Ecological Refugees, States Borders, and the Lockean Proviso

8/8/2019 Ecological Refugees, States Borders, and the Lockean Proviso

1/29Electronic copy available at: http://ssrn.com/abstract=1645824

Ecological Refugees, States Borders, and the Lockean Proviso 1

Cara Nine, [email protected]

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 case s 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


2/29Electronic 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

terms 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) self-

determining and has a legitimate claim to continue to be self-determining, and (2) the self-

determination 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 self -

determination. 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 states 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 Ganssarguments. 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.


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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. Tuvalus 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 self-

determining 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.


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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 arent 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 Cara Nine, 'Territory is not Derived from Property: A Response to Steiner', Political Studies , 56 (2008).7 John Locke, 'The Second Treatise of Government', in Two Treatises of Government and A Letter ConcerningToleration (New Haven, CT: Yale University Press, 2003 [1690]), Chapter 2, Sec. 6.


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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 Seco nd

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 Nozicks interpretation of the proviso as determined by

considerations internal to the theory of property i tself, (Robert Nozick, Anarchy, State and Utopia (New York:

Basic Books, 1974), p. 180), although I dont 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.


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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 Locke, Chapter 5, Sec. 31., op. cit.10 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


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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 self-

government. A group is self-governing if it has the independent and determinate political

cont rol 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 groups self -made laws are subject to being overridden or revoked. 11

If we understand preservation of humankind as a foundation al 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 self-

determination, 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: ClarendonPress, 1995), pp. 85-87; Daniel Philpott, 'In Defense of Self-Determination', Ethics , 105 (1995), 357.


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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 self-

determining, 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 self-

determining 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 peoples capacities to establish justice through their territ orial 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 self-

determination. 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 self-

determination (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); TamarMeisels, 'Liberal Nationalism and Territorial Rights', Journal of Applied Philosophy , 20 (2003), 31-43.


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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 self-

determination 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 Waldrons

supersession thesis and from this a modification of Nozicks waterh ole example. I argue that

Waldrons thesis, in order to work, must be understood as a thesis about the rights of self-

determining 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 ConcerningToleration (New Haven, CT: Yale University Press, 2003 [1690]), Section 27.16Locke, Section 31, op. cit.


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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 Waldrons conclusion, but because I develop

Waldrons 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 Jeremy Waldron, 'Superseding Historic Injustice', Ethics , 103 (1992), 4-28.18 Waldron, p. 20, op. cit.19 Waldron, p. 24, op. cit.


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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 dont 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 Nozicks conservative interpretation of the Lockean proviso.

According to Nozicks 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 Nozicks water hole example to colonization. In Waldrons

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 Ps watering hole. Q then has control of two water

holes, and P has control of none. Waldron continues,

20 Locke, Section 33, op. cit.21 Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 180.


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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 Ps former water hole give n 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 Waldrons 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 Waldron, p. 25, op. cit.23 Waldron, p. 26, op. cit.


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not obligated to return territorial rights to the lands 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 th eir own water hole. A natural disaster occurs, and Rs

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 non-

monopoly 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 non-

monopoly 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


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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 extin ction because of the groups 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 Waldrons 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 Waldrons 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 self-

government 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


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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 states 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 Were here now or We were

here then way. Second, there is the difficulty of deciding if the ecological refugee states

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.


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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 argument s against Waldrons supersession thesi s, 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.


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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 dont, but that

we do is the assumption coming into this paper then Meisels objection doesnt 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.


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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 e xplain why this reasoning doesnt 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; andAlan Carter, The Philosophical Foundations of Property Rights (Hemel Hempstead: Harvester, Wheatsheaf, 1989).


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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, were 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 neighbours 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


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can be owned. The lesson is that appropriation is not a zero-sum game. It is a positive-

sum 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 theyre 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.


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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.


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... 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 Waldrons. Instead of relinquishing the holdings to

the newcomers (or interlopers) , as Waldrons 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.


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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 territory-

terms, 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.


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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


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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 Lockes 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

owners rights may diminish, especially if ther e 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 Lockes 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 Locke, Ch. 5, Sec. 31, op. cit.33 Margaret Moore, 'The Territorial Dimension of Self-determination', in National Self-Determination and Secession (Oxford: Oxford University Press, 1998), p. 134 57.


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In those cases in which the occupancy of land is conjoined with its utilization, this use of

the land serves to strengthen the occupant nations claim to it. To this extent, efficiency -

based 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 habi tation. Peoples have a

stronger claim to lands that their members inhabit than to lands that their peoples do not

inhabit. This principle cant take us all of the way to est ablishing 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.


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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 groups 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 self-

determination within another states 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.)


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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 (As exclusive right to a

territory, e.g.) when those particular rights threaten the values (to protect and promote self-

determination 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.

Ecological Refugees, States Borders, and the Lockean Proviso

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