Oxford Uehiro Prize in Practical Ethics: Terra Nullius, Populus Sine Terra: Who May Settle Antarctica?

This article was the runner up in the undergraduate category of the 2022 National Oxford Uehiro Prize in Practical Ethics

Written by Leo Rogers, University of Oxford

Abstract

Who may settle Antarctica? I first argue that there are no significant prior claims to Antarctic territory, which is completely uninhabited. I assume that the environmental case for leaving Antarctica uninhabited does not rule out (but may qualify) legitimate claims to settlement, and that Antarctic territory will eventually be rendered habitable by climate change. I proceed to argue that states whose territory has become uninhabitable due to climate change have a right to settle distinct parcels of Antarctic territory. This is grounded in their right to political self-determination, which requires territory. Conflicting claims may be evaluated in relation to a standard of equality of resources, which is less problematic here than elsewhere. I then assess the objection that my argument implies more demanding duties than I set out, noting that my argument describes a negative rather than a positive duty. Finally, I note the abstraction of my argument, maintaining that it nonetheless retains its value.

An open question

There are no (significant) existing claims to Antarctic territory. As Mancilla (2018) argues, even a generous account of morally relevant claims to territory- grounding them in some ‘connection’ to the territory in terms of previous activity (such as resource extraction), potentially owing its moral relevance to its integration into the agent’s purposive activities- cannot justify states’ present claims. At most, states’ activities (e.g. whaling, scientific research, and base construction) could ground claims to very limited areas, which will stand or fall on the strength of the connection-based theory. States’ vast claims to 80%+ of the continent cannot be grounded on a connection-based theory. Still less can morally arbitrary imperial concessions or relative proximity[1] ground such claims. Antarctica is completely uninhabited: only ~1,000-5,000 transient researchers and staff reside there at any one time[2], and only 11 births are known to have ever occurred in the Antarctic circle[3]. Thus, if Antarctica may be settled and incorporated within political communities, the question of by whom is open.

I assume that the environmental case for leaving Antarctica uninhabited does not rule out settlement per se, but may qualify legitimate claims. While settlement could damage ecosystems and accelerate climate change in Antarctica, the same is true of land use elsewhere in the world; even if there is a qualitative difference in environmental damage, I assume that it would not be so significant as to render all settlement illegitimate, though it may limit the scale of settlement or render it impermissible in some areas. I further assume that climate change will eventually render at least a significant part of the continent habitable. Inversely, the territory of many states will become entirely (or almost entirely) uninhabitable due to climate change[4][5]. I call these ‘landless states’.

Political self-determination

Other parties[6] should allow landless states to settle territory in Antarctica. This claim is grounded in the right of a legitimate state (which meets some threshold level of protection for the rights of its citizens, and respect for the rights of other parties) to political self-determination. As Wellman (2011) argues, political self-determination represents “…a privileged position of moral dominion over [its] self-regarding affairs…” which includes, for example, sovereign control over its domestic legal system. Defining the legitimacy threshold, and distinguishing a state’s ‘self-regarding’ from its ‘other-regarding’ affairs, is not unproblematic. Yet the notion that legitimate states (somehow defined) are entitled to a sphere of decision-making, within which other parties (most obviously other states) are not to interfere with them, has significant intuitive weight.

If a state becomes landless, it requires territory to continue to exercise political self-determination. It is difficult to imagine a non-territorial state (if this is not a contradiction in terms[7]) maintaining a legal system; its citizens must reside within another state[8], and thus be subject to its legal system at least to an extent that would severely curb the political self-determination of the landless state.[9] A state’s right to political self-determination thus grounds a landless state’s right to settle uninhabited territory.

This right can be understood in Hohfeldian terms (following Wenar (2021)). The landless state is under no duty not to settle uninhabited territory (it would not be violating any moral duty by doing so); and other parties have duties not to interfere with the landless state’s settlement of uninhabited territory, such as (to use an extreme example) by forcing settlers off the land. It thus represents a privilege-right and a claim-right, respectively. My suggestion above that there are no prior claims to Antarctic territory, and that there is no environmental basis for a prohibition on Antarctic settlement, underlies the extension of the general claim-right to uninhabited territory to the Antarctic case. I also note here that other (non-landless) states’ interests in settling uninhabited territory (at least where these are the familiar interests in projecting global power and facilitating resource extraction) do not seem to morally outweigh the importance of the landless state’s interest in territory as a basis for political self-determination.

Competing claims

This argument implies that landless states may settle only non-overlapping portions of the continent (as settling overlapping portions would infringe on each other’s political self-determination). This raises a problem: how are conflicting claims to be adjudicated? This is especially relevant as the Antarctic Peninsula is (and will likely remain) the most attractive area of the continent for habitation, with its lower temperatures, higher precipitation, and proximity to South America. Thus, though Antarctica as a whole is vast, parts of it would likely be subject to rival claims if landless states were to settle the continent.

The question of what institutional structure should adjudicate these claims is distinct from that of the criteria for their legitimacy. The first is important, but may be set aside in favour of the latter. As a starting point, I appeal to the concept of equality of resources. At its most plausible, this is the notion that individuals are entitled to equally valuable bundles of resources. As an account of global justice, it is rejected by Miller (2007) due to the problems of establishing a global metric (i.e. one applicable across divergent cultures) of resource value, and the fact that separate political communities make decisions which influence the availability of resources (and thus have prior claims).

These problems do not apply here. The resource in question- Antarctic territory- has features which are likely to be valued similarly between cultures (water availability, temperature, sunlight, proximity to other continents). And prior to settlement, it is, in Nozick’s (1974) phrase, ‘manna from heaven’; the availability of its valuable features is not (at least not relevantly) a consequence of any agent’s past decisions. Since it survives these objections, equality of resources represents a plausible basis for the distribution of Antarctic territory between landless states: each individual Antarctic inhabitant is to have access to an equally valuable share of resources.

It follows that landless states may settle parcels of territory of equal population-adjusted value. One implication of this is that a state with a relatively small population may not monopolise a relatively valuable area such as the Antarctic Peninsula. Should states wish to settle there, they will likely be required to accept small portions of territory.

The narrow duty objection

As noted above, my claim that landless states have a right to settle uninhabited land includes the claim that they have a claim-right, i.e. that other parties are under correlative obligations, and that these obligations are limited to non-interference. It may be objected that the basis of the right entails more extensive duties than non-interference. Firstly, states may be required to cede non-Antarctic territory to landless states. If the landless states’ claims to territory ground a duty (held by other states) to allow them to settle Antarctic territory, why should it not ground a duty to allow them to settle (e.g.) Siberian territory? The latter is only sparsely populated, and may represent a more favourable living environment than Antarctica. Non-Antarctic territory may more closely approximate landless states’ original territory; and if the duty to allow landless states to settle Antarctica is affirmed within a broader account of the rectification of climate injustice, there is further grounding for non-landless states’ duties to cede territory. (As major polluters may be considered subject to more demanding obligations to the victims of climate change.)

Secondly, states may have a duty to contribute to efforts to mitigate the effects of climate change, and maintain the habitability of already inhabited land. Again, if other states are obligated to allow landless states to settle Antarctica in order to ensure that they have territory, why may they not fulfil the underlying obligation by contributing to land reclamation and sea-defence efforts, for example? It may seem contradictory and even disrespectful for some states to fail to contribute to climate change mitigation efforts in others, and to suggest when those states become uninhabitable their duties have been fulfilled by merely leaving Antarctica available as an alternative.

There are various responses to this objection. As noted above, Antarctica is unique in being entirely uninhabited. Even the most sparsely populated regions (such as Siberia) have an indigenous population, whose claims to the territory would conflict with those of any prospective settlers. What about truly uninhabited territory within states, such as Devon Island in northern Canada? I am prepared to accept that a state may be under a duty to cede such territory to landless states. Furthermore, my argument is compatible with duties to contribute to mitigation efforts, yet i) can be affirmed independently of a broader account of climate justice, and ii) allows us to imagine states’ duties in a scenario in which it is too late for these efforts (or they fail). These are desirable features.

My account outlines only negative duties towards landless states. Negative duties (rather than positive duties) require parties to refrain from acting (rather than requiring them to act). (Wenar 2021) Rather than explicating a duty to cede territory or contribute to climate change mitigation, I have outlined only a duty not to interfere with resettlement. Since such a duty is universal, binding all other agents, the argument thus avoids the problems of assigning duties to determinate parties. Such issues as the attribution of responsibility (for historic emissions) and the weight of states’ claims to retain territory (which are likely to be much more plausible than states’ present claims to Antarctic territory) may be set aside entirely.

Concluding remarks

I conclude by noting the abstraction of my argument, yet nonetheless affirming its value. My account suggests a situation in which a set of states are known to be simultaneously landless (or soon-to-be), and Antarctica is still uninhabited at this juncture. This picture leaves out the gradual nature of climate change, and the epistemic uncertainty associated with it. Precisely which activities in the present are precluded by a landless state’s claim-right in the future? May other states settle Antarctica pre-emptively, so that it is no longer uninhabited when states become landless? If states become landless in succession, how is equality of resources to govern their claims?

These and other problems are raised by the abstraction of my account, and cannot be addressed here. They may require substantial revision or rejection of some of my claims. Nonetheless, my account retains its value. It identifies the problem of landless states and emphasises their claim to territory. It provides an outline framework to apply to the settlement of uninhabited land which bypasses powerful objections to theories advanced in the global justice literature. Finally, since it asserts only a negative duty, it can be affirmed from various theoretical perspectives.

Endnotes

[1] As Mancilla notes, even the nearest countries to Antarctica are more than 700 miles away; even if proximity is morally relevant, Chile and Argentina are hardly contiguous with the continent.

[2] See Central Intelligence Agency (2022).

[3] See Bywater (2022).

[4] For example, some island nations are projected to be overwhelmed by rising sea levels in the coming decades (see Campbell and Warrick (2014)).

[5] There is nothing in my argument to suggest that if a legitimate state’s territory became uninhabitable for any other reason (certainly any beyond its control), it would not likewise have a right to settle Antarctic territory. However, such cases are random and infrequent, so will be ignored.

[6] This includes both other states, which may make competing claims, and non-state actors such as multinational resource-extracting corporations, whose activities may conceivably preclude settlement.

[7] Many influential definitions of a state, following Max Weber, are explicitly territorial.

[8] Or states, of course; the citizens of landless states would likely move to different destinations and thus form a diaspora.

[9] To use a trivial example, the citizens of a landless state cannot choose which side of the road to drive on.

 

References

Bywater, T. (2022) ‘Detour: Antarctica- the white continent’s secret baby race’ The New Zealand Herald, Available at: https://www.nzherald.co.nz/travel/detour-antarctica-the-white-continents-secret-baby-race/UGTNMCVNIBTN7YU7QKDD7PNUB4/ (Accessed: 15/2/22).

Campbell, J. and Warrick, O. (2014) Climate change and migration issues in the pacific, Bangkok: UN ESCAP Available at: https://www.ilo.org/dyn/migpractice/docs/261/Pacific.pdf (Accessed: 15/2/22).

Central Intelligence Agency (2022) Antarctica, Available at: https://www.cia.gov/the-world-factbook/countries/antarctica/ (Accessed: 15/2/22).

Mancilla, A. (2018) ‘The Moral Limits of Territorial Claims in Antarctica’ Ethics & International Affairs, Cambridge University Press, 32(3), pp. 339–360.

Miller, D. (2007) National Responsibility and Global Justice, Oxford: Oxford University Press, Chapter 3

Nozick, R. (1974) Anarchy, State and Utopia, New York: Basic Books

Wellman, C.H. and Cole, P. (2011) Debating the Ethics of Immigration: Is There a Right to Exclude?, Oxford: Oxford University Press, Chapter 1

Wenar, L. (2021) ‘Rights’ The Stanford Encyclopedia of Philosophy (Spring 2021 Edition), Available at:   https://plato.stanford.edu/archives/spr2021/entries/rights/ (Accessed: 15/2/22).

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