally self-determining. Additionally, there are criteria regarding the suitability of the land for the people. A people will have certain traditions and ways of life that they will carry with them to their new land. In order to be self-determining in

31

Simmons 1995, p. 168, op. cit.

their new land, they will need to be able to carry on, in some respects, the ways of life that they had before. Climate conditions and economic activities are important factors here. A Pacific island nation that depends heavily on fishing and other oceanic activity for their economic base will have an extremely difficult time adjusting to life in order to be self-determining in rural Siberia, for example.

I have not gone into much detail regarding the specific criteria for appropriate lands for ecological refugee states. However, it seems clear that there are criteria regarding the size and suitability of the specific geographical domain and that these criteria must be met if the conditions of the Lockean proviso are to be met—if the people are to be self-determining. With these criteria in place, the existing states of the world are not at liberty to decide to put the ecological refugee states just anywhere. They are bound by the criteria to provide lands where the people can be self-determining.

The Spoilage proviso, Degrees of Sovereignty, and Rectification

We may wish to give further direction regarding the location and condition of the possible resettlement of ecological refugee states. In this section I will sketch some further analysis compatible with what I have been arguing so far in this essay. The Lockean spoilage proviso has more to offer us regarding the identification of a location. We can also look to other possible tools for analysis —considerations of rectification for climate change and the possibility of embedded sovereignty rights.

Spoilage Proviso

In The Second Treatise of Civil Government, Locke states that: “God has given us all things richly, ... But how far has he given it us? To enjoy. As much as any one can make use of to

any advantage of life before it spoils, so much he may by his Labour fix a property in: whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy.”32 A strong theme in Locke’s theory of property is that the right to property is grounded in the efficient use of that property. As I noted above, for Locke, the system of property rights is justified because that system makes use of land so as to preserve humankind. The notion that rights over land should reflect valuable utilization of that land is common. It is reflected in most common laws around the world, and it is also taken up in formal law. If an owner leaves land left vacant or unutilized for a certain period of time, the owner’s rights may diminish, especially if there is another agent who is suffering because she is not allowed to make use of the land.

The spoilage proviso provides us with an alternative, or supplementary, method for determining the possible location of a new territorial home for ecological refugee states. The current entitlement rights over unutilized lands may be weaker, given the spoilage proviso, than the claims of ecological refugee states to resettlement. The ecological refugee states may have a stronger case regarding a claim over these lands.

Some authors have criticized the Lockean theory of property rights for relying on the principle of efficiency,33 because the concept of ‘efficient use of land’ cannot be generalized across cultures. However, we can avoid objections to Locke’s systems of property rights by constructing a sensible, intuitive version of the spoilage proviso for territorial rights that stretches across cultures as much as we can expect any system of rights to do. Tamar Meisels has done much of this work already. She argues that:

32 33

Locke, Ch. 5, Sec. 31, op. cit. Margaret Moore, 'The Territorial Dimension of Self-determination', in National Self-Determination and Secession (Oxford: Oxford University Press, 1998), p. 134–57.

In those cases in which the occupancy of land is conjoined with its utilization, this use of the land serves to strengthen the occupant nation’s claim to it. To this extent, efficiencybased considerations in fact figure quite frequently, at least implicitly, in our thinking on territorial entitlement. Correspondingly (though less obviously) it follows that the neglect of a land by its inhabitants must in some way put their title to it into question, though it does not automatically negate any territorial claim.34

This version of the ‘spoilage proviso’ places an emphasis on habitation. Peoples have a stronger claim to lands that their members inhabit than to lands that their peoples do not inhabit. This principle can’t take us all of the way to establishing a claim to new territory for ecological refugee states. Wildlife reserves are uninhabited, but they are not unutilized or inefficient use of lands. Meisels continues to describe an uninhabited, ‘neglected’ land—where the ecology is neither cared for nor valued; it is a land that is not efficiently utilized or valued by the internal standards of the people who have territorial rights over the land. When there is a group with the right of self-determination who is unable to exercise that right because the system of territorial rights excludes them from doing so, then the uninhabited, neglected land is more vulnerable to legitimate claims made by these groups.

Embedded Sovereignty Rights

The meaning of ‘sovereignty’ is developing. As somewhat of an oxymoron, the term has come to signify jurisdictional authority that comes in degrees. We can talk of ‘limited sovereignty’ as in the sovereignty of Native American tribes within the sovereign United States. The real possibility of degrees of self-determination should be explored further, and it presents itself as a natural option for the Tuvaluans and other ecological refugee states. Other groups

34

Tamar Meisels, '‘A Land Without a People: An Evaluation of Nations’ Efficiency-Based Territorial Claims', Political Studies, 50 (2002), p. 970.

also have legitimate claims to territorial rights, and currently there is no unoccupied, viable land. This means that any claim that an ecological refugee state might have to a territory as a result of the Lockean proviso will compete with another group’s right to self-determination. A likely consequence of this state of affairs is that the people of Tuvalu cannot expect to gain exclusive territorial sovereignty over any land. However, a case may be made for an arrangement of nested self-determination, where the Tuvaluans have rights to limited selfdetermination within another state’s territory.35 This arrangement, I believe, would resolve the conditions that trigger the Lockean proviso applied to territorial rights.

Rectification

So far this essay has considered the imminent rise of sea levels and resultant ecological devastation as events without blame. This position is of course controversial, as there is much scientific evidence to suggest that global warming and its effects are the result of preventable human action. I have written this essay as a response to blameless ecological events because I believe that this sets a baseline for the treatment of ecological refugee states. If we can establish that certain groups are to blame for the plight of the Tuvaluans, then the Tuvaluans will have additional grounds for claiming appropriate compensation, including possibility territorial rights, from the guilty parties.

35

New Zealand and Tuvalu have signed a treaty whereby New Zealand has agreed to allow all of the Tuvaluans to

immigrate to New Zealand. An example of nested self-determination would be for New Zealand to allow the Tuvaluans a limited amount of political independence within New Zealand (e.g., allowing local Tuvaluan tribunals to enforce traditional Tuvaluan law among Tuvaluans living in New Zealand, etc.) It may be that our evaluation regarding a just solution for ecological refugee states will depend on what the members of those states actually want. They may have important reasons to prefer to be immigrants rather than to establish themselves as a state in a new territory. A first practical step in this case will be to hold a referendum to determine how the citizens of future ecological refugee states would prefer to be settled after their territory is no longer inhabitable. (This obviously sound idea was suggested to me by Allen Buchanan.)

Conclusion

In this essay I have argued that ecological refugee states may be candidates as sovereign over a new territory after their existing territorial lands have been lost to the rising sea. The bulk of this essay is dedicated to adapting the Lockean proviso to be a useful tool in the case of territorial rights. I have argued for three theoretical uses of the Lockean proviso in the case of territorial rights. First, I have argued that the Lockean proviso is an abstract mechanism that maintains consistency between principle and practice in the case of systems of exclusive rights over goods. This mechanism is triggered to change particular rights (A’s exclusive right to a territory, e.g.) when those particular rights threaten the values (to protect and promote selfdetermination of groups, e.g.) that justify the system of rights as a whole. Second, I have argued that in the case of territorial rights, the Lockean proviso mechanism should be understood as a constraint on existent holdings, and not on the acquisition of territorial rights. And finally I briefly discussed the tools that can be found in the Lockean literature regarding an identification of a location of a new territory for ecological refugee states.

As a final note—this essay takes the concept of self-determination largely for granted. I have circumvented the difficult issue of secession by isolating my discussion to the people of existing legitimate states. However, I acknowledge that this circumvention is somewhat artificial. The messy business of conceptualizing the right of self-determination must now be faced head-on. Territorial rights founded on a right of self-determination are complicated, as mentioned earlier in the paper. Theorizing about self-determination is much needed in political theory, and pursuing an understanding of self-determination can only help us in understanding many important concepts in political theory, among these are territorial rights.

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