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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
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
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
The question is: what may the people of an ecological refugee state legitimately claim
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,
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
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
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
from the Lockean proviso mechanism regarding the location and conditions involving the
equal ownership of the earth) that in cases like ecological refugee states, these groups should
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
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
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
In this section I explain how the Lockean proviso applied to territorial rights should, at
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
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
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 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
and practical consistency. Or, as Locke puts it: “The same law of nature, that does by this
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
Adapting this understanding of the Lockean proviso to territorial rights requires that we
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
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
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
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-
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
units to which the group’s self-made laws are subject to being overridden or revoked.11
property rights, then ‘the establishment of justice through the preservation of self-determining
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-
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
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 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 self-
itself, it must have the authority to establish justice for its members.14 A group with a right to
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); 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 self-
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
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 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 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.
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
territorial conquest has been superseded in some cases.17 That is, in some cases, justice
Waldron argues that a distribution of entitlements that is just under conditions of plenty
entitlements that is unjust under conditions of plenty may be just at a later time if conditions
and C2, such that the entitlement cannot be justified in C1 and can be justified in C2. The shift
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.
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
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
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
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
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
20
Locke, Section 33, op. cit.
21
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
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
…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
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
Waldron, p. 25, op. cit.
23
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.
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 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
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
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
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 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
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
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
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
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
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
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
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.
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
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
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
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
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 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
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.
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
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
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
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
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 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
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
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
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
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
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
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
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
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.
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, efficiency-
based considerations in fact figure quite frequently, at least implicitly, in our thinking on
neglect of a land by its inhabitants must in some way put their title to it into question,
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
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
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 self-
determination within another state’s territory.35 This arrangement, I believe, would resolve the
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
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 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
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
artificial. The messy business of conceptualizing the right of self-determination must now be
mentioned earlier in the paper. Theorizing about self-determination is much needed in political
many important concepts in political theory, among these are territorial rights.