Review Article: The environmental turn in territorial rights

Abstract

Recent theories of territorial rights could be characterized by their growing attention to environmental concerns and resource rights (understood as the rights of jurisdiction and/or ownership over natural resources). Here I examine two: Avery Kolers’s theory of ethnogeographical plenitude, and Cara Nine’s theory of legitimate political authority over people and resources. While Kolers is a pioneer in demanding ecological sustainability as a minimum requirement for any viable theory of territorial rights – building a bridge between environmental and political philosophy – Nine highlights a crucial distinction when looking at territorial rights from a global justice perspective, namely that between jurisdictional powers and ownership rights over resources. Daring and innovative at first glance, I claim that both theories present, however, deep ambiguities and retreat from their radical implications which, if taken seriously, would lead to a massive redrawing of current territorial borders.

Keywords:

• territorial rights
• resource rights
• global justice
• sustainability
• Avery Kolers
• Cara Nine

Acknowledgments

This work was partly supported by the Research Council of Norway through its Centres of Excellence funding scheme, project number 179566/V20. For their helpful comments and insightful suggestions on an earlier version of this article, I would like to thank the participants at the Contested Territory Workshop held at the Centre for the Study of Mind in Nature, University of Oslo (September 2013); as well as Chris Armstrong, Alfonso Donoso, Grethe Netland, Megan Blomfield, Nicolás Lema, John Hadley, Kerstin Reibold, Christel Fricke and an anonymous journal reviewer. I am also especially indebted to Avery Kolers for taking the time to clarify and expound his views on some aspects of his book. Hopefully I have done justice to them.

Notes

1. I take this definition from the Organization for Economic Co-operation and Development (OECD). Available from: http://stats.oecd.org/glossary/search.asp [Accessed 4 July 2013].

2. In later work, Kolers has further developed the idea of an ontology of resources. One aspect of territorial rights, he claims, are rights of resourcehood, i.e., ‘the power to determine [by the community’s actual behaviour and actions] which things within the rightly held territory are resources’ (Kolers 2012a, p. 279). For a critique, see Simmons (2012) and Armstrong (2013).

3. Or take the case of some Latin American countries today, where the states fight against indigenous communities living within them for control over land and natural resources. While the latter have normally achieved ecological and social resilience (however politically and economically underdeveloped), the former have a stronger political and economic institutional apparatus, but have usually failed grossly regarding care and protection of the environment. Which one has then a better claim?

4. This is indeed what Kolers has emphasized in later writings. See, for example: ‘The quantity of territory in the world can […] be expressed by a measure of justice relative to ecological footprint; territory would expand if the same “quantity” of justice were achieved given a shrinking footprint, or the footprint held constant while the quantity of justice expanded. […] Whatever its other achievements […] the current states system, requires continually more land to achieve increasingly unsustainable returns. The results are not only sinking islands and desertification, but also a world less hospitable overall to human habitation and certainly to the provision of justice to a growing population’ (Kolers 2012b, pp. 338, 339).

5. Whether Escobar’s proposal is practically viable is a much debated question and it would be the topic of a different enquiry.

6. The minimal standards of justice are ‘adequate protection and respect for human rights of both members and non-members, where human rights are understood in terms of securing access to the objects of basic individual needs’. They also include ‘standards of non-aggressive behavior towards other self-determining groups, and similar good standards of conduct in the international sphere’ (p. 49).

7. Nine takes this from Armstrong (forthcoming). The original source of this distinction is Elinor Ostrom’s work, from which Armstrong slightly adapts it (Schlager and Ostrom 1992).

8. Because the focus of this article is on the connection between territorial and resource rights, I do not discuss Nine’s contentious claim that the right to control borders, i.e. to determine residence, citizenship and migration, is only contingent to territorial rights. The fact that she devotes only a couple of paragraphs to it and omits to discuss key issues like mass migration entirely, however, deserves closer inspection.