The Temporal Dimension of Justice

THE TEMPORAL DIMENSION

OF JUSTICE

Doctoral thesis

submitted for the degree of Doctor of Philosophy at the University of Graz

submitted by Santiago Truccone-Borgogno

at the

Institute of Philosophy

First expert assessor: Univ.-Prof. Dr. Lukas H. Meyer

Second expert assessor: Univ.-Prof. Dr. Andreas Føllesdal

2021 1

To Romina

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Acknowledgments

This dissertation has been possible due to the support of many people and institutions. I hope to mention, in these lines all those who have so generously contributed in one way or another to this work.

I first want to express my gratitude to my supervisor Lukas Meyer, with whom I have repeatedly discussed different parts of this dissertation. I thank him not only for his challenging insights with respect to all the different parts of my work but also for his support and counseling. His guidance immeasurably contributed to my academic and personal growth during my doctoral studies. I am also immensely grateful to my doctoral advisor Timothy Waligore who was always supportive while challenging my views and arguments. Without their guidance and support, this dissertation would not have been possible.

A special thanks go to the Austrian Science Fund (FWF) as this work is part of research undertaken in the project “Supersession of Historical Injustice and Changed Circumstances,” funded by the research grant P 30084.

Since coming to the University of Graz, I have learnt much about philosophy from my colleagues Laura- García-Portela, Seung Hyun Song, Rutger Lazou, Laura Siggelkow, Eike Düvel, Thomas Pölzler, Harald Stelzer, Norbert Paulo, Elias Moser, Daniel Petz, Pranay Sanklecha, Monica Cano-Abadía, Annika Böddeling, Adriana Placani, Kian Mintz-Woo, Susana Monsó, Jonathan Knutzen, Romina Rekers, Barbara Reiter, Sabine Hohl, Jeroen Hopster and Antoinette Scherz. A special thanks to Anna Klieber, Klemens Wieringer, and Lena Remich, without whose support and help, my first days in Graz would have been more challenging. I would also like to thank Gunter Schüßler, Patricia Hodajeu, Katharina Hiebaum, Benjamin Paul Hofbauer, and Benedikt Namdar for their help in the last stages of the project Supersession. The same goes for Deborah Biging, Daniel Lassnig and Henrike Sannecke. I also benefited greatly from the theoretical discussions I had with them. I am tremendously grateful to Kanita Kovacevic, who helped me countless times with the many issues I had to deal with in moving to Graz and during all these years.

I also want to thank my colleagues from the Austrian Climate Research Program (ACRP) project LEXAT: Legitimate Expectations and Austria’s Transformation to a Low-Carbon Society and Economy, financed by the Austrian Klimafonds: Karl Steiniger, Eva Schulev-Steindl, Keith Williges, Miriam Hofer and Stefan Nabernegg. The discussions I had with them definitely improved the quality of this work.

I also benefited from discussions with colleagues from the School of Law at the University of Graz. I want to thank to Christian Hiebaum, Matthias Klatt, Wolfgang Benedek, Hector Moralez-Zúñiga, Lisa Sonnleitner and Carolina Alves das Chagas.

I benefited further from questions and comments from my students of the course I taught at the University of Graz, The Moral Dimensions of Harm.

I would like to especially thank Eduardo Rivera-Lopez for discussing several parts of this dissertation at different events and for hosting me at Torcuato Di Tella University (Buenos Aires) when I was doing research there. I am also indebted to the free and public education system of Argentina. My previous studies at the Córdoba National University, and my previous position at CONICET and at the Center for Legal and Social Research of the Law School of Córdoba National University have undoubtedly contributed to this work.

I presented different parts of this work at many conferences, workshops, and seminars in Europe and Latin America. I want to thank the attendees and participants of all of them, but especially thank the participants of the workshop The Temporal Orientation of Justice held at the University of Graz in 2018. Thanks to Jeremy Waldron, Andrei Marmor, Jeff Spinner-Halev, Amy Hondo, Daniel Butt, Burke Hendrix, Gordon Christie, Julio Montero, and Kerstin Reibold. I hope I could incorporate their comments, objections, and criticism in improving this work. Thanks to the members of the United Kingdom Latin American Political Philosophy Network (UKLPPN), and to those of the Research Group of the Article 19 of the Argentinian National Constitution (Córdoba National University) with whom I had discussions that, I hope, have advanced my scholarly work. Special thanks go to, Francisco García-Gibson, Juan Espíndola, Marcelo de Araujo, Maria Victoria Kristan, Juan Iosa, Carlos Villanueva and Jaqueline Brito. I would also like to thank

Cecilia Carrizo and Mauricio Berger, who helped me find a venue in Argentina for discussing many of the dissertation topics. The same gratitude goes for Daniel Loewe, who allowed me to discuss the supersession thesis at the University Adolfo Ibañez in Chile. Roberto Gargarella invited me to scrutinize part of my work with constitutional scholars of Argentina in the inaugural event of the Argentinian chapter of ICON-S. During these and other events, I had the opportunity to improve my work thanks to the comments and objections of many people. I want to specially thank to Mariela Tulian, Silvina Ramirez, Leticia Morales, Fernando Lizárraga, Catherine Lu, Esteban Llamosas, Anna Stilz, Ezequiel Monti, Gustavo Beade, Guillermo Lariguet, Andrej Kristan, Emanuel Olivares, Valeria Plaza, Ignacio Giufre, Vladimir Chorny, Liv Nielsen, Santiago Mollis, Isabel Lifante-Vidal, Ignacio Colombo, Josep Aguiló-Regla, Nahuel Maisley, Daniel Gonzales-Lagier, Liliana Ronconi, Cristian Dimitriu, Macario Alemani, Carmen Pavel, Manuel Atienza, Ramiro Moyano, Victoria Roca, Marco Billi, Fergus Green, Leandro Dias, Rodrigo Sanchez- Brígido and Alessandro Pinzani.

A special “lockdown” thanks goes out to Lucas Misseri and Anna Bugajska for the remote on-line reunions during the pandemic that became regular bi-weekly meetings in which we discussed our draft papers. I am also incredibly grateful to Suyai Garcia-Gualda, whom I only meet in the last part of the dissertation but whose knowledge about the indigenous peoples in Argentina, particularly about the Mapuce communities, helped me revise many of my earlier arguments and views. My dissertation owes much to their comments.

I thank Bruce Straight for editing my English and raising several questions and objections that helped me improve this dissertation.

I also thank Otto and Ruth Reisch. During the many months when I was alone in Graz because my wife had to be in another country, they always made sure that I did not lack anything. They have always made my life in Graz easier.

I would especially like to thank my parents Marcela and Pablo, my grandparents Esther and Nelso, and my brother Rodrigo. I could not have written this dissertation without their support. It has been almost two years since I have seen them in person, but despite the separation their support has been essential for me.

Finally, I would especially like to thank my wife Romina Rekers for her robust and continual support. She was always there – in the difficult times and also in the exceptionally good ones. She helped me in my journey by moving to Graz, making my life unmeasurably happier and being at my side whenever I needed advice or psychological and emotional support. As she is also my colleague, she also helped me a great deal with her sharp and challenging philosophical arguments at various workshops, academic events, and seminars in which I presented my work. Without exaggeration, she has hear and discussed countless times every line of this dissertation. ¡Gracias!

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TABLE OF CONTENTS

Declaration of Authorship ...... 12

Abbreviations ...... 14

INTRODUCTION: THE SUPERSESSION OF HISTORICAL INJUSTICES ...... 16 I. Redistribution, Compensation, and the Temporal Orientation of Justice...... 19 II. Challenges to the Supersession Thesis ...... 23 i. The Conquest of the Desert ...... 24 ii. Climate Change and the Distribution of the Remaining Global Carbon Budget ...... 26 III. Outline of the Project ...... 29 IV. Principles, Examples, and Reflective Equilibrium ...... 38 V. Critical Morality and Practical Problems ...... 43

1. ON HOW TO JUDGE THE PAST: THE CONQUEST OF THE DESERT ...... 48 Introduction ...... 48 I. The Conquest of the Desert ...... 49 II. The Denial of the Unjust Character of the Conquest of the Desert ...... 51 III. Beneficial Consequences Do Not Justify the Conquest of the Desert ...... 53 IV. Judging the Past with the Eyes of the Present ...... 62 V. Responsibility for Historical Injustices ...... 64 VI. From Moral to Remedial Responsibility ...... 74 Conclusion...... 77

2. FROM HISTORICAL INJUSTICES TO PRESENT RESPONSIBILITIES ...... 80 Introduction ...... 80 I. The Non-Identity Problem and the Individual Claims for Compensation...... 83 II. Numerical Identity and the Continued Existence of Groups over Time ...... 89 III. Divisions and Fusions among Indigenous Peoples ...... 95 IV. The Continued Existence of Indigenous Peoples into the Present ...... 101 V. Collective Inheritance and Responsibility for Redressing Historical Injustices ...... 105 Conclusion...... 112

3. POLITICAL SOVEREIGNTY, ALIENATION, AND THE PRINCIPLE OF PROXIMITY ...... 114 Introduction ...... 114 I. The Principle of Proximity ...... 116 II. The Principle of Proximity and the Conquest of the Desert ...... 119 III. Sovereignty and the Supersession Thesis ...... 124 IV. The Supersession of Indigenous Claims for Sovereignty ...... 126 V. Freedom, Alienation, and Partial Supersession ...... 129 VI. Interests in Citizenship and Measures of Reconciliation ...... 135 Conclusion...... 145

4. LAND, COMPENSATION, AND DISTRIBUTION ...... 148 Introduction ...... 148 I. Compensation and Land ...... 150 II. Land and the Supersession Thesis ...... 152 III. On the Normative Relationship between Distributive and Compensatory Justice .... 158

IV. Compensatory Justice: Grounds of Liability ...... 164 V. Compensatory Justice: Grounds of Compensation ...... 169 VI. Grounds and Modes of Compensation: The Continuity Thesis ...... 179 VII. The Strength of the Reasons for Symbolic Compensation ...... 182 Conclusion...... 185

5. CLIMATE CHANGE AND INTERGENERATIONAL JUSTICE ...... 188 Introduction ...... 188 I. Causing Bad Consequences to Future People ...... 191 i. The Rights of Future People ...... 194 ii. The Threshold Conception of Harm ...... 196 iii. Needs-based Sufficientarianism ...... 199 II. International Distribution of the Remaining Global Carbon Budget ...... 203 III. Historical Emissions and the Community Pays Principle ...... 206 Conclusion...... 212

6. UNJUST CLIMATE ENRICHMENT AND THE INTERNATIONAL DUTY OF RESTITUTION ...... 214 Introduction ...... 214 I. Climate Unjust Enrichment ...... 216 i. The Benefit Condition...... 218 ii. The “At the Expense of” Another Party Condition ...... 219 iii. The Unjust Factor Condition ...... 224 II. Defenses Against the Duty of Restitution ...... 229 i. The Benefits Are No Longer Here ...... 231 ii. The Benefits Are Not the Same ...... 236 iii. Benefits, Life Plans, and Status-Quo Expectations ...... 240 Conclusion...... 243

7. INTERNATIONAL CLIMATE DUTIES AND THE SUPERSESSION THESIS .246 Introduction ...... 246 I. From Public Bads to Public Evils ...... 248 II. The Moral Hazard Objection and Duties of Restitution ...... 251 III. Future Supersession...... 254 IV. Compensation and the Passage of Time ...... 258 V. Compensation in Distributively Just Worlds ...... 261 Conclusion...... 263

CONCLUSION: THE TEMPORAL DIMENSION OF JUSTICE ...... 266

REFERENCES ...... 274

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Declaration of Authorship Unless otherwise indicated in the text or references or acknowledged below, this Ph.D. thesis is entirely the product of my own scholarly work. All direct or indirect sources used are acknowledged in the references. I am aware of the University’s regulations concerning plagiarism, including those regulations concerning disciplinary actions that may result from plagiarism. The Ph.D. thesis presented here has not been submitted, either as a whole or in part, for a degree at this or any other university or institution. Furthermore, I certify that the printed version is equivalent to that submitted electronically. Graz, July 14th 2021 Santiago Truccone-Borgogno

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Abbreviations

CONADEP Argentine National Commission on the Disappearance of Persons (Comisión Nacional sobre la Desaparición de Personas) COVID-19 Coronavirus disease 2019 CSJ Argentine Supreme Court (Corte Suprema de Justicia) DNA Deoxyribonucleic acid GCB Global Carbon Budget GDP Gross Domestic Product GHGs Greenhouse Gases ILO International Labor Organization IGN Argentine National Geographic Institute (Instituto Geográfico Nacional) INAI Argentine National Institute of Indigenous Affairs (Instituto Nacional de Asuntos Indígenas) INDEC Argentine National Institute of Statics and Census (Instituto Nacional de Estadísticas y Censos) IPCC Intergovernmental Panel on Climate Change OCMT Organization of the Mapuce and Tehuelche Communities (Organización de Comunidades Mapuce Tehuelche) Re.Na.C.I. Argentine National Registry of Indigenous Communities (Registro Nacional de Comuniades Indígenas) SARS-CoV-2 Severe acute respiratory syndrome coronavirus 2 UNFCCC United Nations Framework Convention of Climate Change

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INTRODUCTION: THE SUPERSESSION OF HISTORICAL INJUSTICES

Are there reasons to redress historical injustices? If the answer is affirmative, how strong are those reasons? As soon as public institutions or present holdings are scrutinized, it is quickly found that most of them are partially the result of past injustices. Many modern states were founded on the enslavement and killing of indigenous and other populations as well as the theft of their lands and property. Further, it was well into the 20th century that many of these same states granted women the right to vote and participate in politics. Although states may be able to render good conditions of life for a significant number of their residents our institutions are profoundly tainted. Furthermore, many of these past injustices continue to affect currently living people. It seems, in the light of these considerations, that there are good reasons for redressing past injustices.

Historical theories of justice of the kind shaped by John Locke and, more recently, greatly influenced by Robert Nozick, have taken the aim of redressing or rectifying historical injustices seriously. For instance, according to Nozick’s entitlements theory (1974), a society is just when holdings are distributed according to the principles of just acquisition, just transfer, and just rectification (p. 182). The final is the principle that operates in resolving cases of historical injustices, when one strives to obtain a world as close as possible to what it would have been, had past injustices not been perpetrated. In this view, there is no question whether we should redress historical injustices. Indeed, redressing historical injustices is part of what justice requires. For these backward- looking theories, we not only have reasons to redress historical injustices, these reasons are also strong.

However, as soon as we realize that many circumstances have changed between the committing of some of these past injustices and the present, the case for rectifying historical injustices becomes more complicated: Direct victims and perpetrators of past injustices are no longer with us; the modern world is much more interconnected than, for instance, one or two hundred years ago; the needs and requirements of contemporary life are not the same as those of people who lived in the past; and even standards of social morality have changed. Moreover, in the 21st century many more people live in the world, and the pressure and competition over scarce natural resources is much higher than in the

16 past. Thus, how is it possible to be sure about the requirements of, for instance, the principle of just rectification? At this point, it is no longer clear whether and, if so, how we should respond to historical injustices. Changes in circumstances seem to have affected what justice requires.

In the light of the previous difficulties, one might think that we should take a different route for responding adequately to historical injustices. End-state theories of justice – also called forward-looking theories – can count among their purposes the task of redressing historical injustices. It is common among these views to start with a baseline for the distribution of goods.1 This baseline is defined, on the one hand, according to a specific criterion that expresses egalitarian, sufficientarian, or prioritarian concerns; and, on the other hand, it is defined by changes in the distribution of goods caused by agents’ responsible non-wrongful choices. According to this view, justice occurs when institutions are arranged in a way that leads to obtaining a distribution of goods according to the relevant baseline. However, there might be deviations of that baseline, and, accordingly, measures for rectifying the just distribution of goods are required. Lukas Meyer (2013) expressed that when deviations occur because people have undeserved benefits and harm, distributive justice measures should be taken. Conversely, he claims that when deviations arise due to wrongdoings, the measures to be considered are of compensatory or corrective justice (pp. 609-610).2 Therefore, if past injustices have altered or skewed the distribution of goods according to the relevant baseline, measures of compensatory justice are needed. In this view, there are also reasons to redress historical injustices since those wrongdoings may have altered the distribution of goods according to the relevant baseline. Taking measures of compensatory justice corrects such deviations.

The difficulty with this view occurs, again, with the change in circumstances. Imagine a scenario of just two individuals who agree that however many hectares of land exist, they will be distributed according to an egalitarian baseline. In the beginning, there are 100 hectares; thus, each person receives 50. Suddenly, one person, called Wrongdoer, seizes 10 hectares from the other, called Lucky, attaining 60 hectares and leaving Lucky with only 40. In this scenario, measures of compensatory justice require Wrongdoer to

1 The following description follows Meyer’s characterization of the distinction between distributive and compensatory justice (2013, pp. 609-611). 2 In this work, I will use the expressions compensatory justice and corrective justice indistinctively. 17 return 10 hectares to Lucky. However, imagine that before such a measure is carried out, a river changes its course via avulsion, increasing Lucky’s lands by 20 hectares.3 Now Lucky has 60 hectares, and Wrongdoer also has 60. Does Wrongdoer still have a duty to compensate Lucky for having stolen 10 hectares of his land? The phenomenon of avulsion gives Lucky the undeserved benefit of having 20 additional hectares, which, according to the initial agreement, would seem to have to be equally distributed with Wrongdoer. The change in circumstances has created undeserved benefits that call for measures of distributive justice. However, these measures go in the opposite direction to those required by considerations of compensatory justice. While measures of compensatory justice require Wrongdoer to return 10 hectares to Lucky, distributive justice requires Lucky to give 10 hectares to Wrongdoer. Or is it the case that we need to consider the losses that might have arisen during the time in which Wrongdoer does not compensate Lucky? Does this fact increase the amount of compensation to be provided? What if Lucky does not immediately fulfill her duty of redistribution? Does she commit a new injustice? All these possible variations in the circumstances seem to have effects on what justice requires. On this model, when circumstances change in the ways specified above, it is not obvious why measures of compensatory justice are still owed. It is not obvious why historical injustices should be redressed when circumstances change in such manner.

Within the context of the discussion about historical injustices, one interesting way of reconciling the distributive and the compensatory aspects of justice is the supersession thesis. According to this thesis, to which Jeremy Waldron made substantial contributions, redressing, rectifying, correcting, or compensating historical injustices is an important enterprise. However, as he asserts, “[h]istoric injustices may be overtaken by changes in circumstances so that a situation that was unjust when it was brought about may coincide with what justice requires at a later time” (Waldron 2004a, p. 237).

In this dissertation, I argue that a revised version of the supersession thesis can explain what reasons we have for redressing historical injustices and also clarify how strong these reasons are. In particular, I argue that a revised version of the supersession

3 For readers unfamiliar with the legal term of “avulsion,” Article 1961 of the Argentine Civil and Commercial Code defines and regulates avulsion as follows: “Avulsion: The increase of the property by the sudden force of the waters that produces a natural adhesion to that property belongs to the owner of the property. It also belongs to him if that increase originates from another natural force”. 18 thesis gives rise to a general principle able to accommodate both the compensatory and distributive aspects of justice.

In this introduction, firstly, I briefly describe the supersession thesis. In particular, I explain that Waldron’s version of the supersession thesis gives rise to a general principle according to which situations of need are able to shift the temporal orientation of justice. In particular, in situations of need, forward-looking reasons of distributive justice have priority over backward-looking reasons of compensatory justice (Section I). Secondly, I describe some challenges that the supersession thesis should respond to be an acceptable account for dealing with historical injustices. These challenges stem from considering two different kinds of situations: first, from analyzing past injustices perpetrated in countries that today have high rates of poverty; and second, from assessing cases in which injustices can be superseded but in the future (Section II). Thirdly, I outline the structure of the dissertation (Section III). Fourthly, I will explain the methodology I use in this work: I will briefly describe the method of reflective equilibrium (Section IV). Since this work aims for a general principle of critical morality about possible and justified shifts of the temporal orientation of justice, I assume moral universalism. For this reason, fifthly, I defend the value of this kind of scholarship by responding to those who claim that no universal criterion of critical morality can have practical relevance (Section V).

I. Redistribution, Compensation, and the Temporal Orientation of Justice

What is the temporal orientation of justice? Consider the following story provided by David Lyons:

(a) Suppose that we are occupants of an isolated island. We arranged to use land and all its other resources among ourselves, and we live comfortably, with some less perishable goods set aside for rainless seasons. One day, a party of castaways from a shipwreck are washed up on our shore. They are uninvited but also involuntary guests. There is no prospect for their safe removal, and they have no resources beyond their capacity to work. But they are also unaggressive (Lyons 1981, p. 369).

What has to be done in this situation? Of course, we cannot expel these castaways to the sea. However, their arrival creates a problem of allocation of resources that calls for some form of solution. As Lyons notes, if things remain unchanged, newcomers will be doomed to live in a subordinate position in both economic and social terms (Lyons 1981, p. 370). To avoid this consequence, it seems that measures of redistribution are

19 required. In this world without injustice, distributive justice concerns speak in favor of granting a fair share of the land to the newcomers. This story suggests that justice should have a forward-looking orientation. As Leif Wenar states, “forward-looking justifications, (…), look only to the reasons we have to make the world better from now on” (2006, p. 297).

Now consider a second story:

(b) Suppose that the castaways who arrive upon our shore are not friendly and cooperative but aggressive and domineering. We try to be hospitable, but they do not reciprocate. They cheat us, kill many of us, and force the survivors to reside in a small area of the island, away from our homes, while they appropriate a disproportionately large part, including the most desirable sectors, for themselves (Lyons 1981, p. 373).

In this second story, the aggressive invaders should provide compensation for the injustices they perpetrate against the occupants of the island. Here, after wrongdoings are committed, it seems that there are reasons for making the state of affairs as it was before the invaders arrive. Unlike the first story, this second scenario suggests that justice should have a backward-looking orientation. For Wenar, “backward-looking justifications are based on ground-level reasons we (allegedly) have to make the present match the past” (2006, p. 296).

The reason justice has a forward-looking orientation in the first scenario, but a backward-looking one in the second, is that different aspects of justice are involved in the two. In the first scenario, only distributive justice concerns appear, while in the second, we are confronted with issues of compensatory justice. However, although it seems that we always have reasons for trying to “make the world better from now on” as normative principles grounded in forward-looking justifications recommend, it is not clear if, once some injustice has been perpetrated, we always and forever have reasons “to make the present match the past” as normative principles justified in backward-looking considerations require.

Returning to Lyons’ narrative imagine that the second story (b) continues as follows: “The descendants of the piratical invaders come to live in harmony with our own descendants, so that no one is deprived of a fair share of the island’s resources” (Lyons

1981, p. 374). In this version of the story, Lyons (1981) thinks that our descendants do not have additional claims for compensation against the descendants of the invaders. In his view, the wrongs we suffered can no longer be compensated for after we die (p. 374). Hence, it seems that backward-looking considerations have no longer moral weight in this story. On the one hand, past victims and perpetrators are no longer alive and, on the other hand, presently living people live in harmony under conditions of distributive justice. Indeed, to provide compensation in such a world seems to require altering the current perfect distribution of resources of the island which, in turn, will make the island distributively less just. For this reason, some scholars assert that reparations or compensation for past wrongs should not be permissible in those situations in which redressing the injustice is incompatible with forward-looking concerns of distributive justice (Wenar 2006, p. 402; Vernon 2003, p. 544).

This is the type of considerations that Jeremy Waldron seems to endorse in favor of the thesis of the supersession of historical injustice. In commenting on the last scenario of the castaways, he asserts:

What is called for is a distribution morally appropriate to present circumstances, present resources, and the present population of inhabitants who have no choice but to live in these territories, not to a set of circumstances in the past where everything was different. In this sense, a historic injustice can be superseded, and its reparation trumped, as it were, by principles of justice applied directly to present circumstances [emphasis in the original] (Waldron 1992a, p. 165,).

The point of the discussion is that backward-looking reasons for providing compensation or correction matter until they enter into conflict with forward-looking reasons of distributive justice. Waldron (1992b) strengthened the case in favor of the supersession of past injustices by considering a case in which in the past, with circumstances of plenty, a group N invade and unjustly appropriate a waterhole that belonged to another group S without reciprocating (pp. 24-25). This injustice, of course, requires reparation. At the time of appropriation , the waterhole should have been returned to its rightful owners. However, in Waldron’s story, suddenly, a natural disaster makes all the waterholes dry up, except for the waterhole already shared by the two groups. According to Waldron, in such a case, the past injustice was superseded by circumstances. Now, a scheme of distribution is required that allows for the needs of the members of both groups to be satisfied from the waterhole (Waldron 1992b, p. 25). The plausibility

21 of the supersession thesis is strengthened in this version of the case because now, that is, at present, both groups are in circumstances of extreme need triggered by a natural disaster.4

Reconsider the earlier shipwreck example. Suppose we were willing to think that backward-looking reasons no longer have moral weight when, in the present, each party has a fair share of the island. In that case, it seems that such a conclusion is stronger in the hypothetical case in which both the descendants of the invaders and those of the original possessors are, because of some natural disaster, under situations of extreme need. Nevertheless, it must be noted that the supersession of some past injustice is only a possibility. As Waldron asserts, “Everything depends on which circumstances are taken to be morally significant and how as a matter of fact circumstances have changed” (Waldron 1992b, p. 25). Therefore, the thesis does not imply that the injustice has been superseded in any given situation in which some injustice occurred, and circumstances have changed.

As specified above, the supersession thesis has at least two valuable features. First, it helps in understanding how changes in circumstances may affect what justice requires at different times. Thus, it collaborates to explain why and under what circumstances the temporal orientation of justice might change. Second, in the specific version defended by Waldron, the supersession thesis speaks in favor of each person always being above a certain minimum level of well-being. This is a desirable feature of the thesis because it seems to prevent that an individual could be burdened with some extreme duty that would force him to live under very dire conditions. In the end, the thesis gives priority to the present needs of the people who are currently or are likely to be below a relevant threshold of well-being. Thus understood, the supersession thesis gives rise to a general principle according to which situations of need are able to shift the temporal orientation of justice. In particular, in this situation, forward-looking reasons of distributive justice have priority over and may even trump backward-looking reasons of compensatory justice.

4 Waldron’s waterhole examples will be discussed in detail in Chapter 4. 22

II. Challenges to the Supersession Thesis

Despite its clear, attractive features, the supersession thesis has encountered resistance among the supporters of those who have claims for having suffered historical injustices. For example, many defenders of indigenous claims have argued that the supersession thesis cannot be used for denying the validity of their claims because it is not true that in the present, the entities involved in past injustices are living with circumstances of scarcity and that the change in circumstances was beyond the control of the perpetrators of the injustice. There are also principled rejections or amendments of the supersession thesis that, for instance, assert that entitlements are less sensitive to circumstances or that the scope of historical injustices is not restricted to the effects on entitlements and holdings.5

In this work, I examine the supersession thesis in two cases that have not been discussed or, at best, minimally addressed in the literature. First, I analyze how to respond to military campaigns perpetrated against indigenous people in the 19th century in Argentina. In evaluating this example I introduce a new case study to the discussion about how to respond to historical injustice within the context of the supersession thesis.6 Second, I scrutinize the supersession thesis in the current climate situation. Specifically, I discuss how the remaining global carbon budget ought to be globally distributed. The remaining global carbon budget is comprised of the total sum of remaining net-emissions compatible with keeping the global temperature below a certain threshold.7 This case is of interest because it forces us to consider the supersession thesis from an ex-ante perspective. The thesis is applied to a situation in which people might be perpetrating injustices in the present, but the injustice might be rendered irrelevant in the future because of changes in circumstances. Analyzing instances of possible future supersession could provide valuable insights for explaining the extent of the duty to provide

5 These two lines of argument that assess, criticize, or amend the supersession thesis usually focus on countries such as Australia and New Zealand (Thompson 2002, Nine 2008, Patton 2005), Canada (Sanderson 2011), the United States of America (Waligore 2009, 2016; Simmons 2005, 2016; Spinner- Halev 2012), Israel (Meyer 2004a, 2006; Marmor 2004; Meisels 2003, 2009; Gans 2008, Ch. 4), or Finland, Norway and Sweden (Meyer 2001; Føllesdal 2000); see also Meyer (2021a, Section 5.3). 6 To my knowledge no authors have discussed the supersession thesis within the context of past injustices committed against indigenous people in Argentina. 7 To my knowledge only David Heyd (2017, pp. 40-43), Janna Thompson (2017, pp. 57-59) and Lukas Meyer (2004b, p. 33) have considered the supersession thesis within the context of the distribution of the remaining global carbon budget. There is also a connected discussion with climate change and the supersession thesis with regard to ecological refugees (Nine 2010; Kolers 2012). 23 compensation from a different angle. Instead of focusing on the supersession thesis from an ex-post perspective, to assess instances of possible future supersession gives us the opportunity to scrutinize the thesis from an ex-ante perspective.

These new two contexts of analysis may lead to a better understanding of how the distributive and the compensatory dimensions of justice can be reconciled. Although I will scrutinize both cases in length in the following chapters, I present them now, however, to highlight further challenges to the supersession thesis. The exploration in this chapter is merely preliminary. The process of constructing a strong version of the supersession thesis that I conduct in this dissertation will further enhance our understanding of how to reconcile the distributive and compensatory aspects of justice.

i. The Conquest of the Desert

Argentina has a long history of committing injustices against indigenous people. The most severe injustice perpetrated by past members of the Argentine state against indigenous people was the Conquest of the Desert in the late 19th century. From 1875 to 1878, the first stage consisted of digging a giant trench to contain the indigenous population along the frontier. The strategy, designed by Adolfo Alsina (first Minister of War during the Presidency of Nicolás Avellaneda), was to slowly advance Argentina’s southern frontier by pressing into indigenous territory. The second and most famous stage, started in 1878 and consisted of a set of aggressive military campaigns lead by Julio Roca (second Minister of War during Avellaneda’s Presidency). This stage ended when Roca’s troops reached Choele-Choel Island on May 25th, 1879. The last stage was led by General Conrado Villegas and ended with the surrender of chief (Logko) Sayweke in 1885. As a consequence of the Conquest of the Desert, many lands previously occupied by indigenous people were appropriated by past members of Argentina, thousands of indigenous people were killed or profoundly harmed, and many of the indigenous persons who survived such campaigns were forced to live in prisons or museums, or were expelled to the southern territories of what today are Argentina and Chile (Bustos-Videla 1964, pp. 44-56; Marimán-Quemado 2006, p. 113).

In cases like this, compensatory justice seems to require the perpetrator of the injustices, in this case, past members of Argentina, to provide reparations and material compensation to the indigenous people who suffered the injustices. However, the problem for the claims for compensation to be justified in the present is not only the fact that all

24 perpetrators and past victims of such injustices are dead, but also that current circumstances in Argentina might lead us to think that other issues have priority over the reparation of the historical injustices suffered by indigenous people in the late 19th century. For instance, Argentina’s current poverty rate is over than 42 percent, and more than 10 percent of the population lives in extreme poverty (INDEC 2021, p. 3). Further, these conditions will not improve soon. The COVID-19 pandemic has forced the Argentine government to take drastic measures8 that have severely constricted the economy9 and increased social inequality in several provinces (Bonfiglio, Salvia, and Vera, 2020).

If we consider that currently living people’s claims regarding their well-being are important, the case for asserting that the past injustice was superseded seems stronger. Compensatory justice usually requires that the perpetrator give the victim some measure of correction to counteract the harmful effects of wrongdoings. But, how can compensatory measures be justified if all those involved in the Conquest of the Desert are no longer with us? Even if compensatory claims are understood in collective terms, one of the required measures for compensating the historical injustice suffered by indigenous peoples is to give them back their ancestral lands. However, suppose that this is going to occur. Take, for instance, the case of the Mapuce10 people, the groups and communities currently most numerous and most active in their claims for receiving reparation for the historical injustice their predecessors suffered.11 Suppose the Mapuce people were to recover all their ancestral territory within the current borders of Argentina (the Puel Mapu). In that case, they would receive what is today the entire provinces of Neuquén and La Pampa, part of the provinces of Rio Negro, Chubut, Córdoba, and Santa Fe, half of the provinces of Mendoza and San Luis, and most of the province of Buenos Aires. This transfer of territory might create problems that could make the task of reducing the current poverty in Argentina more difficult. We might think that, in this case, it would be

8 For a detailed list of all the measures taken by the Argentine government for dealing with the consequences of the global pandemic, see https://www.argentina.gob.ar/coronavirus/medidas-gobierno (Accessed April 26th, 2021). 9 According to the World Bank, the Argentine economy contracted 9.9% in 2020. https://www.worldbank.org/en/country/argentina/overview (Accessed April 26th, 2021). 10 I use the term Mapuce and other words in Mapuzudung according to the grapheme Ragileo as this is the grapheme the Mapuce people adopted of their own volition as an exercise of their linguistic autonomy (Piciñam et al 2010, p. 6). 11 According to the last population census performed by the Argentine National Institute on Statistics and Census (INDEC), in 2010, 205,009 people recognized themselves as Mapuce or as descendants of Mapuce people. According to that census, Mapuce people are 21.5% of the indigenous population in Argentina (2012, p. 281). 25 better to have a forward-looking understanding of justice that focuses only on thinking about how people could escape poverty and inequality. Furthermore, in the light of current circumstances of poverty and inequality, we might think that backward-looking reasons for compensatory justice should no longer count. Assuming this, it is then reasonable to claim that those historical injustices committed during the Conquest of the Desert against the Mapuce and other indigenous peoples, at least with respect to territory, might have been superseded. Thus understood, in the light of the supersession thesis stated above, it seems that the Argentine state no has longer a duty to redress the historical injustice committed against indigenous people. In this view, the current situation of poverty and inequality shifted the temporal orientation of justice. Now, in Argentina, the weight of backward-looking reasons for compensating indigenous people seem to have been overridden since they conflict with forward-looking need-based reasons of distributive justice.

This conclusion is problematic for those who believe that victims of injustices deserve some form of reparation or compensation in situations in which even the perpetrators live in conditions of generalized poverty and inequality. For this reason, a plausible and sustainable version of the supersession thesis should allow for some sort of compensatory measures even in those cases in which many people whom the reparative duty would probably burden are below the relevant standard well-being. However, to not lose the advantages mentioned above, the supersession thesis should still prioritize the present needs of those who are currently or are likely to be below the relevant baseline of well-being.

ii. Climate Change and the Distribution of the Remaining Global Carbon Budget

A second problem must be resolved for the supersession thesis to be considered a defensible view for dealing with historical injustices. I claimed that one of the most valuable features of the supersession thesis is that it helps in understanding how changes in circumstances affect what justice requires. However, as stated above, the thesis requires perpetration of some injustice to be applicable. Cases in which it is difficult to explain why injustices have occurred seem to be beyond the scope of the supersession thesis. It does not matter that we might think that changes in circumstances are normatively relevant for these situations.

A clear example of this issue is highlighted when we consider how to distribute the burden of combating climate change. Since anthropogenic climate change is associated with emissions of greenhouse gasses (GHGs), a considerable part of the discussion is about how these emissions ought to be distributed among countries. It is known that “highly industrialized countries are causally responsible for more than three times as many emissions between 1850 and 2002 than developing countries” (Meyer 2013, p. 603). Although these emissions will do more harm to the members of developing countries than the members of developed ones, it is challenging to explain why such emissions were wrongful.12 Both the excusable ignorance problem of the past polluters (Meyer and Sanklecha 2017, p. 8) and the non-identity problem (Parfit 1984, Ch. 16) speak against considering the historical emissions of developed countries as unjust. However, as Lukas Meyer (2013; 2004b) has argued, even if we accept this fact, historical emissions can still be taken into account in the distribution of the remaining global carbon budget. On Meyer (2013), undeserved benefits and underserved harms owed to past emissions should be redistributed between the industrialized high emitting countries and the low emitting developing ones (pp. 611-612).

The last consideration is the basis for claiming that developed countries are responsible for redistributing undeserved benefits and harms owed to past emissions with developing countries. However, this obligation does not seem to be fulfilled in the present. The fact that developed countries are not fulfilling the duty to redistribute underserved benefits and harms with developing ones seems to constitute by itself an injustice that calls for compensation. Understood in this way, it seems that the duty to compensate the non-redistribution of underserved benefits and harms depends on distributive consideration. Thus, concerning benefits and harms owed to past emissions, if circumstances change so that the world is no longer distributively unjust in the future, it seems that the present injustice will be superseded. This means that the duty of developed countries to provide compensation for not having redistributed underserved benefits and harms with developing countries will no longer exist.

The fact that changes in circumstances may supersede the injustice in the future is problematic for at least two reasons. First, not to fulfill the duty of redistribution of

12 I use the distinction between developed and developing countries as it was used by the United Nations Framework Convention of Climate Change (UNFCCC), the Paris Agreement. In referring to this distinction one might also think in the terms of “global north” and “global south” respectively. I use the terms developed and industrialized countries interchangeably. 27 undeserved benefits and harms can generate further harms associated with that injustice. If there are further harms to be compensated, it seems that even if circumstances change in the future so as to remediate the problem that gave rise to the duty of redistribution, developed countries might still have the duty to compensate developing countries for the time period in which they did not fulfill their duty of redistributing undeserved benefits and harms owed to past emissions of GHGs. The problem with allowing compensation in such circumstances is that it seems to require turning the future distributively just world into a distributively unjust one. The version of the supersession thesis to be used should prevent us from claiming that carrying out measures of compensation in cases like this requires turning a distributively just world into a distributively unjust one.

Second, the fact that circumstances may change in a way that will cause the world to be distributively just is a perverse incentive for developed countries not to fulfill their duty to redistribute undeserved benefits and harms with developing countries. This is the moral hazard objection that states that the supersession thesis creates a perverse incentive for wrongdoers to commit injustices hoping that after a certain time, changes in circumstances transform the situation into just one. The objection is that “[the supersession thesis] furnishes a reward for injustice, provided that the injustice can be sustained for long enough” (Waldron 2004a, p. 248). This is a real problem that the supersession thesis has to avoid or, at least, minimize. The supersession thesis must be equiped with the tools necessary to minimize perverse incentives for breaching duties and commiting injustices because of possible future changes in circumstances.

To summarize, I asserted that the supersession thesis could be understood as an attempt to reconcile two purposes of justice; on the one hand, to live in societies that are distributively just and, on the other hand, to live in societies in which historical injustices are rectified or compensated. The supersession thesis asserts that, without disregarding the existence of reasons for compensating historical injustices, the strength of those reasons may be overtaken by those of distributive justice. As Waldron states, “historic injustices predicated on the status quo ante may be superseded by our determination to distribute the resources of the world in a way that is fair to all of its existing inhabitants” (1992b, p. 26). The underlying idea behind the thesis is that the principles of justice should tend to prevent people from being below a certain baseline of well-being. This valuable feature of the thesis suggests that the duty to compensate historical injustices might be put, at least, on hold if the perpetrator of the past injustice is currently living

28 below the relevant baseline of well-being. In this case, the supersession thesis as outlined above seems to require that we focus on a distribution appropriate for present circumstances in which we should prioritize that everyone (victims and perpetrators) has enough. In this version of the supersession thesis, present needs shift the temporal orientation of justice: forward-looking reasons of distributive justice supersede backward-looking reasons for providing compensation.

However, as the injustices suffered by indigenous people in Argentina help to show, a better version of the supersession thesis should allow for some form of compensation even in situations in which the level of well-being of certain perpetrators is below the relevant baseline of well-being. Additionally, as the climate change situation shows, to avoid or to minimize perverse incentives for committing injustices, the supersession thesis should also be able to claim that compensatory measures are required even in those situations in which the world might be distributively just in the future. However, compensatory measures should not alter the just distribution of goods. Therefore, for being a plausible way of reconciling the distributive and the compensatory dimensions of justice, the supersession thesis must be in accordance with the following four requirements:

i. (Necessity) It should prioritize the concern for those people who are below the relevant threshold of well-being (whether they are perpetrators, victims, or third parties). ii. (Compensation) It should allow for historical injustices to be compensated even when the perpetrators live below the relevant threshold of well-being. iii. (Moral hazard) It should avoid or, at least, minimize perverse incentives for committing injustices or breaching duties. iv. (Distribution) If historical injustices ought to be compensated in distributively just worlds, compensatory measures should not alter the just distribution of goods.

III. Outline of the Project

So far, I asserted that this dissertation aims to develop the supersession thesis in a way capable of reconciling the distributive and compensatory dimensions of justice in contexts of historical injustices. It should justify under which circumstances, if any, the temporal orientation of justice changes. For achieving this goal, I proceed as follows. The first task is to explain whether it is possible to speak about historical injustices. In

29 assessing this possibility, in Chapter One, I examine the Conquest of the Desert in late 19th century Argentina. The chapter’s general aims are to show that the Conquest of the Desert constitutes a case of historical injustice perpetrated against indigenous people and how the task of making moral judgments about the past should be carried out. The main point to be argued arises in response to the objection of those who claim that the Conquest of the Desert was not unjust or wrong since, at that time, people generally believed that what they were doing was not wrongful. The objection here is that we cannot judge past people for failing to comply with moral standards unavailable for them in their own time. In countering this challenge, I will argue that it is not objectionable to judge past events as unjust with moral criteria we consider valid today. However, I recognize that 19th century Argentine elites did not believe that pursuing the Conquest of the Desert was unjust which gives rise to a different objection. Namely, that even if these past acts and policies were unjust, those who performed them could not be blamed. This is because no one can be responsible for failing to comply with moral standards unavailable when they lived. However, I will show that when the Conquest of the Desert was carried out, there were valid moral standards upon which those who performed these military campaigns could be morally criticized for their past actions now, using the criteria available in the past. Finally, I argue that even if my argument fails, past members of the Argentine state were remedially responsible for the outcomes brought about by these military campaigns and, at minimum, they should have restituted the benefits obtained as a consequence of the Conquest of the Desert. In order to claim that a historical injustice is normatively relevant in the present for discussions about how to reconcile the distributive and compensatory aspects of justice, it must be possible to identify victims and perpetrators of that injustice. Requiring the identification of perpetrators and victims is relevant because the commiting of some injustice generates a correlativity between them. This correlativity requirement lies at the core of all viable accounts of compensatory or corrective justice. As Coleman asserts, “[i]n every account of corrective [or compensatory] justice, there is presumed to be a relationship between the parties that make the claims of corrective justice appropriate to them – and not to others” (1995, p. 66). This means that those who have suffered a particular injustice do not have claims against everyone but against someone in particular. To show this in the late 19th century does not seem to be problematic. However, many years have passed since 1885, and all the people who were involved in those military

30 campaigns are dead. Given that they are no longer with us, it is difficult to explain how the correlativity between victims and perpetrators can be maintained over the years.

In Chapter Two, I show that even if those people involved in the Conquest of the Desert are dead, this fact is insufficient for showing that the injustice was superseded. I respond to the objection that asserts that even if military campaigns might have negatively affected past indigenous people's level of well-being, it is oncoherent to claim that the same does hold with respect to currently living indigenous people. This would be so since, arguably, had the Conquest of the Desert not being carried out, they would not be better off. Instead, they would not have existed at all. Drawing on Lukas Meyer’s (2003; 2006; 2021a) threshold notion of harm, I will argue that presently living indigenous people ought to be considered negatively affected by the Conquest of the Desert if, as a consequence of such a set of policies, they have a level of well-being that is below a normatively relevant threshold.

Indigenous persons can also be affected as members of the group or community they belong to. Concerning those demands held in the name of some collective entity, it is sometimes argued that for a claim for compensation to be justified, it has to be shown that the members of indigenous groups who are claiming reparation today must be part of the very same entity who suffered past injustices. However, the history of divisions and fusions among indigenous groups in Argentina has led to changes in their identity. I argue that currently living claimants do not need to be part of the same entity whose members suffered injustices many years ago. For identifying the proper recipients of compensation, all that is necessary is that the group who suffered the historical injustice continues to exist in the present. It requires a continuous collective memory between the members of the group who is claiming today and those of the group who suffered past injustices. If this can be shown then, concerning those claims made in the name of the collective entity, the correlativity between the perpetrators and victims is not necessarily broken by changes in the identity of the groups involved in the original injustice.

However, it is one thing to claim that those groups involved in some past injustice have endured into the present, and a different thing is to assert that currently living members of the group who committed the injustice have reasons to provide compensation to currently living members of the groups affected by the lasting impacts of the historical injustice. In Chapter Two, I also show why non-indigenous Argentines today, and those who perpetrated the Conquest of the Desert, ought to be regarded as members of the same 31 community. In particular, by relying on Lukas Meyer’s notion of collective inheritance (1997; 2001), I argue that if Argentines today claim that they themselves, and those who bequeathed them certain goods, are part of the same community, they cannot consistently reject such a membership when the very same people legated them certain collective evils. Based on this account, I explain why present-day Argentines still have strong reasons for redressing the historical injustices perpetrated by their predecessors.

The injustice I consider in the first part of the dissertation consists of the violation of indigenous peoples’ territorial rights, particularly the territorial rights of the Mapuce people by the past members of the Argentine state. Roughly speaking, territorial rights have two aspects: the right to jurisdiction and the right to land and other natural resources. In Chapter Three, I discuss the first aspect. Although I already argue that such a right was violated by past members of the Argentine state in Chapter One, my purpose is different in this chapter. In Chapter One, I consider whether we can claim that past members of Argentina can be held morally responsible for what they did by appealing to valid moral criteria available when they lived. In contrast, in Chapter Three, I examine in detail what I consider the most powerful argument for claiming that the imposition of the legal and institutional order over the surviving members of the indigenous people during the Conquest of the Desert was not unjust. I refer to the principle of proximity. This principle prescribes the duty to form a state amongst those who live in the same territory and are likely to come into conflict with each other. I argue that even if this principle is accepted, the imposition of the institutional order of the Argentine state over indigenous people during the Conquest of the Desert was unjust.

However, even if this is so, it remains open whether relying on the institutions of the Argentine state in matters concerning indigenous people and their interests is still unjust. For this reason, in Chapter Three, I also investigate whether relying on the institutions of the Argentine state for dealing with issues that concern indigenous people, whatever the solutions might be, is justified. I argue that forward-looking reasons are relevant and therefore Argentine institutions should have the authority to adjudicate conflicts even if indigenous interests are at stake. Nevertheless, I show that backward- looking reasons still carry weight even in the hypothetical case in which Argentine institutions can protect indigenous people's welfare rights, minimally fulfill their demands of distributive justice, and provide public goods. Drawing on Anna Stilz’s distinction between the makers and takers dimensions of citizenship (2015; 2016; 2019), I argue that

32 backward-looking reasons require that indigenous people be configured as makers of the institutional system they live under. The demands for being makers of the institutional system which are necessary for indigenous people to be able to live autonomous lives are not superseded by the fact that the institutional system they live under satisfies welfare and distributive justice concerns. If this is accepted, then specific measures should be carried out with the intention of configuring indigenous people as makers of Argentine state institutions.

Having argued that the Conquest of the Desert constitute a case of historical injustice, that the effects of that injustice negatively affect indigenous people individually and collectively in the present, that present members of Argentina have reasons to redress the lasting impacts of that injustice, and that among the tasks for redressing the past injustice includes the construction of a legitimate institutional order with respect to indigenous people, in Chapter Four, I consider the second aspect of territorial rights. In this chapter, I directly face the conflict between reasons of compensatory and distributive justice. I analyze indigenous collective claims for recovering the lands they occupied before the Conquest of the Desert. I argue that, concerning indigenous claims for lands, changes in circumstances that affect a particular distribution of goods cannot supersede, by itself, the reasons for providing compensation. I highlight how injustices can create some reasons for giving compensation. In particular, based on John Gardner’s continuity thesis (2018) I argue that these reasons trigger a fallback or secondary duty whose existence is owed to the non-fulfillment of the primary duty of not committing injustices. I contend that, to the extent that some of the reasons why past members of the state of Argentina had the duty not to appropriate indigenous lands can still be conformed to, the obligation to provide compensation to indigenous populations remains in the present. However, I assert that changes in circumstances might vary the kind of compensation owed.

Further, I recognize that, under certain conditions, it might be justified to temporarily suspend compensation for historical injustices. In a situation of scarcity, as Waldron’s version of the supersession thesis argues, it seems reasonable to prioritize that everybody has enough. However, this does not show that backward-looking reasons for providing compensation no longer have moral weight. As Timothy Waligore (2017) argued, they might remain dormant in the background, hoping for circumstances to change again. It could be, however, that material compensation is no longer ever possible.

However, in such a case, as I argue in the last section of Chapter Four, backward-looking reasons for providing symbolic compensation gain strength. If the chapter’s argument is correct, I will have shown that backward-looking reasons for providing compensation are still relevant when currently living people are living in situations of need and scarcity.

If this is accepted, then the version of the supersession thesis that I defend, which asserts that current circumstances of need and scarcity do not change the temporal orientation of justice but only the specific measures needed for complying with justice’s demands, holds true. Understood this way, my view meets two of the requirements stated above: [i] necessity and [ii] compensation. It meets the necessity requirement because the concern for those below the relevant threshold of well-being would be prioritized. Additionally, since situations of scarcity do not preclude the provision of symbolic compensation to the victims of the injustice, the thesis allows for historical injustices to be compensated for even when the perpetrators live below the relevant threshold of well- being. Therefore, it also meets the compensation requirement. Since I argue that present circumstances of need could not by themselves supersede historical injustices and that claims for material compensation can re-arise once circumstances change again, then it seems that the thesis also has tools for inhibiting perverse incentives for committing injustices. For this reason, it also meets the [iii] moral hazard requirement.

However, the historical injustices committed against indigenous people in Argentina in the late 19th century are not clear enough grounds for assessing whether historical injustices should be compensated in distributively just worlds. This is because present day Argentine living conditions are unjust. Thus, to evaluate whether the version of the supersession thesis I defend also meets the [iv] distribution requirement, I will rely on my second case: climate change. The analysis of this case provides the opportunity to expand the scope of the supersession thesis. Unlike the Conquest of the Desert, climate change needs not be understood as a case of past injustice. Still, I argue that past acts and policies cause present people to have specific duties that, if not fulfilled, might give rise to injustice in the present. As I will show, this injustice could be superseded because of changes in circumstances in the future. This allows us to assess the supersession thesis from an ex-ante perspective. To consider this thesis from an ex-ante perspective forces us to focus more directly on how to avoid perverse incentives for not fulfilling our duties of justice, by hoping for future changes in circumstances that supersede them.

However, to see how some present injustice can be superseded in the future, first, it must be shown how such injustices are created. This is demonstrated in Chapter Five and Six. In Chapter Five, I begin by noting that anthropogenic climate change is associated with GHGs emissions and therefore much of discussion revolves around how emissions ought to be distributed among states. However, as I show, unlike other resources, it is unclear why GHGs emissions should be considered a limited resource susceptible to distribution. By relying on Lukas Meyer's writings (2013; Meyer and Roser 2006, 2009; Meyer and Stelzler 2018; Meyer and Pölzler, forthcoming), I argue that intergenerational justice considerations helps to explain why GHGs emissions ought to be considered a limited resource. I contend that the upper limit of GHGs emissions should be set to not wrongfully cause future people to suffer severe harm. First, I explain how our emission-generating activities can harm future people and, second, under what conditions such harm is also wrongful. Concerning the first issue, I advocate the threshold conception of harm and explain that if we do not reduce our emission levels our emission- generating activities can harm future people in this sense. Regarding the second issue, I argue that future people will have rights that we can violate if we wrongfully harm them by our emission-generating activities. Finally, by relying on Meyer and Pölzler’s forthcoming article, I assert that need-based sufficientarian considerations should be used for specifying the threshold of intergenerational justice.

Once I have defended that emissions should be considered a limited resource, the next question is how the remaining available emissions, the global carbon budget (GCB), should be distributed among countries. In this regard, I briefly defend the equal-per-capita view as a plausible way of distributing the remaining GCB before considering historical emissions. This view needs to be qualified by taking into account historical emissions. This qualification justifies that developing countries have a larger per-capita share of the remaining GCB than the share they would have had historical emissions not been taken into account (Meyer 2013; Williges et al., under review). I will provide two lines of argument for supporting this view. The first, found in the last section of Chapter Five, is built upon the idea of collective inheritance, developed in Chapter Two. In particular, I make use of the notion of collective public bad (Meyer 2005), and I highlight that because present members of developed countries inherited collective public bads, they should allow present-day members of developing countries to have a larger share of the GCB

35 than the share they should have received had historical emissions not been taken into account.

In Chapter Six, I provide the second line of argument for justifying the duty of present members of developed countries to give developing ones a larger share of the GCB than the share they should have received had historical emissions not been considered. I contend that having been benefited at the expense of another generates a remedial duty to provide restitution, in this case, towards currently living members of developing countries. In support of this view, I argue that the doctrine of unjust enrichment is a helpful tool for specifying under what conditions the beneficiaries from a certain state of affairs can be justifiably regarded as responsible for remedying it. I argue that present living members of developed countries have benefited from historical emissions, that those benefits were obtained at the expense of the currently living members of developing countries, and that those benefits are unjust.

Like the argument based on collective inheritances, this view has to respond correctly to two objections. First, it should explain why currently living members of developed countries can be held remedially responsible even if they did not cause the current climate state of affairs. Second, it should also clarify that this responsibility holds even if historical emissions were released in a state of excused ignorance. Therefore, if my argument is successful, neither of these lines of argument justify the duty of giving to the present members of developing countries a larger share of the remaining GCB on the basis that historical emissions were unjust. For that reason, the position I defend seems to be particularly vulnerable to the moral hazard objection upon which the supersession thesis creates perverse incentives for not fulfilling our duties of justice, hoping that over time, changes in circumstances transform the state of affairs into a just one.

In Chapter Seven, I illustrate how both lines of argument count with enough resources to minimize perverse incentives for not fulfilling the required duty. The first line of argument (developed in Chapter Five) for justifying that developed countries have a duty to permit developing ones a larger per-capita share of the remaining GCB than the share they would have had historical emissions not been taken into account is grounded on the notion of collective inheritance. In particular, I argue that the perverse incentives for not fulfilling the duties that stem from having inherited a public bad can be minimized

36 as soon as we realize that the collective inheritance might be transformed into a collective public evil.

Concerning the second line of argument (developed in Chapter Six), I argue that the perverse incentives for not complying with the duty of restitution that allows developing countries to have a larger per-capita share of the remaining GCB can be minimized once we consider that the failure to fulfill this duty constitutes in itself an act of injustice. Further, I show that failure to fulfill this restitutionary duty causes additional harm that is not necessarily remediated by changes in circumstances that might repair the conditions that gave rise to it. If a change in circumstances corrects the original state of affairs to be remediated, the additional harm that stems from the time in which the restitutionary duty is breached might still call for compensation. If this argument is sound, then the view I advocate reduces the perverse incentives for committing injustices that stem from possible future changes of circumstances.

Finally, I will show that the duty to compensate those additional harms that stem from not fulfilling the original reparative duty, in some cases, can be understood as reasons that count in favor, rather than in opposition, of the correction of (wrongful) deviation of the baseline of distributive justice. This is because a distributively just world also needs to consider how the state of affairs is brought about. However, this need not always be the case. In some circumstances, providing compensation might seems to be in tension with distributive justice concerns. For minimizing those tensions, I appeal to a version of need-based sufficientarianism. In that view, when people are below the threshold of sufficiency, we should prioritize that people have enough. Below the threshold, distributive justice-based reasons are the most important ones. This is according to the necessity requirement [i]. Still, the fulfilment of this requirement does not preclude the possibility of providing compensation. However, when the perpetrator is below the threshold, to not infringe on the necessity requirement, the only form of compensation that might be available is symbolic. Still, this would be according to the compensation requirement [ii], since symbolic compensation is also grounded on backward-looking reasons that stem from the commission of past injustices.

Instead, when people are above the threshold, the reasons for providing material compensation become more important and might even trump those of distributive justice. Providing compensation in these situations need not go against the distribution

37 requirement [iv]. According to this requirement, if historical injustices ought to be compensated in distributively just worlds, compensatory measures should not alter the just distribution of goods. Need-based sufficientarianism allows for compensations above the threshold without the need for altering the just distribution of goods, provided that in granting compensation, people do not fall below the threshold of sufficiency. If the argument succeeds, I will have shown that the supersession thesis can plausibly accommodate the four requirements I outlined above and, therefore, can reconcile the distributive and compensatory aspects of justice in discussions about how to respond to historical injustices. We would then have better insight into the temporal orientation of justice.

IV. Principles, Examples, and Reflective Equilibrium

This work uses reflective equilibrium as a method for obtaining the normative principle able to reconcile the distributive and compensatory aspects of justice. In this section I explain how I intend to use it within the context of plausible responses to historical injustices. Historical injustices and their lasting effects, and situations of present inequality and scarcity of resources and other goods give rise to circumstances in which the interests of different people and groups conflict. These conflicts justify trying to find normative principles that help in dealing with them. This is because principles of justice are meant to determine how people should act or live and how institutions should be designed. In discussions about how to respond to historical injustices, there is often a clash of interests between many people and groups. Compensating for historical injustices might conflict with the interests of those who have stronger claims based on distributive justice concerns. Conversely, to initiate policies that might advance the interests of those who have stronger claims based on distributive justice considerations might conflict with the interests of those who seek compensation. The version of the supersession thesis we aim for should reconcile the compensatory and distributive aspects of justice. It should explain under which circumstances, if any, the temporal orientation of justice changes. In this way, the thesis should provide guidelines for explaining under which circumstances we have reasons to redress historical injustices and how strong they are. To obtain such a normative criterion, I use the reflective equilibrium as a method. Nelson Goodman first formulated it in his essay Fact, Fiction, and Forecast (1955) in the field of logic. The method is called reflective because we know both what principles

38 conform to our intuitions as well as the premises of their derivation. It is called equilibrium because, in the end, our principles match with our intuitions (Rawls 1999, p. 18). According to Daniels, such a method can be conceptualized as the endpoint of a process in which our beliefs regarding some fields are reflected and reviewed:

The method of reflective equilibrium consists in working back and forth among our considered judgments (some say our “intuitions” though Rawls (1971), [who named] the method, avoided the term “intuitions” in this context) about particular instances or cases, the principles or rules that we believe govern them, and the theoretical considerations that we believe bear on accepting these considered judgments, principles, or rules, revising any of these elements wherever necessary in order to achieve an acceptable coherence among them (Daniels 2016, Section 1).

Thus described, the method corresponds to what is called wide reflective equilibrium. This version differs from narrow reflective equilibrium since, while the latter intends to find coherence only between (1) a set of considered moral judgments (intuitions) and (2) a set of moral principles, wide reflective equilibrium also intends to find coherence with (3) a set of relevant background theories.13 Considered moral judgments are judgments that are not the result of inferential reasoning. They must be intuitive, certain, preceded by a careful investigation of the facts of the case, and the agent who formulated them must not be punished or rewarded owed to his/her assertion (Rawls 1951, pp. 181-183). A normative (or moral) principle is neither an analysis of the meaning of some moral terms nor an inquiry about what people intend to claim when they perform moral judgments about particular cases. It is (roughly) a satisfactory explanation of the total set of considered moral judgments capable of supporting that some interests have preference over other conflicting interests (Rawls 1951, pp. 184-186). By background theories, we refer to the set of moral and non-moral rival theories capable of supporting different kinds of principles and intuitions. Among the background moral theories are utilitarianism, Kantian ethics, contractualism, virtue ethics, etc. Non-moral background theories include theories of the role of morality in society, different theories about what a person or a group is, etc. (Daniels 1979, p. 260; 2016, Section 3.2.1).

Concerning the supersession of past injustices, we would reach narrow reflective equilibrium, for instance, when we obtain coherence between the normative principle that

13 The labels of wide and narrow reflective equilibrium stem from Rawls’ 1974 essay: “Independence of Moral Theory,” Proceedings of the American Philosophical Association 49 (Rawls 1993, p. 9). 39 gives priority to the present needs of the people who are currently or are likely to be below a relevant threshold of well-being, and those considered moral judgments upon which even in those situations backward-looking reasons for providing compensation still have moral weight. Here, the supersession thesis as a normative thesis has to be contrasted with our considered moral judgments concerning how historical injustices should be redressed. For obtaining those considered moral judgments, I will generally appeal to the two cases referred above (Section II): First, to the injustice suffered by indigenous people in Argentina in the late 19th century, and how we think that we should respond to it in the present. Second, to the injustice that developing countries are currently suffering because developed countries are not fulfilling their international climate duties. Coherence could be reached either by reformulating the principle to make it compatible with the considered moral judgments, or by showing that the cases have certain special properties that make the principle not applicable to them or, finally, by dropping the principle or the considered moral judgment if one of them is indefensible.

To reach wide reflective equilibrium, coherence between moral principles and considered moral judgments is insufficient. Our considered moral judgments and normative principles must also be coherent with our background theories, such as those of personal or group identity, the function of morality in society, etc.14 To the extent that

14 Traditionally, it is claimed that reflective equilibrium is better understood from a coherentist point of view, being in a certain way incompatible with foundationalist accounts (Dworkin 1975, pp. 36-37). According to coherentism, moral beliefs are justified by their relation (particularly their inferential relation) with other beliefs (Sayre-McCord 1996, p. 140). Conversely, on foundationalism, some beliefs are self- justified, at least in the sense that their justification does not depend on their relationship with other beliefs (McMahan 2013a, p. 110). According to coherentist views, reflective equilibrium is obtained when consistency between the three levels of belief has been reached. However, foundationalist thinkers can also appeal to reflective equilibrium as a method. This is of interest for this dissertation since I hope that some foundationalist thinkers can accept the conclusions we arrive at here. Jeff McMahan has proposed a way of using reflective equilibrium within a foundationalist framework, arguing that we may begin with intuitions about particular cases. Once the intuitions of others challenge our own intuition, McMahan says, “it is natural to respond by appealing to claims of a higher level of generality that imply or explain the intuition” (2013, p. 111). In this way, the credibility of the intuition is improved when it is subsumed to a plausible moral principle because the principle may identify the relevant moral properties implied in the intuition about the specific case (McMahan 2013, p. 112). McMahan (2013) continues that the principle has to be tested considering its implications with the other beliefs and the implications that emerge from other principles one accepts (p. 112). This is a demand for the moral principle not to commit us to something more implausible than what the rival principle requires us to accept. As within the coherentist framework we intend that all our beliefs be consistent with each other. Unlike coherentism, however, the achievement of greater coherence is not a criterion of justifiability but a feature that diminishes the likelihood of error in discovering the moral truth. Raz (1982), however, claims that although reflective equilibrium is consistent with moral realism (p.327), it has little to offer: “If morality is a social institution, then a certain degree of convergence within a society is to be expected. But it will not be best explained by the fact that people tend to converge because of reflective equilibrium. The explanation will be that they have the views they have because of their awareness of socially constituted moral facts” (Raz 1982, p. 328). 40 this would not be the case, we only have reached a narrow reflective equilibrium. The significance of arriving at a wide reflective equilibrium is given that the latter, unlike the former, can provide a normative account regarding moral justification (of principles and considered moral judgments) (Daniels 2016, Section 3.2).

There is a further methodological point worth noting. In this work, I often rely on different kinds of examples or thought experiments. The relevance of using examples for normative inquiries is that they provide opportunities to isolate and bring forth relevant properties or test considered judgments and moral principles. Lyons’ shipwreck scenario (1981) and Waldron’s waterholes examples (1992b) are thought experiments. In particular, the scenarios outlined by Lyons and Waldron are hypothetical examples. These kinds of examples represent situations that have taken place or could take place without forcing us to rewrite physics or change our basic conception of how the world actually works (Jamieson 1993, p. 484). The advantage of relying on these kinds of cases is that, without being imaginary examples, they allow us to isolate ourselves from actual circumstances and arrive at solutions with a greater degree of impartiality.15 This kind of example is a valuable tool for avoiding biases in the provision of considered moral judgments regarding specific circumstances.

It is worth noting that using hypothetical examples to assess the role of history, particularly for evaluating the effects of historical injustices, is dangerous. Abstract generalizations and hypothetical examples seem relatively incapable of permitting critical reflection on the role of history and how it might affect possible solutions of conflicting interests (Ivison 2000, pp. 370-372; Waligore 2016 and 2018). As reflection on the role of history and how past injustices might affect what justice requires in the present is one of the key questions posed in this dissertation, I cannot therefore rely only on these kinds of examples for obtaining a justifiable response. For this reason, in addition to hypothetical examples, I also draw on real or ostensive cases. Ostensive or real examples are taken from actual life. They indicate actual acts or people whose characteristics are morally significant (O'Neil 1986, p. 7). In particular, I will draw on real stories that reflect facts surrounding the Conquest of the Desert and the injustice that developing countries are currently suffering because developed ones are not redistributing benefits and harms

15 Imaginary examples, according to Jamieson, “involve logical possibilities that could occur only in a world different from ours” (1993, p. 684). 41 that stem from historical emissions of GHGs. One advantage connected with these types of examples is that they present concrete and real situations whose solution, doubtlessly, requires moral judgments.

However, the biggest problem with ostensive or real examples is that they rarely contain all the relevant normative properties. Moreover, even if these examples have all the relevant properties, the relation between the actual case and the moral problem to be analyzed should be guided by certain comprehension (necessarily indeterminate) of the significant moral aspects of the example (O'Neil 1986, p. 8). Again, these two problems could produce distortions in the considered judgments or moral principles they may support. For these reasons, to obtain justifiable moral principles the considered judgments or principles brought about by using real examples should also be tested in examples of a different sort, such as hypothetical ones. Still, relying on ostensive cases is unavoidable for making the normative principle we seek more robust. Otherwise, we will be unable to identify some considered moral judgments that, after they arise, will also have to be equilibrated with our normative principles. This conclusion is strengthened if we consider that the ultimate hope of this enterprise is to construct or identify a normative principle that helps individuals and groups in diminishing their conflicts as well as facilitating their future co-existence. My concern here rests not only on constructing or identifying true normative principles but also that those principles would be able to justify our actions and institutions concerning those who will be affected by them. To consider actual cases and how people would respond to them seems to be of utmost importance.

There is a final methodological point worht stressing. In obtaining a version of the supersession thesis capable of reconciling the distributive and compensatory aspects of justice in discussions of how to respond to historical injustices, I reconstruct and analyze the views and theories of great philosophers and political and legal theorists. Although I sometimes criticize these scholars views, I strive to follow two reading criteria advised by Rawls. The first criterion (taken from Mill) is that “[a] doctrine is not judged at all until it is judged in its best form” (Rawls 2007 p. xiii). For this reason, I try to present each author’s view in its best light or, as Rawls says, “in what I took to be its strongest form” (2007, p. xiii). The second criterion is to assume “that the writers we were studying were always much smarter than I was” (Rawls 2007 p. xiv). This requires a particular attitude to the texts characterized by supposing that when I object to the views of these scholars, they already see the point. Hence, as asserted by Rawls, the first task is “[to

42 look] for their way out, not mine” (Rawls 2007 p. xiv). Only after we have tried to find their way out of the objections we might have provided, I would add that we might also try to think of other possible responses to these objections.

V. Critical Morality and Practical Problems

In this section, I would like to respond to a general objection regarding the type of normative inquiry I intend to perform in this dissertation. As stated above, I pursue the construction of a normative criterion or principle according to which distributive and compensatory aspects of justice can be reconciled within the context of the discussion of historical injustices and aim to provide an account of possible and justified shifts to the temporal orientation of justice. This enterprise assumes moral universalism since the version of the supersession thesis I look for intends to be valid worldwide and my intention is to ground the supersession thesis on the best possible reasons. As we will see in further chapters, this might be problematic since, for instance, some indigenous people have in some respects different moral codes than non-indigenous people in Argentina. The same problem arises at a global level when we discuss responses to climate change. Therefore, it might be argued that since moral codes vary in space and time and among groups, there is no single criterion that could be accepted in all societies. Thus, it is worthless trying to find such a criterion.

The previous objection is a relativist challenge against universalism. Stated in those terms is held at the level of descriptive ethics. It claims that different societies subscribe to different moral codes and, hence, all of them are equally valid. As Carlos Nino points out, the response to this objection begins with recognizing some truth in it: different societies have, indeed, different moral codes. However, as he highlights, that fact “in no way affects the question of whether some moral conceptions can be grounded on better reasons than others” (Nino 1991, p. 42). The explanation of why from the fact that different societies have different moral codes does not follow that all of them are equally valid becomes apparent as soon as we realize that the objection confuses two levels of moral discourse.

In contemporary normative discussions, it is common to distinguish between critical and positive morality. Positive morality is “the morality actually accepted and shared by a given social group” (Hart 1968, p. 20). In contrast, critical morality refers to “the general principles used in the criticism of actual social institutions, including positive 43 morality” (Hart 1968, p. 20).16 Critical or ideal morality concerns those principles that are valid regardless of their social acceptance. In contrast, social or positive morality refers to those principles or moral judgments socially accepted regardless of their validity. Since this work is about finding or constructing a criterion of critical morality, and critical morality operates at a different level than social morality, from the fact that social morality varies in space and time it cannot be inferred that there is not a criterion of critical morality valid in every society regardless of its social acceptance.

It is, however, one thing to say that the relativist objection placed at the level of descriptive ethics fails, and a different thing is to claim that, at the level of critical morality, it makes sense to assume some form of moral universalism. There are several challenges to moral universalism, which stem from different versions of ethical relativism. Since this debate is pervasive and complex, it would not be realistic to summarize it here.17 However, it is necessary to highlight at least one argument supporting moral universalism since the conclusion to be obtained here intends to be valid among different groups of people. I endorse what Simon Caney (2005) calls the General Argument for Moral Universalism (pp. 35-38). Caney’s argument is as follows:

P1: There are some valid moral principles. P2: If some moral principle applies to some person who has certain relevant property X, it also applies to all persons who share that relevant property X. P3: All persons in the world have property X. C: Some moral principles apply to all persons around the world. Premise one (P1) rejects moral skepticism. Since my worry is only about how moral principles can apply to those with different moral codes and not moral skeptics, I will not discuss this premise here. I am assume it is correct.18 The point I want to emphasize is that I use the reflective equilibrium as a method (as specified above) for identifying or constructing the valid moral principle that applies to all relevant persons.

16 This is evident when we scrutinize the specific kind of problem Hart deals with when he highlights this distinction. The question is “whether the [legal] enforcement of morality is morally justified” (1968, p. 17). As Hart (1968) asserts, in that discussion, morality enters twice into question. I.e. is the legal enforcement of positive morality justified by some criterion of critical morality (p.17)? 17 Carlos Nino (1991, Ch. 2) provides a good summary of this discussion. 18 If someone firmly insists on denying such a premise, this person could read the rest of this work in a conditional form. I am willing to accept the weaker claim according to which, if there are some moral principles that applies to certain persons in virtue of having a property X, such principles apply to all persons who have the property X, and that all persons in the world have that property X. 44

Premise two (P2) is the less controversial one. As Caney asserts, “it simply affirms a truism” (2005, p. 36). It seems obvious that if a principle applies to a person in virtue of this person having the property X, that principle has to apply to all of those who held the property X. Sentences like P2 deny the kind of ethical relativism that claims that what is good or right for some person is not good or right for another, even when all the circumstances are relevantly similar. As Nino (2003) notes, sentences like the latter violate either the requirement of universalization or the requirement of consistency in making moral judgments (p. 377). It violates the demands for universalization of moral judgments if it is claimed that an action is right when some person performs it, but it is wrong when performed by another person in relevantly similar circumstances. It violates the requirement of consistency if it is claimed, for instance, that it is right that I perform this action, but someone might justifiably think that it is wrong that I perform such an action. This expression violates the consistency requirement since, by claiming that a specific principle applies to me, I implicitly deny that it does not apply to me. Therefore, I am also implying that if someone claims that such a principle does not apply to me, that person must be mistaken (Nino 2003, pp. 377-378).

The most controversial premise is P3, which claims that there is some common property X among all persons in the world. In supporting this premise, Caney (2005) asserts that the relevant property shared for all persons in the world is that all of them have certain common needs, capacities, and ends (p. 37). We might think about physical needs such as being free from suffering pain or the need for food, water, or health. Alternatively, we might think about the fact that all human beings are equal in a deep sense (Waldron 2017), or that they have a certain feature in virtue of which they should be treated as if they have the aspiration of being authors of their own lives (Rawls 1999). If at least one of these properties, goods, capacities, or ends is true, P3 is also true, and therefore, if P1 and P2 are also true, some moral principles apply to all persons around the world. Of course, stated in these terms, it must be conceded that the argument is merely tentative. Much more is required for it to be a robust defense of moral universalism. I hope that this dissertation helps explain how some moral principles apply to all persons in the world.

However, even if the argument is correct, some issues remain. The General Argument for Moral Universalism is about what Caney (2005) calls universalism of scope and form since it indicates the existence of some valid moral values that apply to everyone

45 in the world (p. 27).19 The problem is that to perform an activity of discovering or constructing universal values or principles at the level of critical morality might lead to the impression that the activity is too abstract to have any practical relevance. The objection is not that there could not be valid moral values or principles of critical morality. Rather, the objection is that since critical morality is too disconnected from local practices, it cannot motivate people to act as social or positive morality does. Hence, it seems pointless to argue at the level of critical morality for some universal principle or value since no universal criterion of critical morality may have practical relevance.

Against this objection, I offer three counterpoints. First, even if positive morality is the only type of morality that can motivate our acts, the objection fails since there is no clear-cut distinction between critical (or ideal) and positive (or social) morality. As Nino explains, “An ideal morality, when recognized, must be capable of becoming the positive morality of a society; and positive morality employs the criteria we try to satisfy, successfully or not when we formulate judgments about ideal morality” (1991, p. 60). Without the aspiration of being critical morality, social morality cannot exist since, as Nino highlights, “[t]he rules of positive morality originate in a kind of reasoning in which judgments are formulated which refer, not to those rules, but ideal principles” (1991, p. 64). If judgments of positive morality have motivational force, and they aspire to be criteria of critical morality, I cannot see why critical morality does not have motivational force as positive morality does. Thus, even if my inquiry is at the level of critical morality, it is guided nevertheless by practical concerns. This work aims to construct or identify principles according to which not only behaviors and public institutions can be assessed or designed but also norms of positive or social morality. Once positive morality does not match with recognized criteria of critical morality, there are reasons for the former to adjust to the latter and in favor of behaviors guided by positive morality to adjust to the newly recognized valid criteria of critical morality.

19 This kind of universalism differs from the universalism of justification which “refers to values that can be justified to everyone in the world in terms that they would accept” (Caney 2005, p. 27). For this work, the principle of critical morality to be obtained does not need universal justification. However, it matters that those who will be affected by the moral values or general principles of critical morality can accept them freely. Of course, since one of the cases in which I am going to examine the supersession thesis is the international distribution of the remaining GCB, and the other is about how non-indigenous and indigenous inhabitants in Argentina should relate to each other, a value or principle justifiable in terms that all affected parties of these cases can accept leaves us closer to arriving at some kind of universalism of justification. 46

Second, even if the previous argument fails, it is not clear that standards of critical morality do not motivate people. As I understand morality, it aims to solve conflicts and facilitate different forms of cooperation in social life without relying on force and coercion. If we want to act without coercing others, it seems that we have good reasons for being motivated by valid standards of critical morality, regardless of their social acceptance. Since one purpose of critical morality is to justify some behaviors that might affect others, critical morality is a helpful tool for coordinating different life plans among people without relying on force and coercion.

Third, if we combine the two previous points, we end up with an account of why carrying out research activities of critical morality is even more relevant when discussing problems that affect members of groups with different positive moralities. If the function of morality (positive and critical) is to help people solve disagreements and conflicts, and, if we intend to solve those conflicts without appealing to force or coercion, since every society constructs their positive morality by judgments about critical morality, to construct or to identify universally valid criteria of critical morality is of tremendous practical relevance for solving those conflicts without appealing to force and coercion. The hope is that the universal valid criterion of critical morality to be identified or constructed will be implicitly presupposed in different positives moralities. Therefore, if recognized, it might be accepted as a criterion of positive morality by all.

CHAPTER 1

ON HOW TO JUDGE THE PAST: THE CONQUEST OF THE DESERT

Introduction

In the introductory chapter, I explained that this work aims to identify an abstract principle or normative criterion capable of reconciling justice’s distributive and compensatory aspects. The hope is to find a version of the supersession thesis able to explain both the circumstances under which historical injustices have been superseded and how injustices should be redressed in those cases in which they are not. However, to be successful, I must show that it is possible to establish that some past acts or policies were unjust. I have already commented on making judgments about the past in the last section of the previous chapter. Nevertheless, much more needs to be said. In this chapter, I examine a specific late 19th century Argentine policy, the so-called Conquest of the Desert. The general aims of this chapter are to not only show that the Conquest of the Desert constitutes a case of historical injustice perpetrated against indigenous people but also to assess how the task of making moral judgments about the past should be carried out.

Given that any exercise of evaluating the past must start with a description of the events to be assessed, I begin by relating some facts regarding the Conquest of the Desert (Section I). This is not an easy task. It requires making decisions concerning those features believed to be of value in discussing and analyzing the specific event to be considered (Gargarella 2013, p. 68). I then highlight two objections to the unjust character of the Conquest of the Desert (Section II). Starting with the first objection, I reconstruct it in the best possible way and assert that, even so understood, it fails. This objection does not deny that indigenous people were harmed during the Conquest of the Desert. However, it claims that those harms can be justified. The rational is twofold. First, the benefits obtained by the Argentine state were enormous and, second, had Argentina not pursued these military campaigns, indigenous people would have suffered the same harm because Chile would have engaged in a similar military conquest (Section III).

I then analyze the position of those who claim that the military campaigns were not unjust or wrong since, at that time, people generally believed that what they were

48 doing was not wrongful. The objection here is that we cannot judge past people for failing to comply with moral standards unavailable to them in their own time. I counter that it is not objectionable to judge past events as unjust with moral criteria we consider valid today (Section IV). However, I recognize that in general 19th century Argentine elites believed that pursuing the Conquest of the Desert was not unjust. Therefore, the objection might be raised that even if these past acts and policies were unjust, those who performed them could not be blamed. This would be so since no one can be responsible for failing to comply with moral standards unavailable when they lived. However, I show that when the Conquest of the Desert was carried out, there were valid moral standards upon which those who performed the military campaigns can be morally criticized (Section V). Finally, I argue that even if my argument fails, past members of the Argentine state were remedially responsible for the outcomes brought about in these military campaigns (Section VI).

I. The Conquest of the Desert

On October 5th, 1878, during the Presidency of Nicolás Avellaneda, the Congress of Argentina enacted Law Nº 947 of which Section 1 authorized: “the Executive Office to invest up to the amount of one million six hundred thousand Pesos Fuertes (ps. Ftes. 1,600,000) in implementing the law of August 23rd, 1867,20 which established the border [of the country] on the left margin of the rivers Negro and Neuquén, prior submission or eviction of the barbarian Indians of the Pampa, from the Quinto and Diamante rivers to the two rivers mentioned above.” This was the formal starting point of one of the most important stages of the Conquest of the Desert, a series of military campaigns aiming to expand the Argentinian frontiers to the south of the country.21 However, the “desert” was not a desert at all but a vast region in which indigenous communities lived.

The Conquest of the Desert was publicly encouraged by the Argentine government. For instance, Julio A. Roca, second Minister of War of Avellaneda’s government, claimed in 1878:

20 This refers to Law Nº 215, of which Section 4 established: “If all or some of the tribes resist the peaceful submission to the national authority, a general expedition will be organized against them until they submit or pushed south of the rivers Negro and Neuquén.” 21 When I refer to the Conquest of the Desert, I also include Alsina’s campaigns. As I will highlight below, from 1875, Adolfo Alsina, the first Ministry of War during the Government of Avellaneda, started with his plan for the occupation of Patagonia. 49

We are, as a nation, involved in a conflict of races in which indigenous people carry over themselves the terrible anathema of their disappearance, written in the name of the civilization. Then, let us morally destroy that race, annihilate their springs and political organization, erase their order of tribes, and, if necessary, divide their families.22 Many of the aims announced by Roca were indeed carried out during the Conquest of the Desert. Several Mapuce (also called Araucanians), Tehuelche, and other indigenous people were killed, profoundly harmed, and imprisoned (Marimán-Quemado 2006, p. 113). Measures intended to prevent births within the indigenous communities were also taken (Delrio, et. al. 2010, pp. 140-144). Further, some of those who survived such campaigns were confined to prisons or labor camps. Typical cases that exemplify such confinement include the Martin Garcia Island in Buenos Aires or the Valcheta Camp in the province of Rio Negro.23 Some Logkos (chiefs) were kept captives in museums in Buenos Aires, Mar del Plata, and La Plata (Mariman-Quemado 2006, p. 113).24

On May 25th, 1880, Julio Roca announced that the expedition had reached the river Negro and that the Argentine army had occupied Choele-Choel Island. The Conquest of the Desert was for Julio Roca a success story. His leading position during an important stage of the military campaigns helped him gain enough political support to be elected President of Argentina in 1880.25 After Roca became President, the next stage of the military campaigns was led by Conrado Villegas and ended on January 1st, 1885, with the surrender of chief Sayweke (Martinez-Sarasola 1998, p. 146).26

One substantial consequence of the Conquest of the Desert is that Argentine territory increased by around 50 million hectares (Radovich 2003, p. 88; Hasbrouck 1935, p. 195). According to the Mapuce communities, most of that territory constitutes the Puel Mapu (Argentine Pampas and North Patagonia), which, together with the Gulu Mapu

22 Cited by Svampa (2016, p. 42). Unless it is stated differently, all translations from Spanish to English are of my own. 23 See Papazian, Musante & Perez (2014, pp. 71-83), see also Bustos-Videla (1964, p. 55). 24 For example, in the Museum of Natural History of La Plata, the dead bodies of indigenous people killed during the Conquest of the Desert and the bodies of those indigenous who died in the museum were exposed until 2006 (Svampa 2016, p. 46). 25 Julio Roca was the 4th (1880-1886) and the 9th (1898-1904) Constitutional President of Argentina. 26 Gaining control of the southernmost regions of the territory by the Argentine state, from the Negro and Neuquén rivers to the current province of Tierra del Fuego, did not require military expeditions. Private companies and settlers were charged with this task (Bandieri 2000, p. 134). See also Martinez-Sarasola (1998) on how Yámanas and Onas suffered injustices in the current territory of Tierra del Fuego (pp. 157- 160). 50

(current area of Chilean Araucania region), compose the Waj Mapu, their historical territory.

During Julio Roca’s presidency, the Argentinian government enacted Law Nº 1628 of 1885. According to this law, the lands previously occupied by indigenous people were transferred to the expeditionary to the Desert (Bandieri 2000, p. 155).27 This policy generated a displacement of the indigenous people to zones that at the time were considered unproductive, unfertile, and without value for ranching or agriculture (Aguirre 2017, p. 80). One relevant consequence of this policy was that a small number of landowners acquired most of the lands (Radovich 2003, p. 88).28 Another important consequence of the Conquest of the Desert was that those indigenous survivors, who were neither expelled nor imprisoned, were forcibly made Argentinian citizens (Quijada 2006, p. 433).29 In the late 19th century, indigenous people lost their territory because of the actions and policies of past members of the Argentine government and society.

II. The Denial of the Unjust Character of the Conquest of the Desert

Although it seems clear that the Conquest of the Desert constitutes a massive injustice committed against indigenous people during the late 19th century,30 such a normative assessment of those facts is contested in the current public debate in Argentina. For instance, after reviewing some features that he thinks relevant for describing the Conquest of the Desert, the Argentine historian Isidoro Ruiz-Moreno asserts:

It arises from this detail – and it must be emphasized – the lack of consistency with which some writers blame the military leaders of the Desert for killing the Indians against whom they were fighting. This lack of scientific rigor reveals that some writers unscrupulously try to undermine the heroic and positive action of having concluded with terrible conditions of life on the border and having doubled the size of our country, making it possible to take advantage of its wealth (2009, pp. 117-118).

27 This legal regulation came after Law Nº 947 of 1878 that stipulated payment in land to those who financially support the military campaigns which expelled indigenous peoples from their territories (García- Gualda 2021, p.135). 28 In the extreme, 8.5 million hectares passed into the hands of 381 persons (Rock 1986, p. 154). 29 This was according to the Law Nº 346 of 1869, still valid nowadays, whose Section 1(1) states: “Argentines are: all persons born or to be born in the territory of the Republic, whatever the nationality of their parents, except for the children of foreign ministers and members of the official residence in the Republic”. 30 For a detailed description of further injustices suffered by indigenous populations during the Conquest of the Desert, see the volume edited by Osvaldo Bayer (2010). 51

Similarly, the historian Luciana Sabina claims:

Avellaneda practically doubled the national territory and pacified the border through the reviled Conquest of the Desert, one of the most controversial episodes of our past. In relation to this episode, prevailing analyses do not help since they constitute true historiographic absurdities because they assess past actions with present eyes (2016, p. 374). Concerning the moral assessment of the Conquest of the Desert, at least two objections can be extracted from the previous lines. First, when both historians emphasize that as a consequence of the Conquest of the Desert, the size of the territory was doubled, they might be claiming that the amount of benefit received by past members of the Argentine state justify such campaigns. Second, it is asserted that we cannot judge what occurred in 1880 with the moral criteria we accept today. Based on this observation, one might assert that the military campaigns were not unjust since, at that time, people believed that what they were doing was not unjust.31

I will analyze these objections in turn. However, before proceeding, I want to limit their scope in one relevant sense. It is undoubtedly true that some 19th century voices were critical of the campaigns of the Conquest of the Desert. One interesting example was the opinion of Congressman Aristóbulo del Valle in 1884 in discussions of what was called “the Conquest of the Green Desert,” the campaigns which sought to expand Argentine frontiers into indigenous territory to the north of the country.32 Regarding the campaigns recently carried out to the south del Valle stated:

We have reproduced barbaric scenes — they have no other name — the barbaric scenes of which the world has been theatre while the civil commerce of slaves has existed. We have taken families from the wild Indians; we have

31 These versions of the objections to the unjust character of the Conquest of the Desert appear quite often in Argentine periodicals and newspapers with higher circulation. For instance, in an opinion column published in the newspaper Infobae referring to the actions carried out during the Conquest of the Desert, it was asserted “It is unfair, on the one hand, to assess people of another time with the criteria of 2017” Hangling, Rolando “Campaña del Desierto: una guerra no es un minué” Infobae, [April 16th 2017] https://www.infobae.com/opinion/2017/04/16/campana-del-desierto-una-guerra-no-es-un-minue/ Similar opinions were published by Romero, Luis “Como pensar, hoy, la Conquista del Desierto” La Nación, [April 1st 2018] https://www.lanacion.com.ar/opinion/como-pensar-hoy-la-conquista-del-desierto-nid2121231; Cresto, Juan “Roca y el mito de Genocidio” La Nación, [Nov 23rd 2004] https://www.lanacion.com.ar/opinion/roca-y-el-mito-del-genocidio-nid656498; “El Centenario de Roca, una conmemoración silenciada” Clarín, [October 19th 2014] https://www.clarin.com/politica/Julio_Argentino_Roca-Mario_O-Donnell- Juan_Jose_Sebreli_0_HJ0baYdcwmx.html 32 These campaigns ended in 1917, and the name “Green Desert” is owed to the fact that the land to be occupied was a series of wetlands and rainforests. During these campaigns, many indigenous people such as Wichis, Mocovíes, Tobas, and Pilagaes suffered grave injustices (Luna 1984, p. 25). 52

brought them to this center of civilization, where it is supposed that all the rights will find guarantees. For these families, we have not respected any of the rights that belong, not to civilized man, but human beings: we have enslaved men, we have prostituted women; we have stolen children from their mothers’ womb, we have taken older men to serve as slaves anywhere; in a word, we have ignored and violated all the laws that govern man’s moral actions.33

This opinion was not isolated. Criticism of acts performed during the military campaigns, such as killing of unarmed indigenous people, kidnapping, imprisonment, torture, and measures intended to prevent births, appeared in many newspapers at the time.34 Although I am unsure if the objectors listed above would agree on qualifying these acts as unjust, I proceed on the assumption that these specific acts were unjust, that those who carried them out should be blamed, and that we have duties to provide, at least, symbolic compensation to the individuals who suffered these acts.35 I do this because my main interest in this work is to analyze possible injustices concerning indigenous territory and their possible lasting effects in the present. As Margaret Moore asserts, “Territory is a political and geographic concept. It refers to the spatial area of jurisdictional authority” (2020, p. 2). In particular, I discuss the understanding of the above objections with respect to the transfer of territory previously occupied by indigenous people to past members of the Argentine state.

III. Beneficial Consequences Do Not Justify the Conquest of the Desert

The first objection to the unjust character of the Conquest of the Desert is as follows. The general assertion is that the benefits of the Conquest of the Desert were so significant that they prevent us from claiming that the transfer of lands to the past members of the Argentina were unjust. According to this objection, it is true that the Conquest of the Desert caused severe harm to many members of indigenous groups. However, given that these groups would have suffered those harms anyways, the benefits bestowed to Argentina could justify the Conquest of the Desert.

The idea according to which it is possible to justify harming third parties when they would have suffered the same harm if, in that way, someone else is benefited is not

33Cited by Lenton (2005, p. 95). 34 See Lenton (2005, p. 80), and Delrio, Lenton, Musante, Nagy, Papazian and Perez (2010, p. 140). 35 I accept Lukas Meyer’s view that “we stand under surviving duties towards dead people owing to the fact that they were victims of historical injustices” (2004a, pp. 178-179). 53 novel. For instance, in discussions of moral philosophy, it is sometimes asserted that if harming someone does not make the person affected worse off, significant benefits bestowed to others can justify the imposition of those harms. Fiona Woollard makes this point with the following example:

(Saving Sarah): Adam has no grudge against Victor. Barney is just about to shoot and kill Victor. Adam has no way of preventing this. Sarah is about to die. Adam can save her but doing so would have the side-effect that he kills Victor. Adam saves Sarah’s life and kills Victor (Woollard 2012, p. 685).

According to Woollard, Adam is allowed to save Sarah’s life even if, as a consequence of his action, Victor will die. In these cases, according to Woollard, the reasons against causing harm can be outweighed by the presence of other reasons such as, for example, those provided by the benefit received by Sarah (Woollard 2012, p. 685). There is a second version of the case. In this version, Victor’s death places him worse off than he would have been had the action not been performed. In this case, Woollard (2012) argues that saving Sarah, in a way whose consequence is that Victor is going to die, is impermissible (p. 686). This would be due to the fact that if Adam had acted otherwise, Victor would have been better off. Thus, it seems that although we always have reasons against causing harm to innocent parties, if the affected person would have suffered the same harm anyways, significant benefits bestowed to other persons may justify the imposition of harm.

I think that Saving Sarah sheds light on the discussion about the unjust character of the Conquest of the Desert. However, to support this argument, I must show that Saving Sarah is analogous to the Conquest of the Desert. The analogy can be elaborated as follows. First, in the original version of Saving Sarah, Adam harms Victor by killing him. This fact provides reasons for Adam not to kill him. In the case of the Conquest of the Desert, we have to show that indigenous people were harmed. Although I explained how this was so in Section I, it is worth recalling some injustices closely connected with the territory indigenous people possessed before the military campaigns were concluded. The Argentinian anthropologist Martinez-Sarasola summarizes those harms as follows:

Indigenous people lost not only their territory. They entered fully into the cultural disintegration caused by a set of factors, all of which were the consequence of the Conquest of the Desert: extermination; prison confinement in “colonies”; transfers to strange and distant places from their homelands; the forced adoption of new habits or ways of life; compulsive

suppression of traditional customs; the dismemberment of their families; and epidemics (1998, p. 148).

Since indigenous people were severely harmed during the Conquest of the Desert, it seems that, as in Saving Sarah, there were strong reasons for the past members of the Argentine state not to carry out the Conquest of the Desert.36

Second, in Saving Sarah, the benefits obtained by Sarah also provide strong reasons for saving her life even if, as a consequence, Victor is harmed. Similarly, it is uncontroversial that the Conquest of the Desert benefited past members of the Argentine state. It was only after those campaigns that Argentina had sufficient territory and resources to build academic institutes, federal courts, army garrisons, railways, the Mortgage Bank, the National Bank, etc. (Luna 1984, pp. 49-51; 2005, p. 121; Moroni 2007, p. 71).37 Further, between 1880 and 1930, the ability to export agricultural products grown on lands that had belonged to indigenous people contributed to an era of incredible economic expansion for Argentina (Di Tella and Zymelman 1961, p. 44), commonly known as its Belle Époque (Taylor 2002, pp. 907-908, Sanz Villaroya 2007, p. 118). In this period, Argentina had a remarkably high GDP per capita and an economic growth rate between 5% and 9% per annum (Cortés-Conde 1993, p. 49; 1997, p. 31; Sanz Villaroya 2007, pp. 120-121). Furthermore, this period coincided with a reduction in the illiteracy rate from 77.9 percent in 1869 to 35 percent in 1914 (Gallo 1993, p. 88). In the light of this, it seems that the land appropriated during the Conquest of the Desert made it possible for Argentina to increase the level of well-being of their (non-indigenous) citizens and to develop central institutions and infrastructure. Therefore, as Sarah’s benefits provide reasons for saving her even if Victor is harmed, we might claim that the benefits obtained by the past non-indigenous Argentine population provided reasons for the past members of the Argentine state to pursue the Conquest of the Desert even if indigenous people were harmed.

Third, in Saving Sarah, it is the fact that Victor is going to die anyway (because Barney will kill him if Adam does not) that allows the claim that Adam’s action of saving

36 Here I am assuming that indigenous populations were an innocent party in the same way as Victor is. I understand that this point is contested. I will discuss it below. However, notice that if the Conquest of the Desert can be justified because of the benefits it provides to the past members of the Argentine state in a situation in which indigenous populations were innocent parties, a fortiori, such benefits could justify those campaigns if the indigenous peoples were not innocent. 37As Halperin-Dongui reminds us, most of these things were present in Roca's program when he started his Presidency of Argentina in 1880 (1992, p. 141). 55

Sarah can be justified. For maintaining the analogy with the Conquest of the Desert, it must be shown that had Argentina not pursued these military campaigns, past indigenous people would have suffered the same or similar harm. This point is almost impossible to verify as it requires dwelling on counterfactual reasoning about how history could have developed. Despite this, it makes sense to scrutinize this possibility as if it were true. As many historians assert, it is highly likely that if Argentina had not pursued the military campaigns which took over the territory of Patagonia, Chile would have acquired the territory in a similar manner. This consideration is highlighted, for instance, by the Argentine historian Mario O'Donnell (2016):

What cannot be doubted is that had it not been for Roca’s decision, it is more than likely that Patagonia would not belong to Argentina today. Our neighbor Chile intended to make it their own, as shown in the maps of their schoolbooks, in which Patagonia is part of the original Chilean territory, an intention later lost by the supposed Argentine expansionism.

Roca himself recognized this Chilean territorial claim to Patagonia. In 1878, he asserted that “There is no Argentine who does not understand that we must take real and effective possession of Patagonia, starting with populating the river Negro because Chile’s claims attack us.”38 Thus, the fact that Chile would have pursued military campaigns to acquire territory of what today is Argentine Patagonia seems to have been a realistic possibility. It is also worth noting that, on the other side of the Andes, between 1861 and 1883, Chile also pursued military campaigns against indigenous populations. As a result of the Pacification of Araucanía, like in Argentina, indigenous lands were transferred to Chile. Further, Chilean law was forcibly imposed on the indigenous survivors (Marimán-Quemado 2006, pp. 119-125).

If we treat these facts as if they were true, then the case of the Conquest of the Desert seems similar to that of Saving Sarah. In the latter case, it is the fact that Victor would have suffered the same harm had Adam not killed him (because Barney would have done the same), in combination with the fact that Sarah was substantially benefited that justifies Adam’s action. Similarly, it is the fact that indigenous populations would have suffered a relevantly similar harm had Argentina not carried out these policies

38 Cited by Luna (1990, p. 70). Navarro-Floria (2002) also asserts that during the parliamentary discussion about Law 215 the issue of the potential occupation of Patagonia by Chile was highly present (p. 147). 56

(because Chile would have done the same) in combination with the fact that the Argentine population was greatly benefited that seems to justify the Conquest of the Desert.39

I find the previous argument as the most plausible for justifying the Conquest of the Desert because of its beneficial consequences for the past members of the Argentine state. However, it does not hold. There are, at least, two substantial differences between Saving Sarah and the Conquest of the Desert that should be considered. First, while in Saving Sarah Adam has no grudge against Victor, it is not clear that the non-indigenous Argentine population did not have strong negative feelings towards indigenous populations. Indeed, the opposite seems to be true. For instance, Juan Bautista Alberdi, who is considered the father of the Argentine Constitution, in his Bases of 1852, expressed:

Today, under independence [from Spain], Indians do not figure or make up the world in our political and civil society. (…) In America, all that is not European is barbarian: there is no more than this division: 1°, the Indians, that is, the savages; 2° the European, that is, us who have been born in America and speak Spanish, that believes in Christ and not in Pillán (God of the Indians) (2017, pp. 91-92).40

Alberdi’s opinion is not unique. If we examine the views of Argentina’s first four constitutional presidents: Mitre, Sarmiento, Avellaneda, and Roca, we find that, despite their many political and ideological differences, all felt that indigenous people should not be part of modern Argentina.41 For instance, in 1852, Bartolomé Mitre wrote:

The wild tribes are a great power with respect to us, an independent and ferocious republic within the republic. To end this scandal, civilization must conquer that territory: to carry out a campaign that results in the total annihilation of the savages. The correct argument of the sword has more force

39 In Saving Sarah whether Barney would also benefit by killing Victor does not play a role in the possible justification of Adam’s action of killing Victor. Barney’s action is relevant for showing that Victor is suffering a redundant harm (Gardner 2017, p. 8), that is a harm that he would have suffered anyway, not that harming Victor would also benefit him. For this reason, the argument in favor of the justification of the Argentine military campaigns does not require showing that past (non-indigenous) members of Chile would have also been benefited had Chile carried out similar policies. The only point that needs to be shown is that Chile’s military campaigns would have harmed indigenous peoples in a similar way so that they would have suffered redundant harm when Argentina perpetrated the Conquest of the Desert. Thank to Lukas Meyer for raising the objection. 40 Alberdi’s Bases y Puntos de Partida Para la Organización Política de la República Argentina is considered one of the most important sources of the Argentine National Constitution of 1853. 41 I refer to the first four presidents of the unified territory. Although the Argentine Constitution is from 1853, Buenos Aires was not part of the country until after the Battle of Pavón in 1861. Mitre was President in 1862-1868, Sarmiento between 1868-1874, Avellaneda between 1874-1880, and the first presidency of Roca was between 1880-1886. 57

against them, and this argument has to be used until they are exterminated or cornered in the desert. In this way, it will come the day in which an army of owners could settle on their land (Los Debates, [April 29th, 1852]).

In 1845 Domingo F. Sarmiento, his successor, published his famous Facundo o Civilizacion y Barbarie en las Pampas (Facundo or Civilization and Barbarism in the Pampas). In this book, Sarmiento attributed civility with European and North American culture, represented in Argentina by the old Unitarian Party; and barbarism with Latin American and even Hispanic values, represented by the old Argentine Federalist Party (1896a).42 While this book was not directly about indigenous issues, it was very influential in subsequent discussion about the matter. According to Argentine sociologist Maristella Svampa (2016), this image was the foundational interpretative paradigm regarding the indigenous issue in Argentina. It also led to the exclusion and the extermination of those considered barbarians (p. 42). Sarmiento strongly advocated conquering indigenous lands as it can be seen, for instance, in his 1844 comments, as noted Lastarria’s Investigaciones:

It might be unjust to exterminate the savages, suffocate nascent civilizations, and conquer peoples with privileged land. However, thanks to this injustice, America, instead of remaining abandoned to the savages, incapable of progress, is occupied today by the Caucasian race, the most perfect, the most intelligent, the most beautiful, and the most progressive of those who populate the Earth. (…) Thus, the world’s population is subject to revolutions that recognize immutable laws; the strong races exterminate the weak, the civilized peoples supplant the possession of the land to the savages (1885, p. 214).

Sarmiento’s successor was Nicolás Avellaneda. According to the Argentine historian Hilda Sábato (2016), the policies of Avellaneda concerning indigenous people are characterized by their forcefulness and regularity (p. 304). For example, in 1876, Avellaneda ordered the construction of what the Zanja de Alsina, a giant trench designed by the Ministry of War Adolfo Alsina to contain the indigenous population along the frontier. At that time, the idea was that given that many indigenous societies were

42 Sarmiento, unlike Alberdi, was in favor of ignoring all local ancestries (Gargarella, 2013, pp. 63-64). Interestingly, as Charles Hale asserts, “For Sarmiento in 1883, the great national evils had been the Spanish heritage and mestizaje, his remedies public education and immigration” (1986, p. 407). I think that Hale refers to some of Sarmiento’s expressions in his Conflicto y Armonias de las Razas de América (Conflict and Harmonies of the Races of America) in which Sarmiento praises the model of colonization of the United States that, unlike the Spanish form of colonization, did not encourage that non-indigenous populations mix with indigenous people (Sarmiento, 1900, pp. 231-232). 58 dependent on trade with the Argentine non-indigenous population, the existence of this trench would doom indigenous communities to starvation and they would be forced to surrender (Rock 2019, p. 175).

When Alsina died in 1877, and Roca replaced him as Ministry of War, Avellaneda asserted:

It is necessary […] to go directly, to look for the Indians in their lair, to subdue or expel them, to immediately oppose them, not a fosse opened in the ground by the hand of man, but the great and insurmountable barrier of the river Negro.43

A few months before becoming President of Argentina in 1880, Roca asserted: Not a single place is left in the desert in which Indians can now gather and threaten colonists on the Pampa. (…) All parts of the desert formerly dominated by Indians from the frontiers of Mendoza and Santa Fe to the Rio Negro and the Andes, even to Buenos Aires, can now be settled and may safely be used for industry. 44 I take the previous quotes of the first four presidents and two of the most influential 19th century Argentine thinkers as representative of the opinion that indigenous people had to be eliminated from Argentine territory. That Argentina had this intention seems independent of the fact that it is probable that in late 1870 Chile would have pursued a similar policy in what today is Argentine Patagonia. Hence, it seems that if the past members of Argentina would have performed the Conquest of the Desert, regardless of Chile’s intentions, then the fact that Chile would have also harmed indigenous populations had Argentina not harmed them is of no relevance. This is because past members of Argentina intended to appropriate indigenous lands regardless of Chile’s aspirations.45

The second relevant difference between Saving Sarah and the Conquest of the Desert arises as a response to the following objection to my previous argument. My argument can be objected to on the grounds that, in reality, Argentine elites did not have

43 Cited by Sábato (2016, p. 310). 44 Cited and translated by Hasbrouck, (1935, pp. 222-223). 45 Unlike Saving Sarah, the case of Conquest of the Desert seems more similar to the situation in which I kill my uncle by poisoning his tee because I want to inherit his lands, and it is discovered that my brother, who lives abroad, was also planning to kill him. Had I not poisoned my uncle’s tee, my brother would have done the same next month. In cases like this, my poisoning my uncle’s tee is wrongful whether or not my brother would have intended to do the same. This is because I had the intention to kill him regardless of my brother’s possible actions. 59 a direct intention to eliminate indigenous people but only to civilize and populate the desert. On this basis, it can be claimed that, like Victor’s harm in Saving Sarah, the harm suffered by indigenous people was only a side-effect of the Conquest of the Desert. Therefore, if it is justified to save Sarah even if, as a side-effect, Victor dies, it can also be justified to improve Argentine society’s level of well-being even if, as a side-effect, indigenous people are harmed.

The best expression in support of the characterization of the harm suffered by indigenous people as a mere side-effect of the Conquest of the Desert is the closing sentence of president Avellaneda’s 1875 speech to the Senate presenting the plan for occupying Patagonia. He asserted, “In one word, Honorable Senate, the plan of the executive office is against the desert to populate it, and not against the Indians to destroy them.”46 At least for the sake of argument, let us accept that the aim or end goal of the past members of the Argentine state was to populate the desert. Even if we accept this, there is a crucial difference between how indigenous people were harmed during the Conquest of the Desert and how Victor is harmed in Saving Sarah.

There is a long-standing view that can help in explaining the distinction between the two cases: the doctrine of double effect. As Philippa Foot explains, this doctrine “is based on a distinction between what a man foresees as a result of his voluntary action and what, in the strict sense, he intends. He intends in the strictest sense both those things that he aims at as ends and those that he aims at as means to his ends” (1967, p. 1). According to this doctrine, sometimes it may be permissible to behave in specific ways despite the foreseeable side-effect that someone is harmed. However, it is not permissible to behave with the direct intention of harming someone neither as an end nor as a means to achieve a certain aim.

Although I did not spell out too many details of Saving Sarah, in following Woollard, I stipulated that Victor’s death be viewed a side-effect of Adam’s action of saving Sarah. I think this is one of the features that makes it plausible to claim that Adam’s action can be justified. The problem is that it is doubtful that the harm suffered by indigenous populations was a mere side-effect of the Conquest of the Desert. The reason for having this doubt is that the period coincides with the popularity of evolutionary and

46 Cited by Levaggi (1996, p. 237), also by Navarro-Floria (2001, p. 368). 60 racist systems of thought in Argentina.47 As an example of this, we can take Sarmiento’s 1870 opinion on territorial expansion, one of the many occasions in which referred to the possibility of populating the desert:

The occupation of such a vast country presents many difficulties, but [no difficulty] is comparable to the advantages of the extinction of savage tribes or keeping them so weakened that they cease to be a social danger (1900b, p. 329).48 Avellaneda also seems to view the harm suffered by indigenous peoples as a means to the end of populating Patagonia when, in his last annual address before Parliament in 1880, he also argued in favor of the continuation of the Conquest of the Desert:

A new expedition is prepared, provided with greater means of mobility and action; –and Colonel Villegas will soon send us his report dated from the Limay [river], announcing that the tribes are scattered, that the internal borders have disappeared– and the main event of recent times, the suppression or subjugation of the Indian of the Pampas and Patagonia, is completed.49

After considering the previous opinions of the most influential persons of that time, even if we accept that the main aim or end of the Conquest of the Desert was to populate Patagonia, it seems clear that for that purpose to be carried out, the Argentine government wanted to eradicate the indigenous populations of the south. Therefore, given that the Argentine government advocated the elimination of indigenous peoples as a means to the end of populating the desert, it follows that the execution of the Conquest of the Desert cannot be justified, at least not in the same way as Adam’s action of saving Sarah.50

47 See Hale (1986, pp. 396-409). 48 There are even more explicit passages of Sarmiento’s opinion: “Will we succeed in exterminating the Indians? I feel invincible disgust for the savages of America, without being able to remedy it. That scoundrel is nothing more than filthy Indians whom I would send to hang now if they reappeared. Lautaro and Cuapolicán are lousy Indians because that is the way they are all. [They are] incapable of progress. Their extermination is providential and useful, sublime, and great. They should be exterminated without even forgive the young, who already have the instinctive hatred of civilized man (El Progreso, 27/9/1844, and in El Nacional, 19/5/1857, 25/11/1878 y 8/2/1879)" Cited by O'Donnell (2014, Ch. VII). 49 See Mabragaña (1910, p. 530). 50 There is a second way by which the unjust character of the Conquest of the Desert is denied because of its beneficial consequences. According to this version of the objection, after the military campaigns, indigenous people increased, in one way or another, their level of well-being. The idea upon which the Conquest of the Desert provided benefits for indigenous people is grounded on two historical facts: First, before 1879, indigenous people were impoverished populations (Luna 1984, p. 36). Second, all the benefits Argentina experienced after the Conquest of the Desert in terms of GDP, public institutions, peace, and security, were also in some sense advantageous for indigenous populations (Moroni 2007, p. 74). If we 61

IV. Judging the Past with the Eyes of the Present

The second objection to the unjust character of the Conquest of the Desert does not appeal to how beneficial it was for past members of the Argentine state. Instead, it is asserted that we cannot judge what occurred in 1880 with the moral criteria we accept today. In particular, it is claimed that those campaigns were not unjust since, at that time, people believed that what they were doing was not unjust or wrongful. The fact that in the present, we judge similar acts as wrongful is irrelevant for our assessment of the past. This version of the objection is based on what can be called temporal relativism. Michael Walzer seems to make a similar point when he claims that “it makes no moral sense to wag our finger at medieval Christians, insisting that they should have had our understanding of life and death” [emphasis in the original] (1994, p. 29). The point is that if there is any possibility of criticizing past behaviors, we should do that by using those principles accepted or, at least, easily available in the specific space and time in which those acts were carried out.

In the introduction of this work, I provided some arguments against moral relativism (Section V). However, it makes sense to scrutinize the temporal version of the relativist objection since it could show us something important concerning how to respond to historical injustices. For the objection to succeed in the case of the Conquest of the Desert it has to be shown that at the time social morality did not condemn the acts carried out during these military campaigns. I think that this point must be acknowledged. At least, this seems to be the case if we assume that all the opinions provided above by some of the most influential people who participated in public life when the Conquest of

combine these two facts, we might argue that the Conquest of the Desert actually benefited indigenous persons. I would not take this objection under serious consideration were it not that occasionally, the opinion is raised in public discourse or expressed by high-ranking Argentine politicians. For instance, in 2016, in an open conference in the province of Rio Negro celebrating the inauguration of new university buildings, the former federal Ministry of Education asserted: “Recently we celebrated 200 years of our independence, and we proposed with the president that there can be no independence without education. Moreover, trying to think about the future, this [project of investing in education] is the new Conquest of the Desert, not with the sword but with education” (Esteban Bulrich: “Esta es la Nueva Campaña del Desierto, pero no con la Espada sino con la education” La Nación, [Sept 16th, 2016] https://www.lanacion.com.ar/politica/esteban-bullrich-esta-es-la-nueva-campana-del-desierto-pero-no- con-la-espada-sino-con-la-educacion-nid1938454). Here, when the Minister uses the phrase “not with the sword”, he seems to recognize that some injustices were performed during the Conquest of the Desert but concurrently exalts its beneficial character. Since he proposes to repeat it with other means, it seems to me that he assumes that the beneficial effects the Conquest of the Desert had on those who were affected by it justified those campaigns. However, suppose the facts referred to above are true. In that case, even if it could be the case that some indigenous individuals were benefited, as I explain below and in Chapter 2 this was not generally the case. On the contrary, the opposite seems to be true. Furthermore, as I argue in length in the next chapters, it is not true that the Conquest of the Desert benefited indigenous peoples as groups. 62 the Desert was carried out represented the socially accepted morality at that time. However, while it must be true that social morality at the time did not condemn the Conquest of the Desert for this objection to succeed, this fact alone is insufficient. From the fact that a particular society at different times has different moral codes, it does not follow that all of them are equally valid.

As I explained in the introductory chapter, today is common to distinguish between social and critical morality. The former is the morality accepted in a given group, while the latter refers to general principles used to assess and criticize acts or social institutions, including social morality. Since judgments about the past are placed at the level of critical morality, and critical morality operates at a different level than social morality, from the fact that past social morality differs from present standards of morality it cannot be inferred that, from the perspective of critical morality, we cannot make judgments about the past. Thus, from the fact that at least a significant segment of Argentine society believed that it was not wrong to proceed with the Conquest of the Desert, it cannot be inferred that it was not wrong.

However, for claiming that some past act or policy was wrong or unjust, a further distinction is needed. We should distinguish between judgments about the wrongness or injustice of acts, policies, or events, and judgments about moral responsibility or blameworthiness of those who performed them. Derek Bell asserts that “the informational basis for judgments about right and wrong is ‘time-neutral’ or ‘timeless’ because there are no limits on when we acquire the information on which we make judgments about the past” (2011, p. 402). Instead, judgments about moral responsibility or blameworthiness “should be based on the information that the agent could have been expected to have at the time of her acts” (Bell 2011, p. 402). For this reason, says Bell, “the informational basis for judgments about moral responsibility is ‘time relative’ or ‘time-bound’” (2011, p. 402).51

If we accept this distinction, it is easier to respond to the second objection to the unjust character of the Conquest of the Desert. It is simply not true that we cannot judge the facts of 1880 with the moral criteria we accept today. The informational basis for judgments about justice and injustice, right and wrong, is, as Bell claims, time-neutral.

51 Bell takes this distinction from Mathias Risse (2008, p. 33). Other authors such as Derek Parfit (2011a) place a similar distinction between different senses of wrong (pp. 150-159). 63

Therefore, there is no objection to claiming that the Conquest of the Desert was unjust; it is a historical injustice.

V. Responsibility for Historical Injustices

However, the fact that Argentine society at that time had certain moral beliefs should be taken seriously when we evaluate past actions or policies. This is because judgments about moral responsibility are time-relative. Therefore, it might be possible to reformulate the second objection to the unjust character of the Conquest of the Desert as follows. The objection is not that we cannot judge the injustice of the events of 1880 with moral criteria that we hold today, but only that those who carried the acts out cannot be blamed or held responsible for them. It is entirely plausible to claim that given the facts of a certain situation some acts are wrong or unjust, although the person who carried them out is not blameworthy for having performed them. One situation of this sort might be when a specific valid criterion of critical morality was unknown at a particular time. When this is the case, that is when we judge actions or policies according to a valid standard of morality unknown in the past, it is reasonable to accept that those who carried out those acts should not be held responsible for them. Otherwise, as Joseph Carens expresses, we run the risk of violating the maxim ought implies can since we would be “criticiz[ing] people for failing to meet moral standards that were entirely unknown and unarticulated in their own time” (Carens 2006, p. 36). If this person’s moral mistake was based on a certain kind of invincible error, it seems plausible to assert that this person is not blameworthy. Therefore, if, at the time of the Conquest of the Desert, people could not know the moral standards according to which we now judge those military campaigns, it might be correct not to hold them blameworthy for their actions.

In response to this objection, I will show that there are plausible moral standards available to those who perpetrated the Conquest of the Desert, according to which we can assess such a policy as unjust. If we assess those acts according to moral standards available at that time and we discover that those acts are unjust according to those standards, those who designed and performed the Conquest of the Desert cannot be exempted from moral responsibility on the basis that they are being judged for failing to comply with moral standards unavailable at their time.

At the end of the 19th century, the ideas of some members of the School of Salamanca, an intellectual movement of Spanish and Portuguese theologians in the

64 sixteenth- and seventeenth-century, such as Vitoria, Suarez, de las Casas, and even Grotius, were widely known in Argentina.52 Further, many of their ideas grounded the intellectual basis upon which the process of independence from Spain was conducted.53 However, mainly because of the influence of the 1837 Generation, it should be noted that adherence to these ideas declined and were sometimes explicitly rejected.54 However, the objection I consider here is that no one can be blamed according to moral standards that were entirely unavailable when they lived. Thus, the fact that sometimes these people rejected those ideas confirms, rather than weakens, the point that those moral criteria were available at that time.

Let us take as an example Francisco de Vitoria. In his De Indis, he asserted that it could be held that indigenous people were not owners of their lands before the arrival of the Spaniards because they are sinners, unbelievers, irrational, or madmen (Vitoria 1991, p. 240). The relevance of holding indigenous people as owners is that in doing so they cannot be disposed of land without just cause. Given the Argentinian public discourse in terms of civilization and barbarism, it seems warranted to examine the possibility that indigenous people were not actual owners of their lands because they were considered irrational or madmen.55 The argument for the possibility that irrational or madmen do not have ownership is grounded on the fact that, for Vitoria, like wild animals, irrational or

52 A review of how some of the ideas of these thinkers were present in the curriculum of the University of Cordoba – one of the two Argentine universities along with Buenos Aires at the time – can be seen in Llamosas (2018). The reception of the Spanish natural law doctrine in Buenos Aires is reviewed in Chiaramonte (2002, pp. 111-113). Chiaramonte (2004) explains that such ideas continued to play an important role in the political organization of Argentina during the 19th century. Tau-Anzoátegui (1977) shows that these ideas prevailed at least with some prominent sectors of the society until the end of the 19th century, even after positivism became the prevailing political thought in Argentina (pp. 2-122). 53 For an overview of the influence of Vitoria, Suarez, and other scholars of the School of Salamanca during the process of Argentine independence, see Halperin Dongui (2009). However, it should be noted that other schools of thought also influenced the Argentine independence process. For example, the ideas of Rousseau, Voltaire, and Montesquieu were also influential. For instance, as Nino (1992) notes, the idea of free trade along with those of freedom and political democracy influenced greatly some participants of the independence process, such as Mariano Moreno, Manuel Belgrano, Juan Jose Paso, Juan Jose Castelli, and Bernardo de Monteagudo (pp. 114-115). 54 See Botana (1997). 55 Even according to the social morality accepted at that time, it is hard to argue that unbelievers or sinners should not own property. In any case, for Vitoria the reason that neither sinners nor unbelievers can lose their dominium is clear. Property and ownership are matters of civil right and mortal sin in general, or in particular being an unbeliever, is not an impediment to a civil right. Therefore it follows that neither mortal sin nor being an unbeliever can be good reasons for asserting that someone does not have true dominion over something. As expressed by Vitoria, “The conclusion of all this is that the barbarians are not impeded from being true masters, publicly and privately, either by moral sin in general or by the particular sin of unbelief” (Vitoria 1991, p. 246). 65 madmen cannot have legal rights. Given that dominium is a legal right, it follows that irrational or madmen cannot have dominium (Vitoria 1991, p. 247).56

The idea that indigenous populations of southern Argentina were irrational because they did not respond to reason was often present in public discourse. For instance, on one occasion, Sarmiento did not hesitate in comparing indigenous people to apes: “The Indian Manuel Grande built on the Martín García Island, where the government sent him as a prisoner, a corral of branches a yard high, and there he lived for four months with eight young boys from his tribe. The gorilla does the same” (1899, p. 116).

However, even if Argentine elites sometimes characterized indigenous people in such fashion, the argument does not hold. These elites also recognized that indigenous populations had different forms of political and social organization. Sarmiento acknowledged this point in a limited way. In referring to Mapuce communities, he asserted: “The Indians of the Pampa have no peace organization of any kind” (1900a, p. 64). However, in the following sentence, albeit with a pejorative tone, he seems to contradict his previous idea by describing these indigenous people’s political organization. “There is a hereditary general chief, whom everyone obeys, as it is to be supposed, in the great retreats of their raids.” Furthermore, Sarmiento also distinguishes the previous kind of raids from what he calls private ones. “In the case of the private Indian raids, there is a hard-working captain, that is, a fearless and fortunate cow thief, who is followed by a batch of volunteers who recognize his authority, and with whom he shares his loot” (Sarmiento 1900a, p. 64). But perhaps the most straightforward recognition of indigenous political organization was expressed by Mitre when he asserted, “The wild tribes are a great power with respect to us, an independent and ferocious republic within the republic” (Los Debates, [April 29th, 1852]).

The point that elites recognized several forms of political organization among indigenous people can be furthered strengthened by reading the opinions of others who were in favor of the Conquest of the Desert. In 1878 Estanislao Zeballos wrote La Conquista de las Quince Mil Leguas: Ensayo para la ocupación definitiva de la Patagonia (The Conquest of the fifteen thousand leagues: Essay for the definitive occupation of Patagonia). This book was conceived as a propaganda document outlining

56 Just to be clear, for Vitoria, indigenous people were not irrational or madmen, and therefore, for him, they had true dominium (public and private) of their lands (Padgen 2003, p. 111). The point I am want to analyze here is whether or not Argentinian elites considered indigenous people as irrational or madmen. 66 the benefits of a possible campaign to the desert against indigenous people (Pérez 2008, p. 7). Zeballos, in one of his descriptions of different indigenous peoples of Patagonia, endorsing the observations of the traveler Munsters, asserted:

The Indians call “Gobierno de las Manzanas [Government of the Apples]” to the domains of the famous chief Shayhueque. (…) Indeed, there is no more powerful chief in Patagonia since the five nations that populate those regions recognize him as such: Manzaneros, Picunches, Mapuches, Hulliches, and Tehuelches. These [nations] are under the command of more than 80 [lower rank] chiefs. (…) Comparing the degree of civilization of the Araucanians or Aucas [Mapuce], the Manzanas, and the Tehuelches, Munsters gives the first rank to the Manzaneros. They work the land by planting cereals and dedicate themselves to the cultivation of apples. (…) The Tehuelches visit Carmen de Patagones once a year, usually in July, and stay there for as long as they need to make their provisions and sell ostrich feathers. They are merchants in good faith, which speaks in favor of considering they are peaceful and honest in nature (2008, pp. 270-274).57

Since those who planned and carried out the Conquest of the Desert believed that indigenous populations had different forms of political organization, they could not consistenly assert that indigenous people were irrational or madmen, at least not in the sense that they could not have had those kinds of organizations that these very same people recognized indigenous people had. Therefore, on this view, it cannot be denied that indigenous populations had true dominium over their territory. In Vitoria's view, “[the fact that indigenous people are rational] is self-evident, because they have some order (ordo) in their affairs: they have adequately organized cities, proper marriages, magistrates and overlords (Domini) laws, industries, and commerce, all of which require the use of reason” (1991, p. 250). These forms of organization were present, for instance, in different Mapuce communities.58

It might be objected that even if indigenous people owned their territory, it was still just to pursue the Conquest of the Desert. This is because there was some just cause

57 It is worth noting that Julio Roca, acting as Ministry of War, asserted in the prologue of that opus: “The reading of your book will destroy every doubt about the relevance and the possibility of expanding the frontier to the river Negro.” Furthermore, Avellaneda during his presidency ordered the National Treasury to pay for 500 hundred copies because “it is evident the relevance of the Dr. Estanislao S. Zeballos’ book on the occupation of the river Negro, and it is convenient to publish it at this moment in which the government is planning to move the frontiers forward [into the desert]” (These quotes belong to pp 7-8 of the second edition of Zeballos’ book). 58 I will say more about this in Chapter 3. 67 why those lands should have passed to Argentina. Before suggesting possible just causes of transfers, let me briefly summarize Argentina’s situation in the middle of the 19th century. In 1816 what is now Argentina declared its independence from Spain. However, at that time, the declaration of independence was performed in the name of what was called Provincias Unidas del Rio de la Plata (United Provinces of the River Plate). The name was not coincidental given that, at the time, each province consider itself an autonomous entity. Indeed, following the Battle of Cepeda in 1820, there was no central authority in Argentina, and each province considered itself a sovereign state. This situation continued until 1852, when a group of provinces, united under the name of the Confederation of Argentina, won the Battle of Caseros against the province of Buenos Aires. After Caseros, both the Confederation and Buenos Aires signed the San Nicolás Accord to create a central authority. However, Buenos Aires rejected the Accord based on the following argument advocated by Bartolomé Mitre:

Authorities are founded on two principles or, rather, on two laws: either on natural law or written law. The authority created by the Accord of San Nicolás is not founded on the natural law, for it is a despotic authority, without rules, without lawfulness, without limits or balances. It is an authority greater than the people and stronger than freedom. It goes against nature itself.59

With these lines, clearly influenced by the doctrine of natural law, Buenos Aires justified its secession from the rest of the provinces of Argentina. This separation ended after the Battle of Pavón in 1861 when Buenos Aires (and the other provinces) consented to be part of the same unified authority (Lynch 1993, pp. 39-40).

The relevance of this story is that, for Argentine society at the time, no territory could be under the jurisdiction of a central authority without consent. Hence, we might think that if indigenous populations have consented that their territory pass to Argentina, such a transfer would be justified. From time to time, it is argued that this was the case regarding friendly Indians, a label applied to those populations more willing to incorporate Christian and civilized values. Concerning these indigenous peoples, it is sometimes asserted in public debate that no injustice was committed against them given that they submitted voluntarily to the authorities of Argentina. This claim is grounded on the fact that most prominently between 1850 and 1880, many indigenous communities negotiated their incorporation into Argentina as friendly Indians, and subsequently

59 Cited by Chiaramonte (2004, p. 584). 68 defended the new Argentine borders against foreigners and other indigenous peoples (De Jong 2015, p. 88). Although the conditions vary from case to case, in general, those who were considered friendly Indians subordinated themselves to the military authorities and enrolled in the Argentine army or in the army of the different provinces in exchange for salaries and provisions (De Jong 2015, p. 91). It was common for indigenous peoples to leave the territory they previously occupied and start living in other areas allocated by the state, usually near the frontiers (Levaggi 1995a; De Jong 2015, p. 97). Thus, one might argue that no injustice was committed when Argentina appropriated the territory previously occupied by them because, at least for the friendly indigenous communities, the transfer of territory was voluntary.

For assessing this possible just cause of transfer, we may turn to Vitoria’s views given that his writings were available in 19th century Argentina. Vitoria asserts that for a transfer of something to be legitimate, the choice has to be genuinely voluntary, and the choice has to be made with full knowledge of the benefits to be received (Hamilton 1963, p. 131). If the decision is made in ignorance or fear, volition is compromised, and, hence, some requisites for a choice to be legitimate are lacking (Vitoria 1991, pp. 275-276).

It might be true in some specific cases that indigenous populations voluntarily submitted to Argentine authorities and transferred their lands to the state. Perhaps, the examples of the chiefs Catriel and Coliqueo as often cited are cases of indigenous communities who voluntarily submitted to the government of Argentina.60 However, it would be difficult to generalize this for the majority of indigenous communities. Many if not most of the indigenous populations considered friendly were incorporated into the state by force, as the cases of the chiefs Painequeo, Ulluán, Huenchual, and D. Rosas show (Copello 1944, p. 86), and the remaining friendly indigenous people who, for one reason or another, did not reach an agreement with Argentina were either evicted or forced to abandon their lands, as the cases of chiefs Cañuquil, Quentriel, Grande, Tripalao, Raninqueo, and Guayquil demonstrate (De Jong 2015, p. 95).

Given these facts, rather than voluntary transfers of territory, it seems that most of the submissions of indigenous communities to Argentina, transfer of their lands and their corresponding moves to the frontiers were not expressions of genuinely free choice.

60 For a description of how these tribes were incorporated into Argentina see De Jong (2015, pp. 96-102, 106-110); Quijada, (2002, pp. 130-131); Nagy (2014a). 69

Instead, they seem to be strategic moves made for the sake of their survival and not worsening their conditions of life. Even those who sometimes presented themselves as advocates of peaceful treatment of the Indians, such as Avellaneda, asserted that civilization has to be imposed on indigenous populations “by rigor or temperance.”61 Or consider one of the friendliest passages of Zeballos’ book about the possibility of conquering the desert: The Republic’s constitution imposes on the government the duty to promote the peaceful treatment of the Indians and their conversion to Catholicism. Moreover, there will be no more auspicious occasion than this for the organization of missionary corps to cooperate in the regeneration of those (Indians) under the protection of the bayonets of the nation [emphasis added] (2008, p. 280).

This is to say that indigenous people had to accept the conditions of Argentina peacefully, or the conditions would be imposed on them by force.62 In light of these considerations, but for an extremely limited number of cases I see no reason why we should consider that the transfer of territory from friendly indigenous people to Argentina was voluntary.

Another regrettable chapter of Argentine history that has relevance for the discussion of the unjust character of the Conquest of the Desert is the War of the Triple Alliance (1864-1870), fought between Argentina, Brazil, and Uruguay, on the one side, and Paraguay, on the other. While I cannot summarize the history of this war here, for the purposes of this chapter it is relevant to know some facts regarding Argentina’s involvement in the hostilities. Paraguay asked for authorization from the Argentine government to pass through the Argentine province of Corrientes to reach Uruguay. President Mitre denied permission. Consequently, in 1865, Paraguay declared war on Argentina. After the declaration, Argentina, Brazil, and Uruguay signed the treaty of the triple alliance, with the intention of defeating the government of Paraguay. According to these three countries, Paraguay was unjustly interfering and harming them severely. After

61 Cited by Levaggi (1996, p. 237). 62 Even for some of the more severe critics of the Conquest of the Desert, such as Aristóbulo del Valle, the fact that civilization has to be imposed was not contested. In another part of the same speech he asserted: “It cannot be denied, and no one denies in our time, the right with which civilization evicts barbarism and submits it to its government. A reason for universal convenience, which is also incorporated into a universal law, justifies peoples’ action and large groups of civilized men, to dominate the territories that exist in the hands of the savages” (Cited by Lenton 2005, p. 75). 70 five years of war, Paraguay was defeated. Subsequently, in addition to an enormous number of deaths, much of Paraguayan territory passed either to Argentina or Brazil.63

The War of Triple Alliance is relevant because it bears similarities with the manner in which Argentina treated enemy Indians. This name was reserved for those characterized by a nomadic cultural tradition and displaying hostility towards non- indigenous population on the borders (Navarro-Floria 2001, pp. 355-356).64 Among the groups so classified were the Mapuce tribes of Calfucurá and those of his son, Namuncurá. In early 1870, Calfucurá was already known as a severe obstacle to Argentine progress. Whenever the Argentine army tried to enter Calfucurá’s territory to expand the agricultural frontier, they were forced to retreat after suffering many deaths. After the Congress of Argentina enacted Law Nº 215 in 1867, which delineated that the country’s frontiers should advance until the rivers Negro and Neuquén, Calfucurá and his son Namuncurá began a series of violent raids intended to prevent Argentine authorities from entering their territories. These raids caused many losses and the deaths of non- indigenous Argentine people (Cayuqueo 2019, pp. 127-130). In 1872 at the battle of San Carlos, Calfucurá was defeated by the Argentine army with the help of the friendly indigenous tribes of Catriel and Coliqueo, and the raids declined (Cayuqueo 2019, pp. 134-135).65 However, this did not stop the characterization of those indigenous people not already subdued by Argentine authorities as dangerous enemies. In his La Conquista de Quince Mil Leguas, Zeballos wrote about the indigenous population commanded by Namuncurá (Calfucurá’s successor):

These Indians live off robbery and wage war on Christians with unrelenting cruelty and hatred as if they were satisfied with an act of horrible revenge sworn by their parents to the injustice with which they were treated. Their invasion of our lands leaves traces stained with blood and marked by fire and

63 See Lynch (1993, pp. 45-46). For a good description of the most important events of the Triple Alliance War, see Sabato (2016, Ch. 5). According to her, more than 300,000 people died as a consequence of the war. Other scholars, such as Pigna (2005), assert that the population of Paraguay was reduced from 500,000 inhabitants to 116,351, and 50,000 Argentines died in the conflict (pp. 259-260). 64 Although the distinction between friendly and enemy indigenous peoples dates back to colonial era, the interpretation of “friend”, and “enemy” varied over time. In the colonial era, the Kingdom of Spain considered the lands of the current territory of the Argentine Pampas and Patagonia beyond their effective borders (Weber 1998, p. 148). The indigenous people living in these lands were known as savages, barbarians, non-subdued, or enemy Indians. In comparison, those within the borders that recognized Spain’s authority were considered Christianized, subdued, friends, or domestic Indians (Weber 1998, p. 149). 65 After San Carlos and the defeat of Calfucurá, there was a big indigenous parliament in 1873 for choosing the successor of Calfucurá. According to Zeballos, 224 indigenous chiefs attended the congress and elected Calfucurá’s son, Manuel Namuncurá, as his successor and leader (Zeballos 1961, pp. 145-146). 71

looting, and in their very awnings, they make the unfortunate prisoners and captives suffer horrible and indescribable torture (2008, p. 249).66

If the previous expressions are accepted, it might be argued that the Conquest of the Desert and, therefore, the appropriation of indigenous territory, at least concerning these enemy tribes, was justified. This would be because indigenous populations caused unjust harm to the non-indigenous population of Argentina. If unjust harm over a different community might constitute a cause of just war, it seems plausible to argue that, because of the war, taking possession of the territory of the offender is justified. After all, a somehow similar view was held a few years prior with respect to the conflict with Paraguay.

For assessing the previous argument, we can turn again to Vitoria’s writings. In his De Indis Relectio Posterior, Vitoria clarifies that “the sole and only just cause of waging war is when harm has been inflicted” (1991, p. 303).67 However, he states that given that all effects of war are cruel, not any harm but only serious harms give sufficient reasons for justifying war (Vitoria 1991, p. 304). Suppose those indigenous populations considered enemies caused serious harm to non-indigenous Argentine people and the interests of Argentina. In this case, it might be that Argentine elites believed that there was a just cause for waging war against these indigenous populations.68 In this sense, in parliamentary discussion in 1878 concerning Law Nº 947, the formal starting point of the most important stage of the Conquest of the Desert, the Argentine Finance Minister asserted:

The Chamber knows well the purposes of this bill: to acquire valuable territories; to end the war with the Indians; to avoid the depredations that the savages have been performing for so many years on our main properties; to guarantee, in a word, rural property, which constitutes our primary source of wealth.69

However, even if we accept these opinions, that the transfer of lands from enemy indigenous people to the Argentine state was justified, it is not enough to claim that

66 The presence of indigenous people raids (Malón) as well as their consequences were popularized in Argentine culture mainly as a consequence of two poems: La Cautiva (1837) written by Esteban Echeverria, another member of the 1837 generation, and Martín Fierro (1872 and 1879) written by José Hernandez. 67 As Berenice Hamilton notes, for Vitoria, “Not even the refusal to accept Christianity when properly demonstrated would justify making war” (1963, p. 124). This Second Relectio is considered a continuation of De Indis. 68 This idea gains plausibility if we recall some of the opinions of Argentine elites provided above. 69 Cited by Navarro-Floria (2001, p. 374). 72 indigenous populations caused severe harms that constitute just cause for war. It must also be argued that in just wars it is lawful to seize certain goods of the enemy. Vitoria seems to endorse this view. First, according to him, all losses unjustly caused by the enemy should be compensated, and, in seeking compensation, it might be lawful to take some goods from them (1991, p. 304). Second, in Vitoria’s view in just war everything is allowed “which is necessary to secure peace and security from attack” (1991, p. 304). This is because the purpose of war is peace, and those who wage just war can do all things necessary for the sake of peace and security (Vitoria 1991, p. 304). Indeed, history shows that many lands previously occupied by indigenous populations passed to Argentina. Part of the justification for this policy rested on the fact that in this way peace and security would be achieved, and that the country would no longer suffer severe harms and losses as a consequence of indigenous attacks. As Congressman Madariaga expressed in the parliamentary debate of 1867 in advocating Law Nº 215: “Once the border is secured, there will be inalterable peace in the Argentine family, wealth and power beyond our wishes.”70

However, there is a problem with this argument for justifying the Conquest of the Desert. It was not true that the Argentine Republic was an innocent party, in the sense of having suffered unjust harm due to the indigenous populations raids. First, as noted above, in the 19th century, past members of the Argentine state were continually trying to appropriate lands previously occupied by indigenous populations through use of force and military expeditions.71 The intention of Argentina or the government of the different provinces in acquiring lands formerly occupied by indigenous people was constant and ongoing since independence.72

Second, Argentine non-indigenous society contributed and encouraged indigenous people to the raids considered by Argentine elites as just causes of war. As

70 Cited by Navarro-Floria (2002, p. 153). Zeballos also highlighted this point as one of the conclusions of his apologist book of the Conquest of the Desert “Consequently, in addition to conquering the desert, avoiding the crimes of the savage, economizing in public expenditures, not losing the 40,000 animals that the barbarians steal from us annually, we will build the foundations of the population of that territory by giving fertile and generously productive land to the Argentine people and the immigrant” (2008, p. 310). 71 See Levaggi (1995a), Navarro-Floria (2002), Quijada (2002). 72 Famously, Juan Manuel de Rosas, acting as a Governor of Buenos Aires, starts what is regarded as the first Campaign of the Desert between 1833 and 1834, which added thousands of square miles to the province of Buenos Aires (Levaggi,1995a; also Lynch 1993, p. 22). As the analysis of the parliamentary discussions performed by Navarro-Floria (2001; 2002) highlights, Argentina’s intention to advance to the south did not end there. Instead, the opposite was true. 73 expressed by the historian Hilda Sábato: “Argentinian society pressed to expand its power (its territory, its economy, its culture), while the indigenous nations resisted but also had to carry out advance operations on the towns and establishments closest to the limit, from where they took cattle and captives, key assets for their commercial and power relations” (2016, p. 304). Furthermore, it cannot be claimed that this sort of criticism was not known at that time. For instance, José M. Estrada was very harsh with respect to the Conquest of the Desert, asserting that there are three causes closely connected with non-indigenous Argentines that explain why indigenous populations attack them: (1) non-indigenous populations on the borders encourage indigenous people to take violent actions by extorting and deceiving them; (2) the presence of non-indigenous criminals in indigenous communities, who contributed to exacerbating indigenous peoples’ resentment against the Argentine Republic; and (3) the cynical attitude of political factions that used indigenous populations as shock troops in their conflicts with other factions (Estrada 1901, p. 104). If these considerations are accepted, past members of the Argentine state cannot be considered an innocent party that might find grounds for a just declaration of war against indigenous people. Hence, the transfer of indigenous territory to Argentina was not justified.

In this section, I showed that appropriation of indigenous lands by past members of the Argentine state during the Conquest of the Desert was unjust. I arrived at this conclusion by relying on moral criteria available when those campaigns were conducted. Therefore, it is not true that, at the time of the Conquest of the Desert, people could not know valid moral standards upon which the appropriation of indigenous territories was unjust. Hence, it cannot be asserted that those who perpetrated such injustices cannot be blamed because these moral criteria were entirely unavailable at that time. Therefore, it fails the objection according to which past members of the Argentine state cannot be blamed for conducting the Conquest of the Desert just because at that time, there were no available valid moral criteria with which those acts and policies can be assessed as unjust or wrong.

VI. From Moral to Remedial Responsibility

Against my argument, it can be objected that even if I succeeded in showing that there were valid moral criteria available at that time, much more is required for holding someone morally responsible. Vitoria’s views were indeed available in 19th century

Argentina. However, it is also true that those who carried out the Conquest of the Desert behaved according to their own moral beliefs. Indeed, sometimes they explicitly rejected ideas such as those of Vitoria. If moral responsibility depends on behaving according to one’s moral beliefs, the objection continues, these people cannot be held responsible for those acts.

I do not believe that this objection succeeds. Think about the stolen babies whose identities were changed during the last Argentine dictatorship (1976-1983). Many of those who carried out such atrocities might have been genuinely convinced that their actions were right or justifiable. Nevertheless, even in those cases, I would not claim that these people do not bear moral responsibility for their actions. The fact that someone believes that his act is right is not sufficient for making an act blameless, except in cases of invincible error. A moral error can be regarded as invincible when the valid moral criterion in question is unavailable from a “time-relative” perspective returning to Bell’s terminology. As argued above, however, in the case of the Conquest of the Desert, it cannot be asserted that from a time-relative point of view, there were no valid moral criteria for assessing the injustice of those campaigns.

Nevertheless, one might think that other conditions could make a moral error invincible and that some of those conditions apply in the case of the Conquest of the Desert. Although I do not believe that 19th century Argentine elites were guided by justifiable error when they executed these military campaigns, I end this chapter by assuming that this was the case.73 Still, even if those who carried out the Conquest of the Desert were justifiably in error, at minimum a limited form of responsibility can be ascribed to them.

First, even if past members of the Argentine state cannot be held morally responsible for their actions, they were, nevertheless, responsible for the outcome. Considering Tony Honore’s reflections on the matter,74 David Miller asserts that outcome responsibility occurs when “a particular agent can be credited or debited with a particular outcome — a gain or a loss, either to the agent herself or to other parties” (2007, p. 96).

73 One possible condition could be the over-demandingness possibly implicit in having to behave against socially accepted morality in a certain time and location. By considering this condition, one might argue that it would have been overdemanding for 19th century Argentine elites to act against the evolutionist and racist moral beliefs they had. I cannot accept this argument. 74 See Honoré (1999). 75

Although there is a causal component in this type of responsibility, what is relevant for claiming that a certain person can be debited or credited for a certain outcome is a foreseeable connection between the action and the consequence (Miller 2007, p. 88). This does not imply moral responsibility, of course, but only that the agent acted with genuine agency.75 Being outcome responsible for a certain state of affairs does not imply that someone committed injustices. However, it is one way of being relevantly connected with that state of affairs so that one can be remedially responsible for putting it right (Miller 2007, pp. 100-101).76

Given the description of the Conquest of the Desert and the thoughts of those who organized these military campaigns, even if we assert that they were not morally responsible, we should nevertheless accept that they were outcome responsible for most of the consequences of the military campaigns against indigenous people in the late 19th century. Thus, they should be held at least remedially responsible for the outcomes they brought about.

There is a further point that is also worth noting. Janna Thompson asserts that “a responsible moral agent is someone who is able and willing to take responsibility not just for present actions but also for the actions that belong to her history as an agent (2017, p. 51). As Bell asserts, even if moral agents intend to act rightly, they know that they are permanently fallible. This is because, in general, we act under conditions in which all morally relevant facts are unknown. We know, argues Bell (2011), that we can act wrongly despite all our best efforts (p. 403). If we learn that, in the past we acted wrongly, we usually regret what we have done. Moreover, if we sincerely regret what we have done in the past, then, at least two things seem appropriate. First, on Bell, “[we] should be willing to accept that [we] should not retain the benefits derived from [our] wrongful act. Instead, these benefits may be transferred to the victims of [our] wrongful acts to rectify (or partially rectify) the wrong that [we] ha[ve] done” (2011, p. 403). If Bell’s point is accepted, it follows that the lands previously occupied by indigenous people taken by the Argentine state should have been returned to them. There are reasons in favor of doing

75 As Miller asserts “There has to be some connection between my capacities and the result for outcome responsibility to obtain” (2007, p. 88). 76 Miller argues that “to be remedially responsible for a bad situation means to have an special obligation to put the bad situation right” (2001. P. 454). 76 this even if at the time the Conquest of the Desert was carried out, those who performed it believed that annexing those lands was not wrong.

Second, as Thompson claims, “Being someone who can exercise this responsibility [for our past actions] is crucial to maintaining proper relations with others” (2017, p. 51). In the case of the Conquest of the Desert, not only indigenous territorial rights among others were violated but also that the relationship between indigenous and non-indigenous people was undermined because of those campaigns. For Thompson:

Since good moral relationships between agents depend on a willingness to act justly and to acknowledge and repair injustices, agents who know that they can commit, or suffer injustice because of the time relative ignorance of them or others have reason to accept a moral requirement to make reparation to victims of an unjust act – a requirement that does not depend on whether they knew that they were acting unjustly (2017, p. 52).

For our case, this argument is relevant because once it is discovered that the Conquest of the Desert was unjust, it follows that not only is there a duty to give up the benefits from such a wrong, but also that such a wrong should be recognized in order for the relations between indigenous and non-indigenous people to be repaired. Therefore, even if it is accepted (something that I do not) that those who perpetrated the Conquest of the Desert were blameless from a time-relative perspective, given that those campaigns are unjust from a time-neutral perspective, once the injustice is recognized, not only the benefits obtained from the injustice should be transferred to the victims but also other forms of reparation should be provided.

Conclusion

In this chapter, I argued that the Conquest of the Desert in Argentina should be understood as a case of historical injustice. I argued that even what I consider the best argument for justifying those campaigns fails. Further, I argued for a specific way upon which we can make judgments about the past. From a perspective of critical morality, I asserted that there is no objection to claiming that some past event or policy was wrong or unjust, even if at that time, people generally believed that what they were doing was not wrong or unjust. However, I asserted that conditions are different when we speak about moral responsibility for past acts. I recognized that no one can be blamed for failing to comply with moral criteria unavailable when they live. However, with respect to the

Conquest of the Desert, I showed that there were valid moral criteria upon which its unjust character could be ascertained that were easily available at that time in which it was carried out. Thus, it cannot be asserted that those who perpetrated such an injustice cannot be blamed just because these moral criteria were entirely unavailable at that time. But even if my argument in this respect fails, I asserted that past members of the Argentine state were remedially responsible for the outcomes brought about in these military campaigns. Further, I also argued that once they discovered (if this was the case) that they had behaved wrongly, they should have returned, at least, the benefits obtained during the Conquest of the Desert to indigenous populations.

Nevertheless, (almost) nothing I said here, by itself, implies that past injustices have to be redressed in the present. From the fact that some injustice was committed many years ago, and even from the fact that our predecessors were responsible for perpetrating them, it does not follow that the present generation should respond to those historical injustices. In the following chapters, I will discuss on what grounds and under what circumstances the lasting consequences of past injustices should be redressed in the present.

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CHAPTER 2 FROM HISTORICAL INJUSTICES TO PRESENT RESPONSIBILITIES

Introduction

In the last chapter, I provided an approach on how to judge the past, and argued that the Conquest of the Desert constitutes a case of historical injustice. In the late 19th century, strong reasons would have spoken in favor of requiring those who perpetrated this injustice to repair it by returning appropriated territory to indigenous people, restoring their institutional system, and also by providing other forms of compensation. However, many years have passed since 1885, and circumstances have changed. If such changes are normatively relevant, perpetrators of the Conquest of the Desert might no longer have compensation or reparation duties to the victims of that injustice. In such a case, the injustice would have been superseded.

One possible normatively relevant change in circumstances relates to the parties involved in past injustices. For instance, Chandran Kukathas argues that “For the paying of reparations to be defensible, it must be possible to identify two kinds of agent: the victim of the injustice, to whom the reparation is owed, and the perpetrator or beneficiary of the injustice who can be held accountable for the wrong or liable for the cost of restitution” (2006, p. 330).77 To require the identification of perpetrators and victims is relevant because the commission of some injustice generates a correlativity between them. This correlativity requirement lies at the core of all viable accounts of compensatory or corrective justice. As Coleman asserts, “In every account of corrective [or compensatory] justice, there is presumed to be a relationship between the parties that make the claims of corrective justice appropriate to them – and not to others” (1995, p. 66). This means that those who have suffered a particular injustice have claims not against everyone but someone in particular. The idea is that, after an injustice was committed, the claims for correction or compensation are restricted to those parties involved in the commission of the injustice.

77 Similarly, Richard Vernon asserts that the claim for corrective or compensatory justice “depends on the continuity of A (the expropriator), X (the thing taken) and B (the victim)” (2003, p. 551). 80

To show these points would not have been problematic if we were discussing how to respond to the Conquest of the Desert in the late 19th century. This is because both the perpetrators and the victims of the injustice would have been easier to identify. However, more than 130 years have passed since the Conquest of the Desert, and all the people who were involved in the military campaigns are dead. Given that all individuals involved in the Conquest of the Desert are no longer with us, it is difficult to explain how the correlativity between victims and perpetrators can be maintained over the years. Thus, concerning the Conquest of the Desert, the challenge is to find a way of explaining how the correlativity between victims and perpetrators has endured even if no present-day person was alive at the time that the Conquest of the Desert took place.

In this chapter, I show that even if those persons involved in the Conquest of the Desert are dead, this fact is insufficient for showing that the injustice was superseded. Three particular objections connected with the agents involved in the Conquest of the Desert have to be resolved to claim that present-day non-indigenous Argentine citizens still have reasons to provide reparation to present living members of indigenous communities affected by the military campaigns. The first objection is related to the victims of injustices. The Conquest of the Desert and the policies surrounding it affected indigenous persons in numerous ways. As individuals, the Conquest of the Desert might have negatively affected their level of well-being. However, even if past indigenous persons were harmed, it can be objected that it is incoherent to assert that the lasting impacts of the Conquest of the Desert can negatively affect the level of well-being of currently living indigenous persons. The objection rests on the famous non-identity problem popularized and analyzed in detail by Derek Parfit in his book Reasons and Persons (1984).78 The problem questions the validity of individual claims for compensation of presently living indigenous people since, arguably, had the Conquest of the Desert not been carried out, they would not be better off but instead never would have existed.

In response to this objection I draw on Lukas Meyer’s (2003, 2021a) threshold notion of harm. I argue that presently living indigenous people ought to be considered as

78 Parfit explored different aspects of the non-identity problem and its consequences for other connected normative problems in other works as well (1976a; 1976b; 1982; 1983; 1986a; 1986b; 2004; 2011b; 2017b). 81 negatively affected by the Conquest of the Desert if, as a consequence of such a set of policies, they have a level of well-being below a normatively relevant threshold.

Indigenous persons can also be affected as members of the group or community they belong to. Indeed, many claims of currently living indigenous people are made in the name of the collective.79 Concerning those demands held in the name of some collective entity, it is sometimes argued that for a claim of compensatory justice to be justified, it must be shown that the members of indigenous groups who are pressing claims must be part of the very same entity who suffered past injustices. In this view, in the case of Argentina, it has to be shown that present living members of those groups or communities who are making claims today in the name of the collective entity are part of the same groups or communities that suffered the Conquest of the Desert. However, the history of divisions and fusions among indigenous groups in Argentina has led to changes in their identity. Hence, those members of indigenous groups claiming compensation today would not be part of the same communities who suffered injustices in the past.80 Thus, in this account, it is not possible to claim that those groups who suffered past injustices continue to exist in the present. If this is the case, the correlativity between the perpetrators and the victims of the injustice has been broken and past injustices have been superseded by changes in circumstances.81

In responding to this objection, I argue that current indigenous claimants do not need to be part of the same entity whose members suffered injustices in the past. All that is necessary is that the groups who suffered historical injustices have survived or endured into the present. As I will argue, these are two different assertions that lead to different practical conclusions. If I can show this, then, concerning those claims made in the name of the collective entity, the correlativity between the perpetrators and victims is not necessarily broken by changes in the identity of the parties involved in the original injustice.

79 With respect to the Mapuce people, the epilogue to ¡… Escucha Winka…! (Available in English at https://hemi.nyu.edu/hemi/en/emisferica-111-decolonial-gesture/carcamo ) summarizes their thoughts about their territorial claims. See also Piciñam, et al (2010). 80 A brief summary of how this argument has been held in the Argentinian mass media can be seen in Trentini, Valverde, Radovich, Beron & Balazote (2010). 81 This difficulty associated with the continuity of the parties involved in historical injustices (generally groups or communities) is one reason some authors focus on the continuity of structures rather than on the continuity of agents. See Lu (2017, pp. 159-166). 82

The third objection concerns the perpetrators of the injustice. In the case of Argentina, even if it is accepted that people today can be held responsible for redressing injustices committed by past members of the community they belong to, it is sometimes suggested that a vast majority of present-day non-indigenous Argentine citizens and those who perpetrated the Conquest of the Desert are not part of the same community. An important sector of the Argentine population sees themselves as “Hijos de los Barcos” (descendants of the ships).82 They regard themselves as descendants of immigrants who arrived in the country only after the military campaigns occurred. Hence, they believe they have no relationship with the perpetrators of the injustice. If this objection holds, then changes in circumstances associated with the continuity of the perpetrator of the historical injustice might also lead to its supersession.

In response to this objection, I show why Argentines today and those who perpetrated the Conquest of the Desert ought to be regarded as members of the same community. In particular, by relying on Lukas Meyer’s notion of collective inheritance (1997; 2001), I argue that if Argentines today claim that they themselves and those who bequeathed them certain goods are part of the same community, they cannot consistently reject such a membership when the very same people passed on certain evils. Further, I explain why currently living Argentines have strong reasons for disposing of those public evils associated with the Conquest of the Desert bequeathed by their predecessors.

I. The Non-Identity Problem and the Individual Claims for Compensation

The first question to be assessed is whether it can be asserted that there are currently living people affected by the lasting impact of evils associated with the Conquest of the Desert. Since the Conquest of the Desert was carried out more than 130 years ago, there are no longer persons among us who suffered these injustices in the 19th century. However, two kinds of entities might still be affected by the lasting impact of these injustices. First, indigenous people can make individual claims for compensation

82 The idea that Argentines are European descendants was popularized by the famous phrase attributed to the literature Nobel Laureate Octavio Paz: “While the Mexicans descend from the Aztecs and the Peruvians from the Incas, the Argentinians descend from the ships”. The idea also appears repeatedly in the words of many icons of Argentine culture. For instance, Jorge Luis Borges asserted in 1982: “I think that somehow we are all Europeans. Europeans in exile, in exile, right? I believe that Argentinians are European exiles. And that makes us inherit all the western culture. (…) In any case, I think I have nothing in common, well, let us say with indigenous peoples. I have a drop of Guarani blood lying around, but that does not count for much.” [El Pais, [January 25th, 1998] “Borges, harto de Borges” https://elpais.com/elpais/2014/07/16/eps/1405534430_622190.html 83 because their well-being has been negatively affected due to the historical injustice. Second, an indigenous person can also have claims for compensation by virtue of being a member of a community or group who suffered past injustices, i.e. they might have claims in the name of the community or group they belong to.

The historical account of Cacique (chief) Pincén, who was imprisoned with several members of his family on Martín García Island by Colonel Conrado Villegas in November 1878, illustrates these two kinds of demands. As a result of this and further military campaigns in the region of Trenque Lauquén in Buenos Aires, most surviving members of this community were forced to migrate to lands either in the west or south of the country. Although the history of the members of the community is difficult to trace, it is recorded that Pincén’s granddaughter Marcelina Pincén and her partner Honorio Cejas organized several meetings with the descendants of the community of Cacique Pincén in late 1960 (Nagy 2014b, p. 100).

Nevertheless, these attempts to legally organize the community were inhibited by repressive policies initiated by the Peronist Minister of Social Welfare José Lopez-Rega, and repression intensified during the last military dictatorship of 1976-1983 (Nagy 2014b, p. 103). With the return of democracy to Argentina, Lorenzo Cejas-Pincén, great- grandson of Cacique Pincén, promoted the legal recognition of what is now known as the Indigenous Community Cacique Pincén. The community did not obtained its legal inscription in the Argentinian National Registry of Indigenous Communities (Re.Na.C.I. for its initials in Spanish) until April 14th, 2015,83 and many members of the community still live in precarity without having their needs satisfied. Further, the community has never received legal title to sufficient arable land to ensure self-sufficiency (Nagy 2014b, pp. 102-123).

Think about those demands for compensation currently living individuals have for being victims of historical injustices. For instance, take the case of the Logko (chief) Lorenzo Cejas-Pincén, the great-grandson of Cacique Pincén. Are there reasons in favor of compensating him due to the injustices suffered by his predecessors? Suppose we understand that people have valid claims for compensation because they have suffered

83 For a detailed description of the history of the Indigenous Community Cacique Pincén, see Nagy (2012). See also http://datos.jus.gob.ar/dataset/listado-de-comunidades-indigenas/archivo/f9b57566-3e7c-4449- b984-49a26897eb77 (accessed August 31st, 2020). 84 harm. To assert that there are reasons for compensating Lorenzo owed to the injustices suffered by his ancestors, we have to show that those injustices have harmed him.84

According to the most widely accepted conception of harm, a person suffers harm when she is worse off than she would have been otherwise (Feinberg 1984, p. 34). On this view, usually labeled the counterfactual conception of harming, a person or entity A harms person B, if “A’s action is the cause of an adverse effect on B’s self-interest” (Feinberg 1987, p. 148). According to Feinberg, this statement must be assessed according to what he calls “the counterfactual test,” which is satisfied if “B’s personal interest is in a worse condition … than it would be had A not acted as he did” (Feinberg 1987, p. 149). On this view, for claiming that Lorenzo has been harmed because of the injustices suffered by his ancestors, we have to show that his personal interest (or at least his level of well-being) is in a worse condition than it would have been if, for instance, his great-grandfather (Cacique Pincén) had not been expelled from his lands and imprisoned on Martin Garcia Island.

The problem for asserting that Lorenzo has been harmed is that it is likely that the expulsion and the imprisonment of his great-grandfather were among the necessary causes of his existence. As Derek Parfit has shown, “As well as having effects on the quality of future people’s lives, our acts and policies may affect who it is who will later live” (2011b, p. 218). This is known as the non-identity problem,85 and rests on details related to how human beings reproduce. These details are relevant since, regardless of the theory of personal identity to be sustained, every person grows from a pair of cells: an ovum and one spermatozoon. As in the space of a month, neither the ovum nor the spermatozoon would be the same, it is true that “if any particular person had not been conceived within a month of a time when he was in fact conceived, he would, in fact, never have existed” (Parfit 1984, p. 352). Depending on when conception occurs and the conditions which influence it, the identity of the resulting person will be different. Thus,

84 I proceed on the assumption that Lorenzo Cejas-Pincén is still alive. However, while revising this chapter, I sadly learned that he died. [La Opinion Trenque-Lauquen, March 8th, 2021] https://laopinion.com.ar/con- sentido-pesar-la-comunidad-de-trenque-lauquen-despidio-al-lonko-lorenzo-cejas-pincen/ However, his successors are continuing with Lorenzo’s claims. In this chapter, I assume that all considerations I apply to Lorenzo when he was alive can be extended to his successors and, analogously, to further successors of Cacique Pincén, particularly, to Isabel Araujo-Pincén great-great granddaughter of Cacique Pincén and current Logko of the Indigenous Community Cacique Pincén. 85 The problem was discovered almost simultaneously by Derek Parfit (1976a), Thomas Schwartz (1978), and Robert Adams (1979). It has also been called “the paradox of future individuals” (Kavka, 1982, pp. 93- 112) or the problem of the “contingency of future people upon our decisions” (Meyer 2021a). A relatively recent extensive discussion on the non-identity problem can be seen in Boonin (2014). 85 actions and policies cannot make those whose existence is contingent upon them worse off. The problem has bearing on the possible validity of individual claims for compensation in cases like that of Lorenzo Cejas-Pincén since had his great-grandfather not been imprisoned (or, in general, had the Conquest of the Desert not being carried out), he would not be better off but, instead, he would not have existed at all. Thus, according to the counterfactual conception of harming, Lorenzo has not been harmed because of the injustice suffered by his great-grandfather and does not have valid claims for compensation owed to the injustice suffered by his ancestors.

However, we are not forced to accept the counterfactual conception of harming. For explaining why people in the situation of the kind described above have been harmed, we might rely on what has been called the threshold conception of harming. According to this conception, defended in detail by Lukas Meyer, a person has been harmed when she was caused to be in a state that is below some normatively defined threshold (Meyer 2003, p. 147; 2006, pp. 409-410). On this view, the status of harm stems from specific properties associated with subthreshold states that are intrinsically bad. However, the acceptance of this view demands an explanation of it in virtue of which properties to be in sub-threshold states are intrinsically bad. I will discuss this point in Chapter 5 (Section I). For the time being, let me assume that causing someone to be in a sub-threshold state is harmful because it implies that the person’s interest in meeting their basic needs has not been fulfilled.

According to this version of the threshold conception of harming, it can be argued that Lorenzo has been harmed if his basic needs have not been satisfied due to the unjust eviction and imprisonment of his great-grandfather. I am not claiming that, in fact, he was harmed. I am merely claiming that the threshold conception of harming allows us to claim that he can be harmed because of the injustices suffered by his ancestors. He would be harmed in this sense, however, only so long past injustices are causally connected with his current level of well-being being below the threshold of harm. This way of understanding harmful effects of historical injustices conforms to the necessity requirement (defended in the introduction of this dissertation), according to which for the

86 supersession thesis to be plausible, it has to prioritize the concerns for those persons who are below a relevant threshold of well-being.86

However, what if his level of well-being is above the threshold of harm, namely, his basic needs are satisfied? Does it follow that he has not been harmed because of past injustices? It depends. As the history of the Indigenous Community Cacique Pincén shows, the injustices indigenous persons suffered in Argentina are not limited by the events surrounding the Conquest of the Desert. For instance, Lorenzo Cejas-Pincén asserted:

My father, Honorio Cejas, gathered together the indigenous people, but a community was not [formally] structured. Besides, indigenous meetings were prohibited, and ceremonies could not be held. My mother, Marcelina Pincén, was imprisoned (...). Then there was an attempt to form the community in 1973 (...). However, after 1976, because of the coup d'état, no more work could be done (reported by Nagy 2014b, pp. 103-104).

Regarding this, there is no need to rely on the threshold conception of harming to explain why Lorenzo has been harmed. The non-identity problem does not have relevance with respect to the possible harms he might have suffered concerning the events that occurred after he was born. If it is the case that, as a consequence of the imprisonment of his mother or the prohibition of having indigenous meetings, Lorenzo is worse off than he would have been otherwise, the counterfactual conception of harming can explain why he has been harmed.

There are further wrongs that can be explained by relying on the counterfactual conception of harming. In considering cases of land theft, George Sher (2005) notices that the failure of returning the land to the original holder is a distinct wrong from the original unjust seizure (p. 192). Thus, it might be true that some person would not have

86 I am assuming here that to compensate people in the situation of Lorenzo does not cause other people to be below a relevant threshold of well-being. In the next chapter (although for groups) I will deal with the issue of conflicting claims in more detail. Still, regarding individual compensation, a good way of providing the necessary means to achieve a standard level of well-being without risking that other people fall below it is by the implementation of a tax system fairly distributed over the general population. This is of particular relevance here since the benefits of the Conquest of the Desert are widespread among the broader (non- indigenous) population of Argentina. As Andreas Føllesdal asserts “When, as is sometimes the case, benefits of injustice are broadly dispersed, it would seem plausible that the burdens of reparation should also be broadly shared. This the surrounding society in general may most plausible held accountable, providing compensation etc. through taxes” (2000, p. 33). 87 been born had her parents’ lands not been stolen. However, as Sher (2005) asserts, her parents ought to be compensated even after this person was born (p. 192).

When Colonel Villegas arrested Cacique Pincén in 1878, it is also true that as a consequence of this and other facts associated with the Conquest of the Desert, many members of Pincén’s tribe were dispersed and expelled from their lands. Rosa Pincén (daughter of Cacique Pincén and grandmother of Lorenzo) was among these people (Nagy 2012, p. 317). It might be true that Rosa’s daughter, Marcelina, would not have existed had her mother not being expelled from her lands. However, Rosa ought to be compensated even after her daughter, Marcelina, was born. As Sher argues, concerning this person, in our case, Marcelina, “the wrong for which [s]he is owed compensation is not the original one, which was done before [s]he was conceived, but rather some subsequent wrongful failure to compensate for the original wrong that takes place after [s]he is conceived” [emphasis in the original] (2005, p. 192). It is wrongful that this child’s parent is not compensated. Given that the failure occurs after her child, Marcelina, has been born, the child might have a valid claim for compensation that is not at odds with the non-identity problem. According to Sher, “Because it is perfectly coherent to say that the child would be better off if one of these post-conception wrongs had not been done, it must also be coherent to say that the child is owed compensation for that post- conception wrong’s effects” (2005, pp. 192-193).

In our case, this is a new injustice that can be placed after Marcelina was born. As history shows, Marcelina was also not adequately compensated, and such a failure can also be placed after her son, Lorenzo, was born. Given that this further wrong occurs after Lorenzo comes into existence, he might have a valid claim for compensation for being worse off than he would have been had his mother received compensation. Of course, how much compensation is owed is a tricky issue (Sher 2005, pp. 193-194); however, the point is that such an amount is not limited by the fact that the claimant’s basic needs are satisfied.87 The fact that compensation might be owed even in non-identity cases and in

87 This view assumes that we accept some version of the disjunctive notion of harm. In my favorite interpretation, this view asserts that a person P suffers harm only if: [a] this person P is (in some respect) in a sub-threshold state, or [b] this person P is in a state S, and if S had not obtained, this person P would have been (in some respect) better off. This conception of harm is based on Meyer’s combined or disjunctive notion of harming (2003, pp. 154-155; 2021a, section 3.4). Meyer states his disjunctive notion of harming as follows: “(IV) (disjunctive) An action (or inaction) at time t1 harms someone only if either (as in III) the agent thereby causes (allows) this person to be in a sub-threshold state, and, if the agent cannot avoid harm in this sense, does not minimize harm; or (as in II) the agent cause this person to be worse off at some later time t2 than the person would have been at t2 had the agent not interacted with this person at 88 situations in which the person to be potentially compensated is above the relevant threshold of well-being has the advantage of reducing incentives for committing injustices. All the time in which the perpetrator did not fulfill his or her duty to provide compensation should count. For this reason, the view I endorse here partially accommodates the third requirement, moral hazard (defended in the introduction of this dissertation), in virtue of which the supersession thesis should minimize perverse incentives for committing injustices or breaching duties.88 If a change in circumstances annuls initial harms, additional harms arising from not having fulfilled the reparative duty still await compensation.

II. Numerical Identity and the Continued Existence of Groups over Time

Claims for compensation owed to the lasting impacts of historical injustices are not limited to those that currently living indigenous persons might have as individuals. They can also have claims in the name of the collective entity they belong to. For instance, Article 3 of the Statute of 1995 of the Indigenous Community Cacique Pincén asserts:

The aims [of the community] will be: a) to reaffirm and to vindicate the indigenous identity and tradition of the community; b) to defend the lands of the community and to receive titles of lands suitable for exploitations and activities that serve for the progress of the community; c) to negotiate for support for the achievement of the objectives [of the community] with public and private local, provincial, national and international organizations (Nagy 2014b, p. 108).

all” (Meyer 2021a, section 3.2). There are at least four differences between Meyer’s and my own account. First, while Meyer’s account is about harming (which includes considerations on both harmed states and harming actions), my account is only about harmed states. Second, Meyer’s second clause (II) seems to be of the kind often called comparative or an action-relative account of harming, while my view is better understood as an element of non-comparative or an effect-relative account of harming. According to comparative views of harming, harming actions must cause a particular difference in the well-being of the person affected. Instead, according to non-comparative views of harming, the agent can be responsible for harming someone even if the victim is not worse off had the agent acted as he did. In this view, harming a person is merely causing someone to be in some harmed state. Thus, non-comparative views about harming are compatible with both comparative and non-comparative views about harmed states (Woollard 2012, p. 685; Gardner 2017, p. 3). Third, since Meyer’s notion of harming, particularly the clause (II,) is comparative or action-relative, his view seems unable to explain cases of overdetermined or redundant harms that might occur above the threshold of harm. Instead, since my view of harm is better understood as a component of non-comparative or effect-relative views of harming, it can explain cases of overdetermined or redundant harms. Fourth, while Meyer’s account seems to make overall or on-balance judgments for identifying harm, in my view, someone can be harmed if this person is worse off or below the threshold in some respect, even if this person is on-balance above the threshold or better off. Elsewhere, I have explained these differences in detail (Truccone-Borgogno 2017, pp. 1189-1191; see also Gardner 2015, pp. 430 and 434). 88 I will say more about this in Chapter 7. 89

For the compensatory claims made in the name of the collective to be justified, it seems that it has to be shown that the members of indigenous groups making claims today are part of the very same entity who suffered injustices in the past. Considering the identities of the parties involved in some past injustice, Jeremy Waldron asserts that for defending that some past injustice has not been superseded, the entity who has suffered the injustice many years ago must have endured into the present (Waldron 2004b, p. 64). If this is the case, the correlativity between the parties involved in the injustice might not have been broken. Hence, present-day members of the group or community who suffered the injustice might have valid claims for reparation against the present-day members of the group or community who perpetrated it.

Waldron gives a specific example regarding the problem of groups’ identity. This example highlights how changes in their identity may break the correlativity between the entities involved in some past injustice. He quotes a New Zealand case regarding Māori fishing rights expropriated by 19th century colonizers. Waldron notes that the Māori’s fishing rights were “stolen” from the traditional rural tribes (iwi) making their tribal way of living was no longer viable. As a consequence, there was a vast urban migration. Because the Māori are a communal people, they formed urban groups to cover the functions historically performed by the tribe which eventually lead to the creation of the Urban Māori Authorities (UMA). The Court of Appeal had to decide whether only the iwi or both the iwi and the UMA should be considered the relevant entity regarding the past violation of Māori fishing rights (Waldron 2004b, pp. 65-66). In this case, the Court of Appeal ruled that the fishing rights should be returned to the iwi but not to the UMA. The decision was based on an argument made by the speaker of the Treaty of Waitangi Fisheries Commission claiming that “since the iwi had had the fishing rights wrongfully taken away from them, it is to iwi that they should be returned: UMA had not suffered comparable injustice, for they did not exist at the time the expropriation took place, and so they were not entitled to any redress” [emphasis added] (Waldron 2004b, p. 66).

In that decision, the identity between the past Māori and the current iwi is the criterion used for identifying the entity whose claim is justified. However, identity is a broad term that has multiple interpretations. Thus, the first issue is to specify which kind of identity ought to be considered for assessing the endurance or survival of groups or communities over time. Derek Parfit distinguishes between numerical and qualitative identity. He exemplifies this distinction by claiming that two white billiard balls are

90 qualitatively identical. However, he asserts that if we take one of these balls and paint it red, the two balls are no longer qualitatively identical. Nevertheless, the currently red ball is numerically identical to itself when it was white (Parfit 1984, p. 201). From this perspective, qualitative identity is used for asserting that two different things share some relevant property that makes them equal. Instead, numerical identity is related to the fact that some entity has not disappeared or has not been destroyed even though some of its properties might have changed.

Imagine that the members of one group, Perpetrator, commits an injustice against the members of another group, Victim. Imagine, too, a third group, Bad-Luck. Bad-Luck is precisely like Victim, but has not suffered any injustice. In this situation, even if Victim and Bad-Luck are qualitatively identical, only Victim has justified claims for reparation against Perpetrator. This is because the injustice committed by Perpetrator against Victim generates a correlativity only between Perpetrator and Victim. Qualitative identity is not the identity more relevant for establishing such a relationship. Instead, what seems to be important when we consider claims for redressing historical injustices is numerical identity. This is because our primary concern refers to whether or not the entity which suffered injustices in the past has endured or survived into the present.89

I argue that for the continuing existence of groups, numerical identity is not necessary either, but only something that is contained in the numerical identity of groups. Given that what matters for the continued existence of groups is something contained in their numerical identity, groups may have endured if that something remains, regardless of the maintenance of their numerical identity. I suggest that what matters for asserting that the group has endured into the present is the existence of certain relevant connections between the current members of the group and those who suffered the injustice in the past. However, although the existence of such connections implies that the group who suffered past injustices has not disappeared, it does not presuppose numerical identity between the group or groups who have claims in the present and the group or groups who have suffered past injustices. Hence, as long as those connections are in place, the correlativity between the perpetrators and the victims of the injustice can be maintained

89 This does not mean that qualitative identity is not relevant. A great modification in some relevant property might change the quality of the entity so much that we will be forced to claim that it has not survived. 91 even if there is no numerical identity between the groups involved in past injustices and the groups who raise claims today.

My view is grounded on Parfit’s argument about personal identity which can be rightfully transferred to the issue of the identity of groups, at least for asserting that some group has not ceased to exist.90 Parfit starts his argument with a case in which a person P has an accident, and their body is fatally injured. However, their brain is divided and transplanted into two bodies, precisely like P’s old body. Each of the resulting persons believes they are P, remembers P’s life, and is in all the other aspects psychologically continuous with P (Parfit 1984, p. 254). The question, therefore, is whether P survived their division. Parfit thinks that there are four possible answers to that question: 1) P has not survived; 2) P has survived as one of the two persons; 3) P has survived as the other person; 4) P has survived as both persons (Parfit 1984, p. 256).

If we consider groups instead of persons, it does not seem challenging to find an analogous case for which we might ask the same question. For example, one might think about group G, which had a prominent chief, the big chief, and she has two twin children. However, the big chief has died, and group G’s rules say that the leadership has to pass to her heirs. When leadership had to pass on from the big chief to her heirs, the two future- chiefs-to-be (and, with them, half of the members of the group G) are separated. After the division, there are two groups. Each of them believes that it is G, has the memories of G, follows G’s culture, institutions, and traditions, and in everything else is like G.

Does group G continue to exist after its division? This question, as before, has four possible responses: 1) G no longer exists; 2) G continues to exist as one of the two groups; 3) G continues in existence as the other group; 4) G continues to exist as both groups. Parfit believes that his case of personal division shows that numerical identity is not a necessary condition for the survival of persons (Parfit 1984, p. 255). I tend to think that my example of group G supports the analogous claim that numerical identity is not a necessary condition for the endurance of groups over time.

In Parfit’s example about personal identity, the first response is that person P has not survived her division. Parfit thinks that this is a bad answer because a person P can

90 In defending his argument about the unimportance of personal identity, Parfit (1984) uses several examples of groups’ identity such as clubs (pp. 213-214), nations (pp. 211-212, 471-472), and political parties (p. 260). 92 survive with half of her brain destroyed. So, if P can survive with half of her brain and the other half of her brain has been destroyed, then P has to survive as well when the other half of her brain has not been destroyed but transplanted into another body (Parfit 1984, p. 256). Can we make a similar assertion regarding the case of group G? I do not see why not. It seems that if instead of G having been divided, half of the group has been destroyed, we would claim that group G continues in existence. So, if group G endures when one half has been destroyed, it seems that G has to endure as well when that half has not been destroyed but merely separated. Therefore, as in Parfit’s example, response 1) – the group G no longer exists after its division – is false.

If we accept this, possibilities 2) and 3), both in Parfit`s example and in the group G case, have to be false as well. In the example of personal identity, Parfit claims that the problem with these answers is that if each transplanted half of the brain is relevantly similar, it makes no sense to claim that the person whose brain has been divided has survived as only one of the resulting persons (Parfit 1984, p. 257). In the example of group G, we can maintain a similar claim. If half of the group is enough for asserting the endurance of the group and the two separated halves are relevantly similar, then it also makes no sense to claim that group G has continued to exist as only one of the resulting groups.

The last possibility in Parfit’s example is 4), P has survived as the two resulting persons. This might be explained, according to Parfit, because the relation between P and the two resulting persons contains all the relevant elements that are contained in ordinary survival (Parfit 1984, p. 262). Parfit argues that it is true that a person would survive if half of their brain is destroyed and the other half is transplanted in a new body. In that case, all the relevant elements necessary for claiming that someone has survived are contained. Therefore, if each half of P’s brain is separated and transplanted into two different bodies, the relation between P and each resulting person contains all the relevant elements necessary for ordinary survival (Parfit 1984, p. 262).

There are no hindrances to making a similar claim regarding group G. I have claimed that group G endures if half of it is destroyed, and the other half continues to exist. In this case, the relation between group G and the remaining group contains all the necessary elements for the endurance of the group over time. Therefore, although separated, if each half of the group continues to exist, the relation between group G and

93 each of the resulting groups has to contain all the necessary relevant elements found in the ordinary endurance or survival of groups as well.

The previous cases show that numerical identity does not matter or, at least, is not necessary for claiming that some entity has survived or endured after its division. In Parfit’s example of personal identity, this is clear since numerical identity is a transitive relation, and the two resulting persons are not the same. Although it is plausible to claim that P is numerically identical to one of the other persons P1 and it is plausible to claim that P is numerically identical to the other person P2, it is not true that P1 and P2 are numerically identical to each other. However, even if the two resulting persons are not numerically identical to each other, the relation between each of them and the original person P contains all the vital elements required for ordinary survival. This is why numerical identity is not necessary for survival. If numerical identity were a necessary element for survival, we would have to claim that P has not survived as either P1 or P2. However, as highlighted above, this is not true.

Similar claims apply to the numerical identity of groups. Although it is plausible to assert that G is numerically identical to one of the other groups G1 and it is plausible to claim that G is numerically identical to the other group G2, it is not true that G1 and G2 are numerically identical to each other. However, even if the resulting groups are not numerically identical to each other, the relations between each of them and the original G contain all the vital elements required for ordinary endurance of groups over time. If numerical identity were a necessary element for the continued existence of groups, we should have to claim that group G has not continued its existence as either G1 or G2.

However, this is not the case. Group G has endured as both groups G1 and G2. Thus, the maintenance of the numerical identity is not required for the continued existence of groups over time.

The previous conclusion is important because, in the history of groups, there have been many divisions, and such divisions have often led to the consequence that some of the resulting groups are not numerically identical to the group or groups who suffered injustices in the past. In this way, it is denied that today, the correlativity between the perpetrators and the victims of some past injustice is still present. The New Zealand case in which the Court of Appeal denied that the UMA deserves reparation for stolen fishing rights demonstrates this point. The Court denied the UMA’s claims because, according to them, only the iwi but not the UMA existed at the time in which the expropriation of 94 fishing rights took place (Waldron 2004b, p. 66). In this case, the Court of Appeal seems to have taken numerical identity as the relevant criterion for claiming that the members of the iwi but not the UMA have justifiable claims to the benefits of fishing rights. According to the criterion used in this decision, the correlativity generated in the past, when the government of New Zealand stole Māori fishing rights, is maintained only concerning the iwi but not the UMA.

Taking numerical identity as the only relevant criterion for ascertaining the endurance of groups over time is a mistake. As I have analyzed in the case of group G, in order to claim that some group continues to exist, it is not necessary to prove that the current claimants are members of the group or community that is numerically identical to the group who has suffered the injustice in the past. The only point relevant for claiming that some group has endured over time is that the groups that exist today are in an appropriate relationship with the old group. This proper relationship does not need to entail numerical identity. It could be that two different groups would be related to one old group in a similar way so that we might claim that the old group has endured as the two new groups. If we accept this, the correlativity generated between, for instance, the government of New Zealand and the Māori might be maintained concerning both the iwi and the UMA. We would not need to choose between them. Both groups might be in an appropriate relationship with those who have suffered injustice in the past.

III. Divisions and Fusions among Indigenous Peoples

If the argument outlined above is correct, it has significant consequences for repairing historical injustices perpetrated against indigenous peoples in Argentina during the Conquest of the Desert. Mapuce (also called Araucanians), Tehuelches, and Ranqueles are among the peoples that suffered those injustices. Consider the case of the Mapuce people, which is the most numerous set of indigenous groups and currently the most active in their claims for receiving reparation for the historical injustices their predecessors suffered.91

The issue is that after the Conquest of the Desert, different Mapuce communities were separated not only because the national borders of Argentina and Chile divide their

91 According to the last population census performed by the Argentine National Institute on Statistics and Census (INDEC, for its initials in Spanish), in 2010, 205,009 persons recognized themselves as Mapuce or descendants of Mapuce people. According to the census, Mapuce people comprise 21.5% of the indigenous population in Argentina (2012, p. 281). 95 ancestral lands (the Waj Mapu) but also because Argentina is a federal state. This means that each of its provinces has its own legal system and, to a certain extent, varying requirements that have changed the Mapuce’s way of living and identity to different degrees.92 However, the maintenance of the numerical identity is not necessary for claiming that some group has continued to exist over time. Hence, the fact that presently several Mapuce groups are not numerically identical to those who suffered past injustices does not speak against considering that the original Mapuce groups have endured into the present. That mere fact is not strong enough for breaking the correlativity between the perpetrator of the injustice committed in the past and the indigenous communities currently claiming reparation in the present. Therefore, even if we might identify changes in the identity of groups, such variations do not imply that the groups or communities who suffered past injustices have ceased to exist. Therefore, changes in groups’ identity do not necessarily lead to the supersession of injustice.

There is a further point worth noting. The fact that the maintenance of the numerical identity of the groups is not a necessary element for its continued existence over time works in the opposite direction as well. Like divisions, it is possible to imagine cases of fusion. Like situations of division, these cases show why numerical identity is not necessary for claiming that some entity has survived or endured. In his discussion on personal identity, Parfit suggests a case in which two persons come together and their two bodies grow into one while still remembering the life of both original persons (Parfit 1984, p. 298). In this case, we cannot claim that the person after the fusion is the same as each of the other two. The logic of identity does not fit here. However, as Parfit claims, from that fact, it does not follow that the two persons that have merged into a new one died. That depends on the kind of relation that exists between this person and the other two (Parfit 1984, pp. 298-299).

Cases of fusion are relevant for indigenous claims as well. Currently in Argentina, many demands are not made on behalf of the Mapuce people but on behalf of different Mapuce-Tehuelche communities.93 There is a well-known controversy both in Argentina

92 The book edited by Claudia Briones (2005) specifies how the Mapuce way of living differs according to the province they live in. 93 This is the case of the Indigenous Community Cacique Pincén. According to the official records, it is registered as a Mapuce-Tehuelche community, id: 6021. http://datos.jus.gob.ar/dataset/listado-de- comunidades-indigenas/archivo/f9b57566-3e7c-4449-b984-49a26897eb77 (accessed August 31st, 2020). Additionally, the Organization of the Mapuce and Tehuelche Communities (OCMT) has been created to coordinate the prior claims of each community (Ramos and Delrio 2005, p. 84; Kropff, 2005, p. 113). 96 and Chile about whether these communities were part of the same people in the past. Some scholars claim that the Tehuelches were part of the larger Mapuce community. They claim that the Mapuce are an indigenous people that have lived on both sides of the Andes (Fvxa Mawiza) since, at least, the year 660 AD and in a more organized way since the 16th century (Mariman-Quemado 2006, p. 61; Radovich 2003, p. 87).94 These scholars claim that the confusion referring to the possibility that the Mapuce and the Tehuelche may not have been part of the same people relies on the fact that the name Mapuce was given to the whole community many years after it was organized (Millalen-Paillal 2006, pp. 6-19). Therefore, according to this view, it makes no difference that a community presents itself as Mapuce or Mapuce-Tehuelche. In both cases, the current claimant would be the continuation of the old groups or people who suffered injustices during the Conquest of the Desert.

However, other scholars have asserted that the Mapuce people originally belonged to Chile (Casamiquela 1985; Canals-Frau 1946). These authors claim that in the south of Argentina, there has never been, at least as a first nation, a Mapuce group. The Argentine indigenous people, according to them, were the Tehuelches. For example, Casamiquela asserted, “Mapuche [(Mapuce)] is the name given to the people who lived and are currently living in Araucania [Chilean territory]” (1985, p. 9). These authors distinguished both communities because, according to them, Mapuce people were initially farmers, while Tehuelches were initially hunters (Casamiquela 1985, p. 14). The fact that agriculture among southern indigenous peoples in Argentina developed after its development in Chile proves, according to this line of thinking, that there was a process of Mapucinization (Araucanization) of the Argentine indigenous peoples.95

This group of scholars disagrees among themselves regarding the period in which the “Chilean” Mapuce (or Araucanians) arrived in Argentina. On the one hand, those enrolled in the historic-cultural school of ethnology claim that the Araucanization of the Pampas was a process that took place between the 16th and the early 18th century. On the other hand, a different group of scholars enrolled in the social-anthropology school asserts that the Araucanization of the Pampas occurred later and ended in the 19th century

94 In particular, they claim that Hulilliches, Lafkenches, Moluches, Nagche, Pampas, Pehuenches, Ranqueles, and Tehuelches were ruled by the Mapuce’s Ad Mapu (Toledo-Llancaqueo 2006, p. 22). 95 Nevertheless, some current anthropological studies suggest that Casamiquela’s theory is mistaken. If that theory were true, it would not be possible to explain why costumes can change and evolve without implying that the original group has ceased to exist (Valverde 2015, p. 329). 97

(Mandrini and Ortelli 2002, p. 242). If we accept the first of these two positions, it makes no difference whether the Mapuce and the Tehuelche were initially part of the same group. It is irrelevant because the process of Araucanization (Mapuchinization), that is the fusion of these two groups, took place long before the Conquest of the Desert.

Nevertheless, let us accept for the sake of argument that the position of those who claim that the Mapuce and the Tehuelche did not merge before the Conquest of the Desert is correct. Let us also accept that the Conquest of the Desert was a set of injustices committed against the Tehuelches and not against the Mapuce people. Further, as this narrative sometimes goes, let us assume that the Tehuelche and the Mapuce people fully merged in 1886, that is, a year after the Conquest of the Desert ended. Furthermore, let us assume, as this view also asserts, that the pure Tehuelche disappeared a few decades after the “last 200 Tehuelche” were identified in 1967.96 What follows if we accept all these facts? It follows that the entity or groups who are currently claiming reparation are not the same entity or groups who suffered injustices in the past. There is not a numerical identity between them. This suggests that the correlativity between the community who perpetrated the injustice and the group or groups who are currently claiming reparation has been broken.

However, fusions, like divisions, do not imply that the groups who merged ceased to exist. In this regard, according to Parfit, although concerning personal identity, it is possible to assert that the person who is going to merge with another survives if two conditions are met. First (1), if there is a relevant connectedness between the old persons and the newly merged person to an important degree. Second (2), if each of the old persons values the new merged person’s features (Parfit 1984, p. 299). I think that these two conditions might be applied to the situations of groups or communities as well.

If we focus on the Mapuce-Tehuelche situation, in the above narrative, even if the process of fusion ended after the Conquest of the Desert, the connectedness between the old groups and the new ones was by no means negligible. Even under the assumption that the Mapuce and the Tehuelche were not initially part of the same people, it is sometimes recognized that before the process of Araucanization (Mapucinization), a situation of Tehuelchization took place, and many Mapuce groups adopted some customs that initially belonged to the Tehuelche (Aguerre 2008, pp. 27-28). For instance, groups of Mapuce

96 This narrative is highlighted although not endorsed by Ramos and Delrio (2005, p. 76) 98 and Tehuelche continued to live by hunting and grazing as the old Tehuelche did (Martinez-Sarasola 1998, p. 115). Furthermore, these groups also incorporated certain agricultural practices that were held among the old “Chilean” Mapuce (Casamiquela 1985, p. 14). Similar patterns of fusion have taken place concerning their political organization, cultural customs (Canals-Frau, 1946, p. 162), religious practices, language, and clothing (Mandrini and Ortelli 1995, pp. 141-146). This process of fusion was favored by some of the policies the Argentine government pursued after the Conquest of the Desert since many Tehuelche and Mapuce survivors were forced to live together (Martinez-Sarasola 1998, p. 178). Therefore, it seems that there was an important degree of connectedness between the new and the old groups as the first condition of the endurance of groups requires.

However, what about the second requirement? How the groups regarded the fusion into new ones? This is a complicated question because it is hard to know what they thought about the new groups’ characteristics. As a starting point we can take Andreas Føllesdal’s assertion that “changes in culture pose a challenge to coherence and continuity” (1996, p. 9). As he highlights, this is because changes in culture, customs, and institutions cause some options to appear and others to disappear. However, individuals rely on expectations formed on the basis of their own culture and institutions for framing their future life plans. In Føllesdal’s view, this interest does not preclude cultural and institutional changes. However, “[they] should not be too abrupt, since members of a culture have an interest in revising their plans as options and consequences change” (Føllesdal 1996, p. 9). For this reason, group members have claims to be able “to regulate the speed and direction of change” on the basis of having an interest “in controlling cultural changes that matter for individual’s expectations (Føllesdal 2000, p. 26).

For the purposes of this chapter, Føllesdal’s argument helps explain why if one community had suddenly imposed certain practices on another, the case for the survival or endurance of the second would have been much more difficult. One reason for this is that abrupt and unexpected changes in culture and institutions violate the group’ members expectations (Føllesdal 2004, p. 345). For this reason, when claiming that the old group continues to exist, it seems necessary that the members of the past group are able to adapt

99 their life plans to new circumstances. Otherwise, it would be hard to explain how the new cultural, societal, and institutional norms are their own.97

In the light of these considerations, the battles of Senguer, Languiñeo, and Shotel- Kaike, which are among the most famous encounters between Tehuelches and Mapuce at the beginning of the 19th century, seem to speak against considering both groups as having continued to exist after their fusion. However, over time, the relationship between different groups mutated, and links of marriage, filiation, and commerce resulted in a new ethnicity (Aguerre 2008, pp. 44-46). It seems that members of both groups had certain and significant control over the direction and speed of change. In the end, in this narrative, the fusion between the Mapuce and the Tehuelche was a long process that included a complex network of mutual interchanges in which many practices were gradually adopted, and others were gradually dropped until a moment when both groups were indistinguishable from each other (Mandrini & Ortelli 2002, p. 246). As some scholars assert, during this process, each of the entities adopted the practices of the other that they considered more valuable up to the point of keeping only those practices that they valued more (Martinez-Sarasola 1998, pp. 115-116). This suggests that both groups saw specific value in the practices that, after the fusion, were incorporated into their ways of living, fulfilling the second condition for the survival of groups.

Suppose the last two criteria for assessing the survival or endurance of groups are accepted. In that case, the fact that the Conquest of the Desert was committed against the Tehuelche and not against the Mapuce community does not mean that the initial correlativity between the perpetrator and the victim of the injustice is broken. Even according to this understanding of the historical facts, the Tehuelche had not ceased to exist when they merged with the Mapuce. Therefore, the correlativity between the perpetrators of the injustice and the current Mapuce-Tehuelche people as victims of such injustice can still be maintained.98

97 I will say more about this in the next chapter (Sections V and VI). 98 If someone were of the view that the Mapuce did not suffer the Conquest of the Desert, that they never merged with the Tehuelche, that the Tehuelche no longer exist, and that current claims for reparation are only made in the name of the Mapuce community, then it might be true that this Mapuce community has no claim in the name of the collective entity due to the injustices suffered by indigenous groups in the past. However, from this, it does not follow that their current members do not have individual compensation claims owed to the lasting impacts of the Conquest of the Desert. It might be the case that the Conquest of the Desert causes consequences that are suffered for currently living members of indigenous people today even if they are members of groups that have no relation whatsoever with those groups who suffered the military campaigns in the past. Thank you to Lukas Meyer for pointing this out. 100

IV. The Continued Existence of Indigenous Peoples into the Present

So far, I have argued that although both cases of division and fusion speak against considering the group or community who suffered injustices in the past as numerically identical to the one (or those) who is (or are) claiming reparation in the present, neither of these situations necessarily speaks in favor of claiming that such a group or community has ceased to exist. Therefore, even if there were cases of fusion and divisions in the history of the Mapuce, Tehuelche, and other indigenous peoples, from that fact it does not follow that the correlativity between the perpetrator of the injustices committed during the Conquest of the Desert and current groups of indigenous claimants is broken. Nevertheless, I still have to propose what makes some groups continue to exist over time and give an account capable of explaining what it means that present-day members belong to an entity that is in an appropriate relationship with the entity that suffered injustices in the past.

We can assert that such relations consists of the existence of a specific kind of connection between the current claimants and those past members of the entity who have suffered the historical injustice. Concerning groups, as a starting point we might claim that such a requirement prevails when there is what Meyer calls collective memory, which “is to be understood not as a collection of individual memories, but rather as a socially articulated and socially maintained ‘reality of the past’” (Meyer 2001, p. 264). In the case of the Mapuce people this is shown in their current narratives about the survival of Mapudungun (Mapuce language), and in storytelling like the cycle of Elal (Aguerre 2008, pp. 29-34). Also certain important practices dating at least to the 19th century, such as tribal organization in the Lof (community) around the authority of a Logko (chief), who is in charge of distributing, among other things, the usufructuary rights to the Mapu (territory) (Di Giminiani 2015, p. 492), seem to speak in favor of the existence of a continuous collective memory between present and past members of the group.

The notion of collective memory seems to be for groups what the continuity of memory is for individuals. As individual memory makes a person aware of their continued existence over time, collective memory seems to also make groups aware of their continued existence over time.

Derek Parfit (1984) considers Locke’s view that memories of particular past experiences provide a criterion for assessing the continued existence over time of a given

101 person (p. 205). Parfit asserts that this view about what is involved in the continued existence of persons is not entirely correct. For example, we often forget recent experiences. However, we do not think that because of our forgetfulness there is no continuity between our present self and, for instance, the self we were this morning when a forgotten event took place (Parfit 1984, p 205). However, Parfit argues that in explaining such continuity, we can appeal to what he calls overlapping chains of experience- memories (Parfit 1984, p 205). Think of a person today and his past self 20 years ago. In Locke’s view, the continued existence of this person over two decades can be ascertained as long as he directly remembers having some of the experiences of 20 years ago. However, for Parfit, for a person’s continued existence over time, all that is necessary is a chain of direct memories (Parfit 1984, p 205). As he claims, “In the case of most adults, there would be such a chain. In each day within the last twenty years, most of these people remembered some of their experiences of the previous day” (Parfit 1984, p 205). This chain of direct memories creates what he calls continuity of memory (Parfit 1984, p 205).

Continuity of memory is a particular kind of psychological connection (Parfit 1984, p. 205). On Parfit’s, particular direct psychological connections make two entities have psychological connectedness (pp. 206). Two entities, X and Y, are the same when there is strong connectedness between them, which is to be understood as the presence of enough direct psychological connections between the two (Parfit 1984, p. 206). Similarly, we might think that for X and Y to be the same group, there must be strong connectedness between them, understood not as the existence of enough direct psychological connections but as the existence of sufficient socially articulated and socially maintained direct cultural, social, and institutional connections between the two.99

In Parfit’s view, however, strong connectedness cannot be the criterion of personal (numerical) identity. This is because, as highlighted above, numerical identity is a transitive relationship. As Parfit explains, “I am now strongly connected to myself yesterday when I was strongly connected to myself two days ago when I was strongly connected to myself three days ago, and so on. It does not follow that I am strongly connected with myself twenty years ago” (1984, p. 206). It could be that there are

99 Provided that there are no divisions. I leave open what a sufficient level of connections means. In normal cases, only one direct connection seems clearly insufficient for establishing such a connectedness. 102 insufficient direct psychological connections between myself today and myself twenty years ago. Yet, I am still the same person.

With groups, it is usually the case that something similar occurs. The members of some groups today are strongly connected to the members of this group yesterday when they were strongly connected to the members of this group three days ago, and so on. However, it does not follow that there is strong connectedness between current members of a certain group and those who were part of it for instance ninety years ago. Still, the groups might be the same. Suppose we understand continuous collective memory as an encompassing term for referring to direct cultural, social, and institutional connections between the two groups. In that case, we might end up asserting that a group has not endured into the present when we cannot find enough of these direct connections between the two.

However, a continued collective memory can be interpreted differently. Instead of referring to socially articulated and socially maintained direct cultural, social, and institutional connections between the two groups at a sufficient level, we might think of overlapping chains of strong connectedness. Like persons that survive as long as there are overlapping chains of strong connectedness (having enough chains of direct memory or other direct psychological connections),100 groups can continue their existence as well if there are overlapping chains of strong connectedness between present-day members and past members of some group. In the case of groups, overlapping chains of strong connectedness occur when there is a chain of overlapping socially articulated and socially maintained shared customs, practices, institutions and narratives. This second understanding of the notion of continued collective memory helps explain why groups do not cease to exist when they gradually changed their customs, institutions, and social practices over time, even if there is no strong direct connectedness between their present and past members.101

100 Parfit refers to this relationship as psychological continuity (1984, p. 206). 101 Of course, at some point in time we should accept that the members of the group we are considering today are no longer in a relevant relationship with the very ancient members of the group that is connected by virtue of overlapping chains of strong connectedness. How much time and how many connections are necessary for this is a matter of further investigation. There might also be cases in which there is not a clear answer to this question. The point I wanted to address here is merely that not to have direct connections (in terms of customs, institutions, or social practices) with past members of a certain group does not imply that the members of these two groups are not relevantly connected to each other. 103

In this view, an appropriate relationship between a currently existing group or groups and the group or groups who suffered historical injustices exists as long as there is a continuous collective memory, interpreted as a chain of overlapping socially articulated and socially maintained shared customs, practices, narratives and institutions, between the past members and the present-day members of these groups. If this condition is present, even if we cannot claim that the entity is numerically identical to the one who has suffered the injustice in the past, we might correctly assert that we are addressing the correct entity, i.e. the entity that was, many years ago, in a correlative relationship with the perpetrators of the injustice. If the present-day entities have an appropriate relationship with the old one, the old group still exists, and the collective claims for reparation of their members might be justified. This is because the required correlativity between victims and perpetrators, which stems from the past injustice, may still be in place. Thus, in this situation, claims for the supersession of the injustice cannot be grounded on such a change of circumstances.

One important consideration here is that bloodlines or DNA relationships between the members of the groups who are claiming compensation today and past members of the same group are not required.102 In the late 19th century, on both sides of the Andes, both the governments of Argentina and Chile pursued military campaigns against indigenous people that possessed their current territories. As a result, many members of different indigenous communities were forced to flee.103

Now imagine that during the first years of the Conquest of the Desert, some Mapuce community was forced to emigrate from northern Patagonia to the southernmost region of Argentina (a plausible scenario). Assume as well that as a result of the Pacification of Araucanía in Chile, around 1883, some members of some Mapuce community of Chile crossed the Andes, and they settled with some Mapuce group of Argentina that had previously emigrated to the south of the country (also plausible).104 Imagine further that those who traveled from Chile to Argentina mixed into just one

102 This kind of relationship may be relevant for claims for compensation for being an individual victim of historical injustices, as suggested in Section I of this chapter. 103 Concerning indigenous peoples from the Pampas, chiefs Namucurá, Reuque, and Alvaro Reumay (all related to the important Logko Calfucurá) escaped to what today is Chile and obtained protection from indigenous people there (Bello 2011, pp. 251-252). 104 After the Conquest of the Desert, many Mapuce families from the Argentine Pampas were relocated in new lands of the south. After the Pacification of Araucania, some Mapuce people from Chile migrated to different provinces of current Argentine territory. Further, those migrations strengthened ties among indigenous peoples, given that the environment was hostile towards them (Bello 2011, pp. 267-268). 104 political community (let us call this group Mixed). However, when organizing their families, they preferred to interact only with those who traveled from Chile to Argentina. Imagine finally that today a DNA test of all currently living members of Mixed is carried out. As a result, it is discovered that all living members of Mixed have genetic ties only with those past members of Mixed that came to Argentina from Chile. In such a case, even if no currently living member of the group is genetically linked to those members of Mixed that suffered the Conquest of the Desert, as long as there is a continuous collective memory between past members of Mixed and its currently living members, the group still persists into the present. Hence, other things being equal, the correlativity between the perpetrators and the victims of the injustice has not been broken. Thus, in this situation, claims for the supersession of the injustice cannot be grounded on such a change in circumstances.

V. Collective Inheritance and Responsibility for Redressing Historical Injustices

However, it is one thing to say that present-day members of indigenous communities are the appropriate beneficiaries of reparations, and it is a different thing to claim that present-day non-indigenous Argentines have reasons for responding to those past injustices perpetrated by their predecessors. Concerning this second claim, much more needs to be said. To explain why currently living people have reasons for responding to historical injustices committed during the Conquest of the Desert, I will rely on Lukas Meyer’s account of collective inheritance (2001, pp. 274-286; 1997, pp. 147-150). Collective inheritance is the idea that some good can be bequeathed to members of a specific ongoing society. As individual goods are handed down to present individuals, other goods are passed to all present-day members of specific communities (Meyer 1997, p. 147). For instance, in the case of Argentina, we might think about the legacies of the 37 Generation and the 80 Generation. Many members of the 37 Generation are considered the main creators of the Argentine Constitution of 1853. Accounting for reforms, the Constitution is still valid today and incorporates among its most important legacies of the 37 Generation, “a division of powers, a system of checks and balances, a bill of rights, and also showed openness toward federalism” (Gargarella 2013, pp. 34-35).

One of the most relevant legacies bequeathed by the 80 Generation (whose members included Julio Roca, Nicolás Avellaneda, and Domingo Sarmiento) was their

105 contribution to the long Argentine tradition of guaranteeing free and equal access to education which has roots in the Constitution of 1853.105 The 80 Generation gave a considerable boost to the education system. For instance, during Roca’s presidency, laws Nº 1420 of 1884 and Nº 1597 of 1885 (the so-called Avellaneda law in honor of its intellectual author) were enacted. The former ensured compulsory, free, and secular elementary education, and the latter built the foundations of the modern Argentine university system. These ideas were brought forward in the 1918 University Reform of Córdoba, which resulted in a university system without tuition fees and based on equal access, academic freedom, and co-government between faculty, students, and graduates (Nino 1992, p. 301).

These goods – the Constitution, a system of public education, civil liberties, and, in general, a certain social and institutional order – can be considered what Joseph Raz refers to as public goods: “A good is a public good in a certain society if and only if the distribution of its benefits in that society is not subject to voluntary control by anyone other than each potential beneficiary controlling his share of the benefits” (1986, p. 198). Take, for instance, the public system of education. The idea of a system of education as an inherited public goods is analyzed by Meyer (1997), and I apply his findings to Argentina. The Argentine education system is a public good since no one can be excluded from enjoying the benefits of living in a society with a 99 percent literacy rate, and that, according to a United Nations Human Development Report, holds the highest position in Latin America on the education index (0.842).106 Further, enjoying the benefits of living in a society with these features does not detract from the benefits enjoyed by others. It is an inherited public good because past generations wanted to bequeath the education system to all members of Argentine society. The following quote by Domingo Sarmiento, the father of the Argentine elementary education system, makes this point clear:

An old dress covers the ragged man’s nudity; but torn that dress, the nudity reappears, while the education of the ragged man, although slower in its effects, ends up providing the patient with the means to dress, and by breaking the thread of the tradition of the misery of the family in which he was born.

105 Article 5 of the Constitution of 1853 established that “Each province shall enact its own Constitution (…) ensuring (…) elementary education. Article 14 asserts that “All inhabitants of the Nation are entitled to the following rights: (…) to teach and to learn”. 106 See http://uis.unesco.org/en/country/ar?theme=education-and-literacy and http://hdr.undp.org/en/data (Accessed, July 29th, 2020). 106

Therefore, education is a capital put by present generations in the interest of future generations (1896, p. 34).

One relevant consequence of having inherited public goods, such as a public education system, is that such inheritances imposes certain duties on the receivers. Meyer explains this point eloquently when he discusses some of the duties that stem from having received a highly advanced system of tertiary education. On Meyer, “the respect owed to our predecessors’ sacrifices and savings, which were intended to benefit not only us but more remote future people as well, amounts to a general obligation not to dispose of or use up those goods for their own private interest” (1997, p. 148). Consider La Noche de los Bastones Largos (The Night of the Long Batons), which is perhaps the most representative example of an intent to dispose of a public good bequeathed by predecessors in Argentina. On July 29th, 1966, during the dictatorship of Juan Carlos Onganía, in an intent to dismantle the Argentine university system and restrict academic freedom, the Federal Argentine Police removed and arrested many students and professors of the University of Buenos Aires that opposed Onganía’s rule. As Carlos Nino notes, under Onganía “the universities were purged of dissidents; opponents were detained under a state of siege; and the government, inspired by right-wing sectors of the church, established strict standards of private morality” (1996, p. 50). The attacks on professors and students not only wronged them but also affected a public good that past generations had bequeathed to the subsequent. Ongania’s intervention caused mass resignations of professors and more than 300 emigrated. Further, many research teams and institutes were dismantled, and all public universities were deprived of their autonomy (Torre and De-Riz 1993, p. 300).107

We can use Meyer’s notion of inherited public goods to explain some aspects of the wrongness of the actions performed during Ongania’s dictatorship. Relying on such a notion, even if it cannot be claimed that future people will have a right to a good system of education, Onganía’s destruction of the Argentinian university system was wrong. First, this is because respect is owed to the sacrifices made by past generations to pass those goods on to the latter (Meyer 1997, p. 148). Second, as Meyer also asserts, “Typically, we inherit public goods, not as sole beneficiaries but us persons able to share

107 Indeed, universities were one of the main targets of the antiliberal program of the dictatorship: “In July [1966] the public universities were deprived of their autonomy and were placed under the control of the Ministry of the Interior on the grounds that it was necessary to end Marxist infiltration and student unrest (Torre and De Riz 1993, p. 300). 107 and pass on these goods to our descendants” (2001, p. 280). Therefore, in the case we are analyzing, given that the system of education was likely bequeathed with the intention to benefit future generations, the destruction of such a good generally implies the non- fulfillment of duties with respect to future generations as well.

Nothing I have said implies that present generations cannot deny or repudiate collective inheritances. In the same way that we might inherit public goods from past generations, we can also collectively inherit what Meyer (1997) calls public evils (p. 150). According to Meyer, an important feature of public evils is that “the harms that accrue to members of a minority from living under a regime that discriminates against them owing to their race, language, ethnicity or customs are not subject to voluntary control by these people” (Meyer 2001, p. 277). This feature can be exemplified when we look at the consequence of the Conquest of the Desert. Thousands of indigenous persons were killed, harmed, or expelled to Chile or the southern zones of Argentina. Their lands were taken from them and Argentine institutional order was imposed on them. Further, even among those indigenous people who did not suffer such extreme consequences, it was common to send them to factories and companies in the north of the country to be used as cheap labor. The rationale for this policy was that indigenous people would be quickly transformed and able to adopt “valid criteria of civilization” (Levaggi 1990, p. 453). As Meyer (2001) asserts, for situations like these, the impact of such injustices is not eradicated by merely stopping these policies. In his view, past public evils often have a lasting impact on present-day members of a specific society (pp. 277-278).

The injustices committed during the Conquest of the Desert were possible in part because there was a web of moral, legal, and ideological thinking that might still be present today, even if there are no longer military campaigns against the indigenous population.108 These evils collectively inherited by Argentines today are public in the sense that “all members of the society tend to be negatively affected by the bad collective inheritance without normally having much control over the ways in which the degree to which they are going to be affected by this inheritance” (Meyer 2001, p. 278). In Argentina, this can be appreciated if we consider that while survivors of the Conquest of

108 However, it is undoubtedly true that indigenous people continue to be criminalized during specific demonstrations as was highlighted by James Anaya’s report about the situation of indigenous people in Argentina: “In some cases, the protest and the response from the public security forces or from private third parties have led to violence and even the deaths of members of indigenous peoples” (2012, p. 13). For a critical analysis of the performance of the Argentine government concerning, in particular, Mapuce demonstrations, see García-Gualda and Sartino (2020). 108 the Desert were incorporated into the larger society they were regulated to poorest and lower segments (Svampa 2016, p. 45). Furthermore, there are signs for thinking that the legacies of the Conquest of the Desert are still present if we take the main concern of the 2012 Report of the Special Rapporteur on the Rights of Indigenous Peoples on the situation of indigenous peoples in Argentina seriously:

The situation of indigenous peoples in the country with regard to land tenure is a result of the fact that historically they have been dispossessed of large tracts of their land by ranchers and by the operations of farming, oil, and mining companies on lands claimed by indigenous communities. The majority of indigenous communities in the country have not received legal recognition of their lands in line with their traditional ways of using and occupying those lands (Anaya 2012, p. 7). If it is true that past generations bequeathed these public evils to present generations, as seems to be the case, the next question is: What ought be done with them? The answer: Given that these inherited evils have a negative impact on present and future people, as Meyer asserts, “we have good reasons for wanting – and may well be under an obligation – to dispose of the public evils we inherit” (2001, p. 282). If we consider it valuable to live in a just society, or at least in one in which people can pursue autonomous lives, we have the duty to dispose of those public evils that may prevent both the establishment of a just society and that certain segments of the population pursue their lives’ plans. Consider again the Conquest of the Desert and its lasting impact on living people. It follows from the arguments provided above that present-day Argentines have good reasons for disposing of the public evils they have inherited from the past.

Of course, as Meyer (2001) recognizes, one might avoid or reject the duty to dispose of public evils by denying membership in a transgenerational community whose past members bequeathed these public evils to the present members (pp. 283-284). Indeed, in the case of Argentina, some people claim that present-day non-indigenous Argentines have nothing to do with injustices committed in the late 19th century. These people sometimes perceive themselves as descendants of immigrants that arrived later. As I highlighted in the introduction to this chapter, a common phrase among non- indigenous Argentines is to claim that they descend from the ships. For instance, on the occasion of the visit of the Prime Minister of Spain to Argentina in 2021 president Alberto Fernandez asserted, “Mexicans came from the Indians, Brazilians came out of the jungle,

109 but we Argentines came from boats from Europe.”109 Similarly, in the World Economic Forum of Davos in 2018, former President Mauricio Macri asserted, “I think this is a natural association because in South America we are all descendants from Europe.”110 The idea refers to the massive wave of European immigration to Argentina in the late 19th and early 20th century. In 1869, before the Conquest of the Desert, Argentina had a population of 1,830,214 inhabitants (1,736,923 of which were non-indigenous and 93,138 were members of indigenous peoples “beyond the empire of the civilization”).111 By 1914 the population had risen to 7,885,237 (Gallo 1993, p. 84). Between the end of the Conquest of the Desert (1885) and 1914, Argentina received 5,185,288 immigrants (Cortés-Conde 1993, p. 56). In 1914, around 33 percent of the Argentinian population was foreign-born, and another 25 percent were descendants of immigrants (Rock 1993, p. 113).112 In the light of these facts, the idea according to which present-day Argentines have nothing to do with the members of the community that committed the injustices of the late 19th century is not far-fetched at all.113

However, there are two problems with rejecting membership in the group that committed the Conquest of the Desert. First, being a member of a particular society is not something that people chose. Present-day Argentines are connected with past members in part by virtue of sharing a continuous collective memory. Continuous collective memory, it is worth recalling, is to be understood as a chain of overlapping socially articulated and socially maintained shared customs, practices, narratives and institutions.

109 “Alberto Fernandez: Argentine president apologizes for Brazil comments” [BBC, June 10, 2021] https://www.bbc.com/news/world-latin-america-57422758 (Accessed June 10, 2021). Alberto Fernandez’s quote stems from the popular Litto Nebbia’s zamba “Llegamos de los Barcos”. https://www.clarin.com/espectaculos/musica/video-cancion-llegamos-barcos-litto- nebbia_3_fY1ReVwrd.html 110 “Macri comparte en Davos su visión sobre una Argentina global” World Economic Forum (January 25, 2018). The quotation is at minute 41:54 of the recorded interview. https://es.weforum.org/agenda/2018/01/macri-comparte-en-davos-su-vision-sobre-una-argentina-global/ (Accessed July 27th, 2020). 111 As recorded in the official report of the census of 1869. See the official report (De la Fuente 1872, p. XX). The numbers of indigenous persons who inhabited the current Argentinian territory in 1869 stems from the official report of the census of 1895 (De la Fuente 1898, p. XIX). 112 After 1914 the immigration rate was never as high as before. Still, in 1946, 26 percent of the male population was born in Europe (Rock 1993b, p. 173). Further, by 1914, at least 43 percent of the population of every district of Buenos Aires was foreign-born (Gallo 1993, p. 94). It is worth noting that from the 5,917,250 people who entered Argentina between 1871 and 1914, only 3,193,875 settled in the country (Gallo 1993, p. 83). Today, the immigrant population in Argentina is small. According to the last 2010 national population census, 1,805,957 immigrants were living in Argentina , representing 4,5 percent of the population at that time (INDEC 2012, p. 98). 113 It is estimated that 65% of the current Argentinian population have European ancestors. https://chequeado.com/el-explicador/frase-de-fernandez-sobre-mexicanos-brasileros-y-argentinos- equivoco-una-cita-y-los-datos-muestran-que-no-todos-los-argentinos-descienden-de-europeos/ 110

Based on the historical facts highlighted above, we can see how there is a continuous collective memory in the sense of the existence of a socially articulated narrative concerning the origin of the Argentine education system. In this regard, for instance, no one denies, and as far as I know, in Argentine history, no one has denied the important work performed by Domingo F. Sarmiento and the 80 Generation.114 There is in Argentina a clear continuous collective narrative about how the system of education was established in the 19th century. Furthermore, in prominent sectors of Argentine society, there is sometimes a collective narrative in the history of the creation and evolution of the modern state of Argentina that sees indigenous peoples as “internal outsiders” not included in the Argentine us. With roots in Sarmiento’s dichotomy between civilization and barbarism and the ideas of the 80 Generation, this narrative has favored the denial of indigenous people as members of Argentine society (Kropff 2005, pp. 105-108; see also Svampa 2016). Indeed, such an exclusion has been considered “natural” by many generations of Argentine citizens educated under the model of cultural uniformity for more than a century (Salgado 2010, p. 150). Therefore, there seems to be a continued collective memory between present-day non-indigenous mambers of Argentina and those who that belonged to the 80 Generation.

Second, there is a problem of consistency. Suppose people today reject the duties that stem from having inherited a public evil from past generations because they consider themselves members of a different community. In this case, they cannot consistently assert that they were not part of the same community when the very same people bequeathed them public goods. In other words, present-day Argentines cannot simultaneously assert that they are and are not part of the same community as the members of the 80 Generation. If Argentines today claim that they and those who bequeathed them a system of public education are part of the same community, given that the same generation that laid the foundation for such a system is the same generation that pursued the Conquest of the Desert, then present Argentines also must accept that they are part of the community that perpetrated that injustice.

114 Sarmiento symbolizes in Argentina the image of a “good educator” given his efforts in building a strong system of education in Argentina (Gargarella 2010, p. 170). 111

Conclusion

In this chapter, I argued that currently living non-indigenous Argentine citizens have reasons for redressing the lasting impacts of the Conquest of the Desert. Since they are members of a community whose past members bequeathed them public evils, they have reasons for disposing of them. By relying on Lukas Meyer’s notion of collective inheritance, I argued that presently living Argentines have reasons for disposing of those public evils connected with the Conquest of the Desert bequeathed by their predecessors. However, I did not say much about how the duty of disposing of these public evils should be carried out.

Lukas Meyer (2001) asserts that there are several dimensions involved in disposing of public evils. Among other things, it requires (1) ascertaining the truth about the historical injustice, (2) establishing a new public order that ensure that those public evils never occur again, and (3) providing compensation to the “surviving victims of the past injustices as well as those currently living, who as a consequence of the lasting impact of the past public evil, suffer disadvantages today” (2001, p. 282).115

In this chapter, I argued that currently living Argentines can be considered members of the same community as those who bequeathed to them those public evils which harmed indigenous people. This fact is enough for asserting that there is a duty to dispose of inherited public evils in the sense that they ought to, at minimum, (1) recognize the injustices committed during the Conquest of the Desert. Consequently, for ascertaining the truth about the historical injustice, for instance, the banknote with the image of Julio Roca leading the military campaigns should be eliminated.116 For the same

115 In the case of Argentina, these three dimensions of disposing of public evils can be exemplified in looking at how the community intended to overcome the evils that made the last dictatorship possible (1976- 1983). First, during the trials of the Juntas, the research of the National Commission on the Disappearance of Persons (CONADEP), and the further investigations carried out in the following years by Abuelas de Plaza de Mayo, in seeking the identity of babies stolen during the dictatorship, the community intended to secure public acknowledgments to the victims of the injustice. Second, after the return to democracy, a consensus emerged around the idea that violations of human rights “Never Again” (Nunca Más) occur. This is the idea to which, in Nino’s words, “it does not matter how high the end might be, no one is above the law for deciding on the life or death of their equals, as a mean towards such an end (1992, pp. 145-146). Third, Argentina enacted a system of reparations to those who suffered injustices during the last dictatorship. For instance, Laws Nº 24 043, 24 321, 25 914, and 16 564 regulate and grant compensation to those who have close links with those who disappeared and those born in captivity during the dictatorship. 116 The 100 ARS$ banknote with the image of Roca during the Conquest of the Desert was first printed in 1992. http://www.bcra.gov.ar/MediosPago/100_Pesos.asp 112 reason, monuments in public spaces commemorating the Conquest of the Desert should also be removed.

Further, having received these public evils is also a strong reason for disposing of them in order to establish a legitimate political order (2). In the next chapter, I discuss how this task ought to be performed. I consider some reforms to be performed in Argentina so that its institutional system can be legitimate with respect to both indigenous and non-indigenous people.

With respect to claims of compensation (3), in this chapter I argued that many currently living indigenous persons could be considered negatively affected due to the consequences of past injustices. I have argued that even if it is true that many indigenous persons would not have existed had the Conquest of the Desert not being carried out, such a circumstance does not imply that the consequences of such injustices have not harmed them. On the one hand, these persons can be considered harmed if, as a consequence of the Conquest of the Desert, they have a level of well-being that is below a threshold of normatively defined harm. On the other hand, I have also shown that many presently living indigenous persons can have valid claims for compensation for having suffered an additional wrong, namely, that after conception, their parents did not receive compensation for the injustices suffered during their lifetime.

I also explained that presently living indigenous persons might also have claims for compensation in the name of the community or group they belong to. I argued that, although the plaintiffs for collective claims for compensation have to be members of a group that, having suffered historical injustices, have survived or endured into the present, it is not true that they have to belong to the very same group who suffered past injustices. All that is necessary is the existence of a continuous collective memory between the members of the group making claims today and those of the group who suffered past injustices. In Chapter 4, I discuss how collective claims for compensation should be materialized under current circumstances.

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CHAPTER 3 POLITICAL SOVEREIGNTY, ALIENATION, AND THE PRINCIPLE OF PROXIMITY

Introduction

In Chapter 1, I argued that the Conquest of the Desert should be considered a case of historical injustice perpetrated against the indigenous population of Argentina in the late 19th century. I argued that, at that time, indigenous people’s territorial rights were violated, so some form of reparation was owed to them. However, we are no longer in the late 19th century, and many circumstances have changed. In Chapter 2, I argued that presently living non-indigenous Argentines are still responsible for redressing those injustices. Further, I also argued that there are reasons for thinking that many of those indigenous groups or communities that suffered injustices in the past have survived into the present, regardless of the possible changes in their numerical identity.

In this chapter, I consider the first kind of claim indigenous people may have due to the fact that their territorial rights were violated in the past. In particular, I refer to the lasting impacts of the unjust imposition of a legal order on the indigenous survivors of the Conquest of the Desert. My interest in this chapter does not question the justice of different substantive solutions to indigenous claims. The next chapter deals with this issue. Instead, I investigate whether the coercive imposition of possible solutions, whatever they might be, on the currently living members of the indigenous communities who suffered the Conquest of the Desert is justified. In doing this, I explore certain links between the supersession thesis and the idea of political legitimacy. I argue that there are good reasons for supporting the view that the institutions of the Argentine state should have the authority to decide conflicts that occur in its current territory, even if indigenous interests are at stake. However, for the demands of legitimacy to be satisfied concerning indigenous people, specific measures should be implemented with the intention of configuring them as makers of Argentine institutions.117

117 The view advocated in this chapter is a substantial development and extension of the account I endorsed in Truccone-Borgogno (2021). It benefited greatly from the objections I received at the inaugural event of the Argentinian Chapter of the International Society of Public Law (ICON-S). I especially thank Roberto Gargarella for inviting me to present my views there. 114

To support my argument, first relying on Waldron’s reconstruction, I explain the principle of proximity. This principle prescribes the duty to form a state among those who live in the same territory and are likely to be in conflict with each other (Section I). Second, I argue that, even according to this principle, the forcible imposition of the Argentine legal system on the indigenous communities after the Conquest of the Desert was unjust. This is because indigenous populations did not deny the duty to enter a state- like organization. On the contrary, they recognized the general duty but rejected the particular duty to enter the Argentine state (Section II). Third, I emphasize that the supersession of the forcible imposition of the legal order on indigenous communities might have occurred only insofar as we rest on functional theories of legitimacy. According to these theories, the institutional system that provides the best services, in the sense of being (more) capable of providing justice effectively, is legitimate (Sections III and IV). Fourth, I explain that such a functionalist account is too narrow as a theory of legitimacy since it does not consider the aspiration citizens have in being makers of their institutional system. This aspiration in being makers requires that the institutions be ascribed to those to whom they apply. When this is not the case, people are alienated from the institutional system they live under (Section V). Finally, I suggest that indigenous people are not co-makers of the Argentine institutional system since, by being historically oppressed groups, there are still barriers to their involvement in the collective decision- making process. Therefore, I contend that some measures intending to erase those barriers have to be carried out. In this sense, I argue in favor of recognizing some form of internal autonomy and in favor of indigenous people having special representatives to the Argentine Congress. Further, I defend that there is a moral duty not to oppose opening a process intended to carry out those reforms if such a process is promoted by a simple majority of representatives in Congress (Section VI).

Today, this matter is of great practical significance. Take, for instance, the case of the occupation of specific plots in Lake Mascardi National Park in the province of Rio Negro by the Mapuce community Lafken Winkul Mapu. The most recent events started with an occupation of about six hectares in 2017 after the community’s Maci considered the land sacred territory. This appropriation is illegal according to Argentine law.118 Further, many non-indigenous members of Argentine society and public officers claim

118 Articles 181 and 182 of the Argentinian Penal Code regulate the criminal offense of land misappropriation. 115 that these seizures should not be tolerated.119 However, according to the members of that community, those parcels are part of their ancestral Waj Mapu.120 Thus, they claim that such territory should be considered Mapuce territory.121 For them, this is not an illegal occupation since the Argentine government unjustly imposed their institutions over them, and those laws are still illegitimate.

How should we assess that situation? Is it morally justified to rely on Argentine law? Or shall we accept that, at least with respect to indigenous people, the institutions of Argentina have no legitimate authority? This case is one example. There are many others. In most of them, if we ask who will solve or decide over indigenous claims in Argentina, the answer is most likely “the state of Argentina.” Further, to the question under which law disputes are to be solved, again, the answer seems to be “Argentine law.” Therefore, it is crucial to scrutinize if it is morally justified to settle disputes between indigenous and non-indigenous people relying on Argentine institutions.

I. The Principle of Proximity

Among all the possible principles of justification, the principle of proximity seems to be among those that provide the strongest reasons for indigenous claims and issues to

119 For instance, the chief of the ruling Party in the Chamber of Deputies of Argentina asserted concerning the appropriations of lands in Lake Mascardi National Park, “The state has to enforce the law, and if there are people illegally occupying land [the state] has to evict them.” Further, he asserted, it is very likely that we will evaluate the possibility that those who carry out a land take will lose all state benefits such as the universal child allowance or emergency family income. Otherwise, [it seems that] everyone does what they want”. [Perfil, Aug. 31st 2020] Sergio Massa: “Si hay gente tomando tierras, lo que se tiene que hacer es desalojar” https://www.perfil.com/noticias/politica/sergio-massa-si-hay-gente-tomando-tierras-lo-que-se- tiene-que-hacer-es-desalojar.phtml 120 [El Pais, Sep. 1st, 2020] “La tensión entre vecinos y comunidades mapuches reactiva el conflicto por la tierra en la Patagonia argentina” https://elpais.com/sociedad/2020-08-31/la-tension-entre-vecinos-y- comunidades-mapuches-reactiva-el-conflicto-por-la-tierra-en-la-patagonia-argentina.html 121 This appropriation of land obtained public prominence, first, on November 25th, 2017, when Rafael Nahuel, a young Mapuce, was shot in the back by the Argentine security forces during an eviction procedure in the area. Second, on August 28th, 2020, there was a public demonstration of, mainly, non-indigenous people against the appropriations of lands in the National Park as well as against acts of violence perpetrated by members of the Mapuce community. A summary of these events can be seen in the media coverage of several newspapers: [Clarín, Sep. 1st 2020] “Toma de tierras y vecinos asustados que se arman: así es el drama que crece en la Patagonia” https://www.clarin.com/sociedad/toma-tierras-vecinos-asustados-arman- drama-crece-patagonia_0_PckTKRY0z.html; [La Nación, Sep. 2nd 2020] “¿Qué hay detrás de la toma de tierras en Villa Mascardi?” https://www.lanacion.com.ar/sociedad/que-se-esconde-detras-toma-tierras- villa-nid2437923 ; [BBC mundo, Nov. 26th 2017] “Qué hay detrás de la muerte de un Mapuche durante un enfrentamiento con la policía en Argentina” https://www.bbc.com/mundo/noticias-america-latina- 42128873 During revisions of this chapter, the house (Ruca) of this community’s Maci was intentionally burned down. [Prensa Obrera, June 9, 2021] https://prensaobrera.com/libertades-democraticas/bariloche- incendian-la-casa-de-la-guia-espiritual-de-la-comunidad-lafken-winkul- mapu/?fbclid=IwAR1ykBoweXreINa4uF0eKQmtNe0JVq2ZaFwAxHerON9LO6-IPPfAY13TgTM (Accessed June 18th, 2021). 116 be decided by Argentine state. This principle, Kantian in spirit, was developed by Waldron in a series of works in which he discusses issues of political legitimacy and sovereignty (1993; 1996; 1999; 2004b; 2006a; 2006b; 2009; 2010; 2011; 2018). The principle of proximity requires that “states should be formed amongst people who occupy the same territory, whether they have any affinity with one another or not, because they are the ones who are most likely to be in conflict with one another” (Waldron 2011, p. 8).

The justification of this principle begins with the Kantian idea according to which “we are always likely to find ourselves, in the first instance, alongside others we don’t trust, others with whom we share little in the way of culture, mores or religion, others who disagree with us about justice” (Waldron 2004b, pp. 58-59). The fact that, on the one hand, human beings are clustered together in specific regions and, on the other hand, that proximity generates conflicts seems to require a procedure for solving those disputes that may arise. Waldron illustrates this issue by considering how Kant thought about the problem of acquisition of resources:

People who live in one another’s vicinity – in Kant’s phrase ‘unavoidably side-by-side’ – are likely to want to take possession of material resources (land or water, for example) as their individual property. But none of us can do that without coming into conflict with others who may want the very path of land or the very resource of water that we are appropriating, and who might have their own theory about how such thing is appropriately distributed (Waldron 2010, p. 410).

There are two points here. First, disagreements are unavoidable among those who live in close proximity. In the above example, the differences are related to the acquisition of resources. However, Waldron says, that is only one cause of conflict. Disagreements are not restricted to the acquisition of resources or other practical issues. They also extend to moral principles themselves (Waldron 1996, p. 1553). Each person has her view concerning justice and rights, and they likely reach different conclusions concerning how to behave. Moreover, even if all persons share a commitment to the same values, they may have different views on how to specify the principles that stem from them. Further, even if there are right answers concerning, for example, the just appropriation of resources, “there is no basis common to the parties for determining which answers are right” (Waldron 1996, p. 1550).

The example also illustrates a second point. When people disagree, conflict is likely generated. Several reasons, in the Kantian mode of thinking, explain this. Waldron

117

(1996) reminds us that in the state of nature, people may reasonably do whatever they need to promote their interests. In addition, people will fight even if they think that justice and morality are on their side (p. 1553). This is because, first, there is urgency in the appropriation of material resources, and such need seems incompatible with waiting until consensus with others is reached. Second, when people think that justice is on their side, it is likely that they will argue vehemently. Therefore, the probability of having conflicts increases (Waldron 1996, p. 1554).

However, the crucial reason conflict is problematic is concerned with freedom and the use of force. Human beings have an interest in being authors of their own lives. This means that they want to direct their lives according to their own considerations. This aspiration is an expression of the ideal of personal autonomy, which as Raz asserts, “is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives” (Raz 1986, p. 369). Fulfilling this aspiration is possible only if people are independent of each other. This right to independence is, according to Kant, our one innate right (DR, p. 63 [6:238]). However, the problem is that our freely chosen actions may prevent other people from performing freely chosen actions. Therefore, there is a need to identify under what conditions or in which situations it is permissible to affect the right to be independent. There is also disagreement here. The problem, reminds Waldron, is that “if people disagree about which actions wrongfully hinder freedom and which ones do not, then they disagree about the occasions on which force may be used” (1996, p. 1555). Since in the state of nature, there is no mechanism to solve disagreements concerning rights, according to Kant, people would always be in a condition of dependence and unfreedom. Outside of the state, as Anna Stilz (2019) asserts, no one has the exclusive standing for determining and imposing justice (p. 96).

All these previous instances of conflict and disagreement seem to require a way of dealing with them. Even if the contenders of a particular dispute try to proceed in good faith, it is possible that the other contender does not share the personal decision of the former. Furthermore, even if a specific agreement is reached between those who previously disagreed on a certain issue, there is no guarantee that each participant will sustain the deal. As Stilz (2009) emphasizes, each contender is still dependent on the private will of the other, representing, according to Kant, in itself a condition of unfreedom (p. 51). What is needed is an arrangement according to which some decision

118 on the issue will be imposed that represents a detailed reflection on the matter. As Waldron claims, “This is what a state can offer: it can offer a well-thought-through body of law which will be enforced univocally, in a way that does not represent simply a bargaining compromise or a vector of individual forces” (2006b, p. 193).

The state offers the possibility of dealing with disagreements, providing not only a basis for solving them and respecting people’s sense of justice but also “insisting that [the problem of disagreement] must be solved by those among whom it arises” (Waldron 2010, p. 412). Hence, as Kant affirms, not any institutional arrangement has to be formed but only a state the reflects the omnilateral will, that is, the unified will of all (DR, p. 125 [6:314]). It is required, in other words, that we enter civil society and proceed with those with whom we are side-by-side towards a condition of positive law. This is not optional since forming a state frees each person from relying on the will of others. It is a moral duty that we owe to those with whom we are likely to have frequent conflicts (Waldron 1999, pp. 58-59). Therefore, it is something that each contender in a conflict may enforce. To enter the state is something we owe to those with whom we live side-by-side since there is no other way to establish a condition in which each person could be independent of each other, that is, there is no other way of building a situation of equal freedom.122

II. The Principle of Proximity and the Conquest of the Desert

After the Conquest of the Desert, 8,000 families of indigenous people lived in the current territory of southern Argentina, and many of their members were forcibly incorporated into Argentina as Argentine citizens (Quijada 1999, p. 695; 2006, p. 433). According to the principle of proximity, those who live side-by-side must enter a political community where the disagreements and conflicts are solved using positive law and other public institutions. Since after the Conquest of the Desert, indigenous and non-indigenous people had to live side-by-side, and many conflicts and disagreements existed among them, in this view, the opposition of the indigenous people to be part of Argentina seems unjustified. This is to say that indigenous communities seem to have had the duty to enter civil society with the non-indigenous citizens of Argentina. It seems that, in the light of

122 This is why, as argued by Weinstock, “[the state] is a matter of conceptual necessity rather than a coordination problem” (1996, p. 393). 119 the proximity principle, the forced imposition of the Argentine legal system over the indigenous survivors of the Conquest of the Desert was not unjust.123

To be fair, I do not think that the principle of proximity required that, in 1885, indigenous people be subject to the institutions of the Argentine state. First, the members of many indigenous peoples were not stubborn anarchists who do not wish to join the state. Anna Stilz asserts that “to qualify as a ‘state’ […] an institution must feature (i) binding collective rule-setting and (ii) the ability to enforce its determinations in case of disputes” (2019, p. 14). In this conception, it is not accurate to say that the members of indigenous communities adopted the irresponsible posture of not wanting to be part of an institutionalized community. On the contrary, the members of the indigenous groups, on whom Argentine institutions were imposed, had their own processes for solving problems and conflicts. For instance, in the entire Waj Mapu, Mapuce people had institutionalized mechanisms for solving controversies (Kollgtun, Fvta, Trawun, Wepin), institutionalized spaces for carrying them out (Juntas, Gvbamtuwvn, Xaxvn), and even specific agents with the authority of enforcing decisions (Logko, Werken, Maci) (Mariman-Quemado 2006, pp. 65-101).124 On this view, indigenous populations did not deny the duty to enter a state. Instead, they recognized such a duty but rejected the particular duty to enter a specific state: Argentina.

However, it could be objected that the proximity principle required forming a common state since both Argentina and the indigenous peoples had territorial claims over the same land. Therefore, in this jurisdictional controversy, the objection continues, no party was obliged to accept the authority of the other. Instead, they should have formed a common state.

123 Interestingly, Nicolás Avellaneda, president of Argentina when the first two stages of the Conquest of the Desert were carried out and part of the government of Julio Roca during the last stage seems to know Kant’s view on this matter. On occasion of the opening session of the Academy of Jurisprudence in 1859, Avellaneda asserted “The intelligent and free man is born, and when he takes his first step in life, he meets beings that like him are intelligent and free. He needs to respect the freedom of others, because, like his own, others must have a sphere of action [and] objects that he can possess (...) to make his way through this world. (…) Kant has said it: (...) ‘Freedom is always equal to itself. The moment two men meet in life, the Law is born from the contact of their sphere of activity’” (1910, pp. 10-11). Some members of the 37 Generation also had knowledge of Kant’s writings. It is recorded that Juan B. Alberdi, for instance, quoted Kant for first time in Argentina in June 1837 on the occasion of the inauguration of the Salon Literario, which is considered one of the origins of the 37 Generation. On Kant’s reception in Argentina see Dotti (1992). 124 Even Bartolomé Mitre, as I stressed in Chapter 1, seems to have recognized this point when he asserted that “The wild tribes are a great power with respect to us, an independent and ferocious republic within the republic” (Los Debates, [April 29th, 1852]). 120

The response to this objection starts by noting that, until approximately 1885, the indigenous communities I am considering and the Argentine state occupied different territories. As highlighted in Chapter 1, the Zanja de Alsina, the giant trenches whose construction started in 1876 and whose purpose was to contain the indigenous population along what was considered the southern frontier of Argentina, is well-known (Rock 2019, p. 175). Given this territorial separation, it is not clear that in the late 19th century, the indigenous and non-indigenous communities would have had the duty to form a common state. Even if there were conflicts among them, those conflicts were not substantially different from those that existed between Argentina and Chile. Thus, it is plausible to think that both communities could have continued living in permanent separation, each one on opposing sides of the Zanja de Alsina or even on opposite sides of the Negro river. In fact, there was a standing tradition of celebrating treaties between, on the one side, first the Spanish Crown and then different Argentine provinces and, on the other side, different indigenous peoples recognizing the autonomy of the latter.125

The fact that both communities had their principal place of life in separate territories seems to provide reasons in favor of them having had, within each territory, occupancy rights. Occupancy rights over a territory include two incidents: First, the freedom to reside and to make use of the valid practices in a given territory. Second, a claim-right not to be expelled from the territory nor hindered from the enjoyment of the prevailing practices there (Stilz 2019, p. 35). However, occupancy rights do not guarantee the right to expel others unless the foreigners’ incursion into the territory harms the life plans, culture, and local economic practices (Stilz 2019, p. 73). In the absence of such a situation, it is possible that the construction of a common state that includes both indigenous and non-indigenous people would be not only not objectionable but also, in the light of the principle of proximity, required.

125 From the middle of the 18th century, Spain started worrying about the possibility that indigenous people of the south would ally with England so that the latter could expand to the south of the current territory of Argentina and Chile as that there were no Spanish colonies there (Weber 1998, pp. 150-151). As a bulwark, Spain entered into a long tradition of agreements in the south in which the Crown recognized a certain degree of autonomy of the indigenous communities. Maybe the most prominent example is what is the treaty (Parlamento or Gvbamtuwvn) of Quillin of 1641. According to this treaty, the Crown recognized the Mapuce people’s autonomy south of the river Bio-Bio (currently Chilean territory). In exchange, the Mapuce people would help Spain fight its enemies (Weber 1998, pp. 162-163). In the current territory of Argentina, Spain normally required indigenous populations to recognize obedience to royal authorities. Between 1816 and 1852, it was common that, in the agreements between each province and each indigenous people, the latter helped the former in conflicts with other provinces in exchange for different sorts of goods. Also, many of these agreements included clauses according to which indigenous populations recognized to a certain extent the counterpart’s authority (Weber 1998, p. 163; Levaggi, 1995b). 121

Concerning the Conquest of the Desert, the incursion by past members of the Argentine state into territory that, until that time, was occupied by indigenous peoples drastically altered their life plans. For instance, while Julio Roca was president of Argentina, Law Nº 1628 (of 1885) called the Law of Military Prizes was enacted. According to this legislation, those lands previously occupied by indigenous people had to be transferred to the personnel expeditionary to the desert (Bandieri 2000, p. 155). This policy generated a displacement of the indigenous peoples to regions that, until that time, were considered of low agricultural productive value. Due to this injustice and, because the life plans of the members of the indigenous population were radically affected by the Conquest of the Desert, there are reasons to think that indigenous peoples had a right to exclude past members of the Argentine state from their territory.

Nevertheless, it can be objected that, even if such a right to exclude others was justified before the military campaigns, once the Conquest of the Desert was concluded, the forced imposition of the Argentine institutional system on the surviving members of the indigenous peoples was justified. Circumstances changed and after the Conquest of the Desert arranging conflicts case by case via agreements no longer seemed a viable option. As Waldron claims, “the repetitive frequency of the same kind of conflicts indicates the necessity for standing arrangements that can be applied in case after case” (2009, p. 12). Perhaps, it may be helpful to think of a hypothetical situation in which the Argentine state was perfectly just or, at least, nearly-just, and it imposed its institutions on the unwilling members of the indigenous communities.126

Kant repudiated the forced imposition of the institutional order on the members of other peoples with whom there was no prospect of common union (DR, p. 87 [6:266]). Despite Kant, however, one might question whether and under what conditions forcibly incorporating other people into one’s own institutional system is justified.127 One of the conditions seems to be that those to whom the institutional system is to be applied, at

126 The scenario is similar to Simmons’ (2016) thought experiment in which the United States annexes a portion of Mexico and imposes the law of United States on Mexican citizens (p. 56). 127 One might think that if the indigenous institutional systems would not have been of sufficient quality for the right to independence of each of their members to be guaranteed, it is possible that Argentina would not have had the duty to respect indigenous sovereignty. This claim is correct in asserting that a deficient quality in the indigenous institutions could have justified that Argentina would not have had the duty to respect indigenous peoples’ sovereignty. However, from this fact, it does not follow that it would have been permissible to incorporate these indigenous people into the institutions of the intervening state. A more plausible thesis, I think, is to sustain that such an intervention could have been allowed or even required but only to help those indigenous institutions to be able to guarantee the right of independence of the members of that community. On this possibility, see Applbaum (2019, Ch. 4). 122 minimum, should have the chance of participating in the design of the system.128 If this condition is not met, it is difficult to see how such a system can be considered the product of the will of the subjects to which the system will be applied as the proximity principle requires. Therefore, in the case we are analyzing, we should ask whether the members of the indigenous communities who survived the Conquest of the Desert had the chance to participate in designing the Argentine institutional system.

On this point, it is helpful to begin with Article 67, Section 15 of the Argentinian Constitution of 1853 that established among the congressional obligations: “to provide border security; to preserve peaceful treatment with the Indians, and promote their conversion to Catholicism.”129 This section was the result of discussions and arguments between non-indigenous conservatives and liberals that did not consider indigenous points of view on the matter and subordinated indigenous interests to non-indigenous ones. As Carlos Nino (1992) notes, even liberals argued just from the standpoint of non- indigenous persons since the conversion of the Indians to Catholicism was considered the only possible way to reach a peaceful settlement with them (p. 123). There are several points to consider concerning this Section. However, for now, it is enough to highlight that indigenous people did not have the chance to participate in this process.130

The situation is even worse when we consider the specific mode according to which indigenous people were incorporated into Argentine institutions. After the Conquest of the Desert, two views were defended in the parliamentary debate of 1885. One congressman sustained a view, based on the model of the United States, according to which Argentine citizenship should be denied to indigenous people, and they should be relocated on reservations (Quijada 1999, p. 692). However, the point of view that prevailed was the opposite: “The Indians of the Republic of Argentina are citizens because they were born in our territory, by the Constitution and citizenship law.”131 From

128 Charles Beitz (1989) defines interest in recognition as the interest of not being excluded from public roles and from participating in the collective decision-making processes (p. 109). 129 The reforms to the Constitution of 1860, 1866 and 1898 kept Article 67, Section 15. The reform of 1949 removed it. However, it was restored in the reform of 1957 before being removed again in the reform of 1994. 130 Indigenous interests in citizenship were affected in other ways also. Since the content of Article 67, Section 15 not only jeopardized certain fundamental indigenous rights but also subordinated their interests to the non-indigenous ones, indigenous interests in what Beitz (1989) calls equitable treatment (p. 112) were affected. Furthermore, since indigenous points of views were not considered, their interest in deliberative responsibility (Beitz 1989, p. 114) was also infringed. 131 Record of the National Chamber of the Representatives of August 19th and 26th , 1885 (see Quijada 1999, p. 692). 123 a legal point of view, indigenous people were forcibly incorporated into the Argentina as Argentine citizens (Quijada 2006, p. 433).132 However, past members of indigenous communities could not participate in this matter. Therefore, the forced imposition of the Argentine legal system on them was unjust. This conclusion is accurate, even considering the principle of proximity.

III. Sovereignty and the Supersession Thesis

In the previous section, I argued that the forced imposition of the Argentine institutional system over the indigenous survivors of the Conquest of the Desert was unjust. Even in the hypothetical situation in which Argentina would have had a nearly just institutional system, its forced imposition on members of groups who had their own institutions would have been wrong. Therefore, at that time, the solution to this injustice would have been to return to the indigenous groups their right to sovereignty in a way that, within their territory, they could settle conflicts and disagreements according to their own institutions.

At that time indigenous people possibly had a right to unilateral secession from Argentina. One of the most compelling reasons for seceding is that past owners can reappropriate the territory wrongly taken from them (Buchanan 1991, pp. 68-69). At that time, the same people whose territory was unjustly annexed should have had the right to reclaim what was theirs. This conclusion is strengthened if we consider how violent and harmful the Conquest of the Desert was for indigenous people.133 However, it is not 1885 and several circumstances have changed. Many indigenous and non-indigenous persons live in the same cities, neighborhoods, have interests in similar portions of land, and interact with each other in an infinite number of ways.134 Therefore, it should be analyzed whether or not indigenous claims for restoration of sovereignty are still valid.

132 This is not to say that there were no reservations at all, but only that the general policy at that time was to incorporate indigenous survivors as Argentine citizens. On the history and development of different indigenous reservations in Argentina see Aguerre (2008, pp. 54-65). See also Kropff (2005, pp. 106-108). 133 Buchanan also argues that groups are justified “to secede from a state in order to protect its members from extermination by that state itself” (1991, p. 65). For a comprehensive description of how many acts and policies carried out during the Conquest of the Desert can be considered genocide as stated in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 1948, see Delrio, Lenton, Musante, Nagy, Papazian and Perez (2010). 134 Further, the case of annexation we are considering occurred in the late 19th century, which means that it occurred before territorial conquest was clearly prohibited by international law. As Buchanan highlights, it makes sense to treat cases that occurred before and after 1945 (or 1928) differently when the prohibition was declared. In his view, “both stability and the principle of avoidance retroactive laws would speak in favor of some such statute of limitations” (Buchanan 2004, p.357). 124

Sovereignty claims can be understood as demands to rule over a particular territory. In this sense, it means that indigenous institutions should decide all the disputes that take place in their ancestral lands. Thus understood, sovereignty correlates with claims for self-determination.135 Consider, as an example, the Mapuce case. This means that in all the matters occurring in the Puel Mapu (their ancestral territory within the borders of Argentina), indigenous institutions should have the authority to decide. I am thinking of disputes regarding property rights, occupancy rights, or direct disagreements between indigenous and non-indigenous people in all the interactions they may have. Concerning these controversies there is a strong reason for claiming that these disputes should be solved according to the dormant indigenous institutions. The reason stems from the fact that they were unjustly ousted in 1885, and at that time, sovereignty should have been restored.

The issue, however, is that circumstances change over time, and changes in circumstances may supersede historical injustices. The supersession thesis rests on the claim that rights and entitlements are circumstantially sensitive in that they can be justified in circumstances C1 but not in a set of different circumstances C2 (Waldron 2004b, p. 68). Before 1885, indigenous groups were sovereign communities ruled by their own institutions. With circumstances C1 present at time T1 as asserted above, the right response to the forced imposition of the Argentine legal order was to restore the validity of those indigenous institutions. Even unilateral secession would have been justified at that time. This is the correct response at T1 with circumstances C1. However, at T2, that is, between 1885 and 2021, circumstances have changed to C2. Therefore, it has to be assessed whether in 2021, that is, at time T3, under current circumstances C2, indigenous institutions have to be restored. This would be the case if the injustice is not superseded. Thus, disagreements and conflicts that take place in their territory should be solved by indigenous institutions. Instead, if the injustice was superseded, such a right to sovereignty over their ancestral territory should not be restored, and the decisions taken by the Argentine institutions with respect to the members of indigenous peoples might be legitimate.

135 Sovereignty claims can also be understood as demands for autonomy, that is, as demands for ruling exclusively over certain persons and internal affairs. In Section VI, I will provide some remarks concerning this second sense of sovereignty. 125

IV. The Supersession of Indigenous Claims for Sovereignty

There are, I think, two ways of denying that the disputes have to be solved by dormant indigenous institutions. The first is by claiming that those groups whose members were forcibly incorporated as Argentine citizens as a consequence of the Conquest of the Desert no longer exist. If they no longer exist, it makes no sense to claim that the disputes have to be solved using the institutional scheme of some non-existent entity. I will not make considerations about this possibility here. As I argued in the last chapter, many groups or communities who suffered the Conquest of the Desert are still alive.

The second possibility assumes that groups or communities whose members suffered an illegitimate imposition of a legal order in 1885 continue to exist in the present. However, it cast doubts on the fact that such endurance over time is sufficient for their suspended institutional system to be restored. That is, assuming that those communities who suffered injustices in the past continue to exist in the present, is it reasonable to claim that the disputes have to be solved by dormant indigenous institutions? Or, shall they be addressed by the institutions of the Argentine state?

There are two issues here. First, we face a situation where two different institutional systems purport to solve the same conflicts in the same territory. Therefore, the question is whether there is any reason for choosing between the two. The second issue arises if the answer to the first question is affirmative. How can we decide which of the two competing institutional systems should have the authority to decide over indigenous claims?

Let’s start by responding to the first question. There are at least two reasons for choosing between two institutional systems that intend to have the authority in the same territory and over the same issue. The first reason is related to coordination problems. It is a reason for efficiency that applies even if both systems act upon the same principles of justice since they might choose different policies for achieving the same results (Waldron 1993, pp. 23-24). The second reason is directly connected, as Waldron says, with the reasons why – according to the Kantian principle of proximity – people have the duty to enter civil society. To form a state and proceed to the condition of positive law is a means for solving and avoiding disagreements and conflicts. Waldron says that “the moral interest in reducing such fighting provides a reason for all of us to join and support

126 the same organization and that gives each of us a reason to join and support whatever organization others are joining and supporting” (1993, p. 23). If we would not join the same state, and different institutions have the authority to decide on the same dispute, the disagreements, and conflicts that gave us reasons for forming the state re-emerge. For this reason, if two or more systems have competence over the same territory and concerning the same issue, it is harder to claim that people would be living in a condition of freedom. In such a situation, asserting that people can be authors of their own lives is more challenging. Therefore, it would be better to have just one institutional system in each territory with competence on the same kind of issue.

Having said that, how can we decide between two (or more) competing institutional systems that intend to decide over the same issue? The following paragraph from Waldron summarizes his position:

If a pair of rival institutional systems, L1 and L2, in a territory T are such that most of the people of T would clearly agree to be governed by L1 rather than by L2 if they were asked, and if almost everyone in T knows this about the two systems, then it seems that L1 is clearly the salient choice as the system to which allegiance is owed on the grounds of justice, if such allegiance is owed to any institutional system [emphasis in the original] (Waldron 1993, p. 26,).

This argument seems to rest on the idea of consent, which is strange for a scholar like Waldron, who argues against transactional approaches to legitimacy. However, in his argument, he explains that consent is just a way of assessing the effectiveness of a particular institutional system. For him, “the sheer existence of an institution as dominant and unchallenged may suffice to establish its salience, whether it is popularly supported or not” (Waldron 1993, p. 25). Consent, in his argument, is just one of way by which the salience of a specific system may be identified. For Waldron, the response to the question of which system should be used relies on the analysis of which of the competing systems best serves the interests of those to whom it applies. He sees sovereignty, state, and law as a fire brigade. “If its services are made available to all, it doesn’t matter whose fire brigade it is, or whose traditions its matches, or who set it up or how; what matters is that we have it and it works” [emphasis in the original] (Waldron 2006a, p. 24).136

136 The metaphor of the fire brigade is not entirely accurate. The function of a fire brigade is like that of humanitarian aid. Both serve as a safety nets for dire situations. In contrast, institutional systems must not only to save people from serious threats but also provide public goods and create conditions for each citizen 127

Let us reconsider indigenous claims in Argentina. In order to know which system should solve conflicts, disputes, and disagreements, we should analyze which of the two competing systems provides the best services in the sense of being able of providing justice more effectively. This is a complicated question since the indigenous institutional system is not in place. The Argentine institutional system has ousted it. Therefore, it is difficult to make the required comparison. However, there is a fact that seems to speak in favor of relying on the Argentine institutional system. The complexity of current society and the number of disputes and interactions between indigenous and non-indigenous people now requires, unlike in 1885, a common and sophisticated institutional framework for conflict solution. The institutions of the Argentine state have shown to be relatively capable of performing such tasks. In fact, even if mainly for strategic reasons, many members of indigenous communities resort to the institutions of the Argentine state not only in seeking the enjoyment of public goods but also in bringing land and other claims before the court.137 As in other states, Argentine institutions developed with the disagreements and conflicts they had to address, and they are more or less capable of dealing with the challenges of the modern world. Argentina has an institutional system that in general protects basic human rights, minimally respects the demands of distributive justice, and provides in a relatively adequate manner various public goods.138

These considerations do not apply to ousted indigenous institutional systems. Since indigenous institutional systems are “suspended,” they have not had the chance to develop, at least not as a general system capable of being applicable to the entire population living within the borders of the Puel Mapu within the current territory of Argentina.139 Of course, one of the reasons why indigenous institutional systems did not

to be the author of their own lives. However, even if the metaphor is not entirely accurate, the question of which system best serves the interests of those who apply is relevant. 137 But for somel exceptions such as the appropriation of part of the Lake Mascardi National Park, claims and disputes are made under the institutions of the Argentine state. See, Ramos and Delrio (2005, pp. 73- 107). 138 This seems to rule out the possibility of unilateral secession because of serious violations of human rights. In Buchanan’s view “When the only alternative to continuing to suffer these injustices is secession, the right of the victims to defend themselves voids the state’s claim to the territory and this makes it morally permissible for them to join together to secede” (2004, p. 354). If the state of Argentina protects human rights, then this reason for seceding does not apply. 139 This is not to say that Mapuce institutions do not have validity at all. Since at least 1990 Mapuce people have been reconstructing their traditional institutional system (Az Ka Nor Mogen), which is the basis for the proposals for the institutional reform they pose to the Argentine government (Piciñam, et al. 2010, p. 19). For instance, they have asked for the recognition by the province of Neuquén of a forum for creating norms applicable to the Mapuce people (Meli Wixan Mapu), and an instance of Mapuce adjudication of conflicts (Nor Felleal). Mapuce people do not ask to be a separate and sovereign state but for certain degree of autonomy (Piciñam, et al. 2010, p. 20). I will say more about Mapuce autonomy claims in Section VI. 128 develop over time in the way the Argentine system did is owed to the very same injustice of having been ousted by force. Nevertheless, this point is not an obstacle for claiming that the past injustice was superseded. As expressed by Waldron, “the change of circumstances referred to in supersession thesis may include changes that are the immediate causal product of the very injustice originally complained of” (2004a, p. 243). This is because justice depends on circumstances, and present circumstances are such that the Argentine system provides better services to the majority of the population. Hence, although it might be only for its current effectiveness, the institutional system of Argentina functions better than the suspended indigenous ones. Therefore, in this view, the former is to be preferred.

According to this view, if the Argentine institutional system is to be preferred for solving the disputes between indigenous and non-indigenous people or between indigenous people and the state itself, the injustice concerning the forced imposition of the Argentine institutional order after the Conquest of the Desert on the surviving members of the indigenous peoples was superseded.

V. Freedom, Alienation, and Partial Supersession

The last section reconstructs Waldron’s view that the institutional system that provides the best services, in the sense of being capable of providing justice more effectively, is legitimate. For Waldron, there is no such a thing as somebody’s law. We should regard “[law] in the light of a functional apparatus that is just there and available in a territory, not to the possession or patrimony of any particular person or people” [emphasis in the original] (Waldron 2006a, p. 24). This functional account is compatible with forced impositions of institutional systems over people. Waldron recognizes this point. However, he does not think that the problem is severe. He asserts that the relevance of justice and the need for a political institution for pursuing justice are enough for claiming that a particular organization can impose itself on a certain territory (Waldron 1993, p. 27). History, according to him, does not have great significance. All that matters is that the system provides the conditions for people to be able to be the authors of their own lives. As long as there is a system that works, the existence of an institutional arrangement that applies to all is justified.

I accept, as Waldron argues, that since proximity generates conflicts, people cannot choose to be part of the state. Therefore, that someone did not consent to the legal

129 order applicable to her is in itself of little relevance for issues of legitimacy. However, from the fact that consent is not necessary for legitimacy, it does not follow that the only thing that matters is how the system functions. In this dispute between natural duty versus transactional theories of legitimacy, Waldron (2018) criticizes transactional theories, such as Simmons’140 for neglecting the plausibility of the intuitions that underline the structural-functionalist approach (p. 549). Waldron’s position, I think, ignores the plausibility of the intuitions that underline transactional-historical accounts on legitimacy. Functional accounts cannot capture the two relevant dimensions involved in the notion of political legitimacy. For an institutional system to be legitimate is not enough to provide the best services to its citizens; it is also necessary that the institutions be the product of those to whom they apply. If this is not the case, as I explain below, it is hard to see how their aspiration to be the authors of their own lives can be fulfilled.

One way of addressing both kinds of considerations is by distinguishing, as Anna Stilz does, between the takers and the makers dimension of citizenship. “As institutional ‘takers,’ individuals have interests in the protection of their rights, distributive justice, or public goods that the state provides” (Stilz 2016, p. 100). This is the dimension of the institutional system that Waldron focuses on when he claims that we should prefer the system that best serves the interests of those to whom it applies. This is the takers dimension that functional theories of legitimacy accommodate correctly. Nevertheless, Stilz’s perspective also incorporates the makers dimension of citizenship. This second dimension refers to the interest citizens have in creating or being co-authors of the institutional system they live under (Stilz 2015, p. 8). This interest in being makers of the institutional system requires that the institutions be attributable to those to whom they apply. When this is not the case, the individual interest as makers is not satisfied, and people are alienated from the institutional system.141

There are several reasons to place value on ensuring that institutional systems are citizens’ own creations to avoid alienation. One of the most important is related to the notion of personal autonomy. As explained in Section I, people aspire to lead their lives according to their own decisions, that is to be authors of their own lives. The issue is that

140 He refers to Simmons (2016). 141 Institutional alienation implies that the person is disconnected or disrupted in her connection with the institutions she lives under. It is a form of what Lu (2017) calls structural alienation (pp. 188-189). As Lu highlights, this kind of alienation is characterized by alienation from an institutional system (formal in this case) that is capable of defining agents’ rights, options, and status and can mediate their interactions with other agents. 130 threats to these aspirations can come not only as a result of other individuals’ decisions but also because of the state’s actions.

Problem arise when citizens do not see their institutions as their own creation. In such a case, every decision or state of affairs that is coercively imposed on people using the law is alien to the individual to whom it applies. The problem is not so much the range of available options, or whether they are good or bad. For being authors of our own lives within the state, it is not sufficient to have an adequate range of good options upon which we can plan our lives. For being autonomous, we also have to be co-makers of the rules that contribute to creating the state of affairs upon which we frame and organize our lives. Since the institutional system is coercive, and this coercion affects people’s options, for citizens to be authors of their own lives, they must also be makers of the institutional system they live under. When this is not the case then the institutional system does not respect the fundamental aspiration of everyone in being the author of their own life.142

When citizens see themselves as creators of the institutional system then, as Stilz expresses, the collective project matters to them “in a way that connects the success of the joint enterprise to their personal well-being” (2016, p. 113) and, more importantly, it changes the relationship between citizens and the institutional system. In such a case, the state of affairs or decisions that citizens have to undergo due to the state’s action is no longer viewed as hostile or as coercive constraints. As Stilz claims, “the state is no longer an overwhelming, alien power, but rather a tool that allows her more effectively to carry out commitments that are her own” (2019, p. 107). For these reasons, the interest of each person in being makers of the institutional system is relevant. Only when this interest is satisfied, does the alienation between citizens and the institutions that apply to them cease to exist.

However, what does make someone a maker of the institutional system? First, people should have the possibility of having access to public roles and be recognized as

142 For these reasons, the makers dimension of citizenship should not be understood as an instance of minimal justice (takers dimension). Living in a state of affairs in which I am autonomous in the sense of organizing my life plan is not the same as being the co-creator of such a state of affairs. Furthermore, the makers dimension of citizenship should not be understood as a standard of legitimacy within the context of pure functionalists or instrumentalists accounts of legitimacy. In my view, it is not that a state is legitimate according to the criterion of, for instance, minimal justice and we assess whether we arrive at a state of minimal justice by considering whether citizens interest in being makers has been satisfied. If that were the case, the position would be a version of what Mathias Brinkman (2018) calls indirect instrumentalism (p. 18). Instead, the makers dimension of citizenship is at the same level of the takers one, both being criteria of legitimacy. 131 relevant actors in public deliberation.143 In the most extreme case, people are alienated from the institutional system when they are formally excluded from accessing public roles. However alienation also occurs when in a particular society a belief in the inferiority of a specific group of people exists, and institutions establish or reinforce certain understanding according to which the interests of some people deserve less concern than the interests of others just because they belong to a specific community or group (Seleme 2011, p 307). In these situations, it would be strange to claim that the institutional decisions can be ascribed to those that cannot access or that face severe obstacles in participating in collective decision-making processes.144

Second, to be considered makers of the institutions they live under, citizens wish that their judgments be regarded as the most reasonable ones and not just expressions of prejudice.145 If institutions are not sensitive to certain citizens’ interests and points of view, these citizens are alienated from the institutions (Seleme 2011, p 307). In the case of Argentina, for indigenous people’s interest in being makers not to be infringed on, deliberation should not be limited by excluding indigenous points of view that may gain support if they were exposed to the larger society.

According to the previous considerations, for an institutional system to be legitimate, it has to satisfy the interest people have as both takers and makers. Interests as takers are satisfied when the state is minimally just. Instead, interests as makers are satisfied when the institutions are not alien to those to whom they apply. Therefore, to claim that the injustice of forced imposition of the Argentine legal order on indigenous populations following the Conquest of the Desert was superseded requires satisfying indigenous interests not only as takers but also as makers of that institutional system.

Concerning this matter, it is doubtful that indigenous interests as makers were satisfied. After indigenous people were incorporated as Argentine citizens but before 1920, their opinions were rarely considered in public debates, and their interests were subordinate to those of the broader population. Between 1920 and 1930 recognition of the historical injustices perpetrated against indigenous populations began. However, the

143 This is what Beitz (1989) calls interest in recognition (p. 113). 144 In my conception the makers dimension of citizenship is sufficientarian in nature. I agree with Hugo Seleme that “[Citizens] are also interested in making certain that the role they fill in the collective decision- making process does not reflect a social belief regarding inferiority. Nevertheless, this is compatible with not having equal access to public roles or to an equal standing in the collective decision-making process” (2011, p. 308). 145 This is part of what Beitz (1989) calls interest in deliberative responsibility (114). 132 way of redressing such injustices was paternalistic and did not consider indigenous points of view. It was only after 1966 and, with more strength, after the return of democracy in 1983 that indigenous groups first began forming networks that aimed to transcend and publicly participate in the enunciation and discussion on indigenous issues in Argentina (Lenton 2010, p. 72). Despite progress, many members of indigenous communities still claim that they are not being consulted in the Argentine decision-making process on issues that concern their ancestral territory or forms of organization (Svampa 2016, p. 357). This is so even though Argentina is required by the Constitution to consult indigenous people before carrying out projects or measures in the lands they occupy.146

The need for the fulfillment of this requirement in implementing policies or laws that can affect indigenous people’s interests was explicitly recognized by the National Supreme Court of Justice in a recent decision of April 8th, 2021.147 However, the way in which the court recognized the requirement of prior consultation with indigenous people might also be understood as an infringement of the indigenous people’s interest in being makers of the institutional system they live under. In this case, the Supreme Court decided that the province of Neuquén violated the right to prior consultation and participation of three indigenous communities when the province created the municipality of Villa Pehuenia in the lands inhabited by these communities.148

However, the issue is that the Supreme Court accepted the continued existence of the municipality. This was not based on the fact that the creation of the municipality was legal. On the contrary, it was suggested that the law by which the municipality was created is unconstitutional and that an injustice had been committed against indigenous communities. The decision for favoring the perpetuation of the municipality arose from a consideration of current circumstances. The Court claimed that the municipality had been in operation for a long time and that its authorities had entered into various legal acts that affect many people. Therefore, this change in circumstances and not the absence of injustice justified the municipality’s continuation.

146 This is regulated in Article 75, Section 17 and Section 22 of the National Constitution, and in Articles 6, 7, and 15 of the International Labor Organization’s (ILO) Convention Nº 169 incorporated in the Argentine legal system with constitutional hierarchy. 147 “CSJ 1490/2011 (47-c)/CS1 Comunidad Mapuce Catalán y Confederación Indígena Neuquina c/Provincia de Neuquén s/ acción de incostituionalidad”. 148 The municipality was created by provincial Law of Neuquén Nº 2 439 of 2003. 133

The problem with decisions like this, regarding the makers’ dimension of citizenship, is that accepting the municipality’s continuation based on how circumstances are now generates a perverse incentive to continue taking measures that affect indigenous peoples without fulfilling the constitutional demand of prior consultation. Thus, the state continues to implement policies that affect indigenous people without considering their points of view and without allowing them to participate in the decision-making process.149

According to this description, the situation of indigenous communities in Argentina, in particular Mapuce communities, can be considered cases of what Stilz (2015) calls warranted failures of subjective legitimacy, in which the interests as makers of a particular group are persistently not realized as a result of a history of oppressive political relationships (p. 20). Mapuce people in Argentina have never had the chance to exercise full citizenship (Garcia-Gualda 2021, pp. 136-137). In these situations, their claims for their suspended institutional system to be restored may still be strong. The problem is that although the Argentine institutional system might minimally satisfy the interests indigenous and non-indigenous people have as takers, it does not respond adequately to the interest of the members of indigenous groups have as its makers.

If the previous considerations are correct, it is possible that the past forced imposition of the Argentine legal system on indigenous populations is not superseded, even if their interests as takers are satisfied. This does not imply that indigenous sovereignty has to be restored. It might be a case of what Meyer and Waligore (2016) call partial supersession. Partial supersession means that it might be unjust to go back to the state prior to the injustice. However, this does not imply that the effects of the historical injustice are completely annulled. There might still be morally relevant effects of the historical injustice that still need to be addressed. Partial supersession occurs when although there is no duty to return to the situation just before the original injustice, “historical claims still have some weight” (Meyer and Waligore 2016, p. 11). Therefore, it may be true that the state of Argentina does not have the duty to restore the indigenous communities’ suspended sovereignty. This would be so, as I explained in Section IV, since the complexity of the current society and the number of conflicts and interactions

149 It is fair to note that the Court demanded that certain measures be taken in reparation for the injustice such as the creation of permanent dialogue forums between the province of Neuquén and the indigenous communities so that the later can take part actively in the policies and decisions of the municipality. However, discussion of the validity and functioning of the municipality (or its annulment) is not something that the Court has enabled in the dialogue forums, only how the municipality is going to design and execute its policies. 134 between indigenous and non-indigenous people requires a common institutional framework. If the contest is between two competing systems, namely the valid Argentine and the indigenous one, and the Argentine system has been shown more capable of protecting basic human rights, satisfy certain demands of distributive justice, and providing public goods to the vast majority of the population, then the valid Argentine system has to be preferred. Therefore, under current conditions, it would be unjust to return to the state of affairs prior to the Conquest of the Desert.

However, the supersession of the historical injustice is only partial. This means that some effects of the historical injustice of the forcible imposition of the institutional system over indigenous populations still need to be addressed. Argentina still has to accommodate the interests the members of indigenous communities have as makers of the institutional system. For this, it is not required that indigenous people feel, for lack of a better word, that they are makers of such a system. All that is necessary is that such a system configure them as such. As Hugo Seleme asserts, “Citizens are not authors of the institutional design because they configure it but rather it is the institutional design that configures them as authors when it satisfies the interests they have as such” (2011, p. 305). In this sense, for the interest of being makers of the institutional system to be satisfied it is necessary that the institutions treat the members of the indigenous peoples as such. Therefore, it has to be analyzed how it is possible to configure the members of the indigenous peoples with a long history of oppression as makers of the institutional system of Argentina.

VI. Interests in Citizenship and Measures of Reconciliation

As a starting point for analyzing how an institutional system may satisfy both taker and maker citizenship interests concerning the members of historically oppressed groups, I will briefly consider one aspect of the Argentinian Constitutional Reform of 1994.150 Before 1994, the validity of Article 67 Section 15 (referred to previously)

150 This example is helpful to show how, on one occasion, indigenous interests of citizenship might have been partially satisfied. By itself, the Argentinian Constitution cannot show how and how much the interests of citizenship of the members of a certain group of people are respected. However, it helps identify the direction institutional and legal reforms have to take if they seek to respect the interests of citizenship of different indigenous communities. For a complete picture, we should assess other legal provisions, public policies, and practices concerning how indigenous interests in citizenship are addressed. At the federal level, Argentina enacted Laws Nº 23 303 of 1985 (Indigenous policy and creation of the National Institute of Indigenous Issues); Nº 24 071 of 1992 (Adoption of the ILO convention 169); Nº 25 517 of 2001 (Restitution of mortal remainders of indigenous communities); Nº 26 160 of 2006 (Emergency in matters of possession and property of indigenous lands); Nº 26 331 of 2007 (It establishes, among other measures, 135 contributed not only to the subordination of the interests of members of indigenous communities to those of non-indigenous people but also to the institutional alienation of the former. The original Section 15, it is worth recalling, established as congressional powers and responsibilities “to provide border security; to preserve peaceful treatment with the Indians, and promote their conversion to Catholicism.”

Article 67 Section 15 was amended in 1994 to the current Article 75 Section 17, which stipulates the following powers and duties of Congress:

To recognize the ethnic and cultural pre-existence of indigenous peoples of Argentina. To guarantee respect for the identity and the right to bilingual and intercultural education; to recognize the legal capacity of their communities, and the communal possession and ownership of the lands they traditionally occupy, and to regulate the granting of other lands adequate and sufficient for human development; none of them shall be sold, transmitted or subject to liens or attachments. To guarantee their participation in issues related to their natural resources and in other interests affecting them. The provinces may jointly exercise these powers.

The current Article 75 Section 17 is more beneficial for indigenous peoples than the old Article 67 Section 15. This is, of course, relevant. It matters that the new provision recognizes minimal rights relevant to indigenous peoples and, in that way, it better satisfies the interests indigenous people have as takers. However, this is not the point I want to refer to here. A significant change rests on the fact that, unlike the earlier constitutional provision, the new one resulted from considering indigenous’ points of view on the matter. Further, during the Constitutional Convention of 1994, indigenous opinions were considered, and many representatives of different indigenous communities could express their voices.151 However, having a decision-making process with those features is still insufficient. For satisfying the interest of members of indigenous communities in being makers of the institutional system they live under it is not enough that they are not formally excluded from having access to public roles and from the

that indigenous communities should be consulted for the use of the lands they occupy in the case of native forests); Nº 26 994 of 2014 (National Commercial and Civil Code: Article 18 on the indigenous communal or collective property). Contrary to the process of constitutional reform, the process in which the communal property was included in the civil and commercial code is regarded as an instance of how to infringe rather than promote the possibility that indigenous peoples being makers of the Argentine state’s institutions. On this later issue, see Sterpin (2018). 151 Record of the sessions of the Constituent Convention of 1994 (Commission of New Rights and Guarantees –Meeting 29/3/10, August 11th, 4065-4067). 136 decision-making procedures. If that were the case, the Constitutional Reform of 1994 would imply that both kinds of interest in citizenship were satisfied.

The problem arises as follows. As long as the indigenous interest in being makers of the institutional system is not satisfied, Argentine institutions are alien to them. For such an interest to be satisfied, there should be no barriers limiting the possibility for indigenous people to participate in the collective decision-making process. However, because of the history of oppression, indigenous people have no reason to trust others creating a strong informal barrier. As Timothy Waligore states, “When a group has unjustly denied another group secure enjoyment of rights in the past, it can be reasonable (or not unreasonable) for the successors to the victims to be a way of the extensive contact with the successors to the oppressors” (2009, p. 34). This lack of trust is, indeed, a strong informal barrier that prevents or, at least, makes more difficult the involvement of indigenous people in the collective decision-making process of Argentina.152 Therefore, the Argentine government has to eliminate these barriers if it intends to configure indigenous people as makers of the institutional system.

Since the barrier that hinders the members of the indigenous communities from being makers of the Argentine institutional system stems from a lack of trust, the specific measures to be taken should promote trust.153 The first measure for encouraging minimal social trust between indigenous and non-indigenous people in Argentina is to recognize that indigenous populations have certain forms of autonomy or self-government understood as their right to rule over their internal affairs. This measure is of utmost relevance since most Mapuce people consider having autonomy (Kizu Gvnewvn) one of their central claims within the context of a plurinational state. As the Mapuce Confederation of Neuquén asserts “this does not imply secession or disappearance of the state, but the structural transformation of the state based on an equal and respectful

152 Although states are formed among those who disagree and are more likely to enter into conflict, a minimum level of trust among citizens is needed. This minimal social trust, as Weinstock defines it, “simply presupposes that the members of the various groups do not perceive citizens who are members of different groups as posing threats to the interests that distinguish them as members of specific groups” (2001, p. 80). 153 The measures I propose would probably require changes in what is called the organic part of the Argentine Constitution. As explained by Gargarella (2013), at least in the Latin-American context, much of the problem of the recent constitutional reforms concerning the “indigenous question” stems from unattended tensions between expanding certain specific rights (in the dogmatic part of the constitutions) and keeping concentrated and untouched the part referring to the organization of power (pp. 179-185). As he claims, “It seems necessary, then, for those who are sincerely committed to the promotion of changes favorable to popular political participation and social inclusion (in this case, of indigenous groups), to pay particular attention to what is done and what is not done in relation to the organic Section of the Constitution” (Gargarella 2013, p. 184). 137 relationship between different peoples and cultures. … It requires the recognition of the public character of the representative Mapuce’s institutions” (Piciñam et al. 2010, p. 52- 53).154

I want to proceed carefully here. As Waldron noted, there are two claims involved in the identity-based argument for self-government. The first (a) is that certain specificities of a given culture are highly relevant for individual well-being. The second (b) is the assertion that, when a given culture has that relevance for the personal well- being of its members, it is required to have a significant degree of political control over the group’s issues (Waldron 2010, p. 401).155 Claim (a) is undeniable. As Meyer highlights, “people may value their membership in a community as an end on account of the unique opportunities that the community offers to them” (2001, p. 271). The group is instrumentally relevant for its members’ well-being, but also group members may give intrinsic value to it. For instance, they can give intrinsic value to living in a just or tolerating society, and concurrently they can consider that living in a just or tolerating society contributes to promoting other values such as stability (Meyer 2001, p. 270).

Nevertheless, the issue is whether or not an interest in maintaining the well-being of society to the highest extent possible may ground claims for self-government (b). Suppose a particular institutional system can maintain the well-being of different groups, their valuable intrinsic features, and their members can effectively participate in the collective decision-making process. In this case, it might be harder to justify that groups should have the possibility of forming a new (separate) political unit, at least in light of the proximity principle.

However, even so, there are good reasons for groups to have certain control over group issues. The first reason is that even if the state satisfies minimal demands of distributive justice, it might still adopt a form of cooperation that systematically discriminates against some groups. Allen Buchanan asserts that the state might engage in “discriminatory redistribution: implementing taxation schemes or regulatory policies or economic programs that systematically work to the disadvantage of some groups, while

154 When I refer to Mapuce claims I mainly consider the demands of the Mapuce Confederation of Neuquén. There are more than 100,000 Mapuce people organized in, at least, 57 Lof that are part of the Mapuce Confederation of Neuquén (Piciñam, et al. 2010, p. 15). 155 Margalit and Raz (1990) provide an instrumental justification for national-identity-based claims for self- government. Under certain conditions, they argue, the right to self-government grounds claims for self- determination over a specific territory (pp. 454-461). 138 benefiting others, in morally arbitrary ways” [emphasis in the original] (Buchanan 1991, p. 40). This problem of discriminatory redistribution is not completely avoided, even if the state institutions are arranged to the advantage of the worse off or by supplementing distributive schemes with a decent minimum (Buchanan 1991, p. 43). Even so, it might be difficult to discern if a discriminatory distribution has occurred. Even if institutions, for instance, are arranged to the advantage of worse-off, policies might affect groups differently without a sound moral justification. This is so even if there is no violation in the process by which the policies are put into function (Buchanan 1991, pp. 43-44).

In Argentina, this can be exemplified if we consider how the state usually favors the distribution of land toward non-indigenous people instead of indigenous people. This is particularly evident with respect to those areas considered central to developing tourism (García-Gualda 2017, pp. 160-208) and areas rich in natural resources (García-Gualda 2017, pp. 210-258). However, as Buchanan (1991) asserts, this does not give right to secession unless the victims have no other resource to avoid injustice (pp. 44-45). One of these other resources could be to have internal autonomy with respect to issues that the group, in our case the Mapuce people, consider relevant for maintaining their own well- being.156

A second reason is that if certain specificities of a given culture are of significant relevance for the individual well-being of the group’s members, then this means that the group’s members rely on those specificities for framing their life plans. In this sense, Andreas Føllesdal asserts that “being part of cultures is important due to individuals’ interest in forecasting their future correctly, forming legitimate expectations and being assured that others honor important and good faith expectations” (2004, pp. 344-345). For instance, Mapuce people frame their life plans based on the notion of Kvme Felen, which is understood as being part of the territory (Waj Mapu) and being in equilibrium with oneself and other entities or powers (Newen) (Piciñam et al. 2010, p. 12). They rely on this communal understanding for framing their life plans. In particular, their expectations concerning their life plans are shaped by this communal way of living in

156 This seems to be accepted by Buchanan in a later work where he claims that for such cases an initial response to the problem could be “Create an intrastate autonomy arrangement that gives the minority more influence over the fundamental issues in question” (2004, 362). This intra-state autonomy is a good solution for the Mapuce people as they do not ask for secession but for autonomy within a multinational state. 139 which the distinction between nature and society does not exist (Piciñam et al., 2010, p. 12).

For cases like this, Føllesdal asserts, “Satisfying legitimate expectations is an important interest, and stable social institutions and culture are crucial for making and pursuing life plans” (2004, p. 345). If Mapuce people can no longer live according to the notion of Kvme Felen because the state makes them live according to institutions incompatible with such understanding, then their legitimate expectation in forming their life plans based upon those specificities that are relevant for their well-being might be frustrated. Situations like that in which the province of Neuquén created the municipality of Villa Pehuenia where different Mapuce communities were living seems to be a case of this kind since they had to start living according to rules and institutions that do not correspond and are not fully compatible with their own (Piciñam et al. 2010, p. 52).157

To avoid changes that frustrate indigenous people’s legitimate expectations, as Føllesdal (2004) argues, group members should control the cultural changes that affect them (p. 345). In his view, “Our interest in forming correct expectations supports claims to be able to regulate the speed and direction of cultural change, insofar as alternative allocations of such authority poses avoidable risks” (Føllesdal 2004, pp. 345). Suppose Mapuce people, for example those living in what today is Villa Pehuenia, would have been able to regulate and organize their lives in that territory. In that case, the frustration of their legitimate expectation in living according to Kvme Felen could have been avoided.

In the case of groups who suffered a long history of oppression, there is a further reason they should have autonomy. In the case of Argentina, its current institutional system was not only unable to satisfy or protect the options that are valuable for indigenous peoples but also had barriers for their active involvement in state institutions. In situations like this, there are further reasons for historically oppressed groups to have a certain degree of self-government. Such measures would allow indigenous people to maintain and control the change of those features they consider valuable for framing their

157 The Mapuce Confederation of Neuquén asserts that “to exercise autonomy requires … the transformation of the current municipalities constructed over ancestral territory into municipalities organized around Mapuce or intercultural governance” (Piciñam, et al. 2010, p. 53). Furthermore, these kinds of top-down decisions imposed by the state might generate internal conflicts capable of disintegrating the community, as was the case with the creation of the municipality of Villa Pehuenia (García-Gualda 2017, p. 169). 140 life plans. Therefore, they would also help counteract the negative impact the historical injustice had on the ability of indigenous people to preserve the group’s culture (Meyer 2001, pp. 286-290).

In addition, recognizing autonomy of indigenous communities implies that the Argentine state restricts itself to matters that it has the competence to regulate. Therefore, this measure also helps to restore trust not only with respect to the non-indigenous population but also concerning Argentine institutions. By restoring such confidence, indigenous people may start to see the state as a valuable shared project. In this way, the barriers that hinder the participation of indigenous communities in the collective decision- making process are mitigated and their interest in being makers of the Argentine institutional system will be closer to being satisfied.158 For example, for the sake of internal autonomy, indigenous people might establish an institutionalized parliament (Gvbamtuwvn) with the competence for pursuing specific policies legally recognized by the Argentine Republic and the provinces. 159

This is only one of many possibilities for articulating some form of self- government. There might be others. For instance, Mapuce people have a system of conflict resolution based on the notion of Az Mapu, a set of principles and norms regulating the relationship between people and the environment. These principles and norms influence what Mapuce people call Nor Mogen, the set of legal norms that regulate each community’s social life (Piciñam et al. 2010, p. 198). Az Mapu, applies different solutions – reparation, punishments, etc. – depending on the violation of different norms (Cárdenas-Llamacán 2019, p. 102). They also rely on Meli Wixan Mapu, which is an

158 Granting a certain degree of self-government may also counter the path-dependency of political institutions regarding past events that disenfranchised indigenous groups from them. On this problem, see Ypi (2013, p. 188). Further, once autonomy has been granted, a serious and persistent violation by the state of the group’s autonomy may justify secession in response to the infringement of the autonomy agreement (Buchanan 2004, p. 357). 159 The fact that the Mapuce and other indigenous communities living in the current territory of various provinces is not a legal obstacle to this. Indeed, the first part of Article 124 of the Argentine Constitution asserts that “The provinces are empowered to set up regions for the economic and social development and establish entities for the fulfillment of their purposes.” Thus, based on this article, two or more provinces, given prior consultation with indigenous people, could legally create regions that might be ruled in certain aspects by an indigenous peoples’ institutionalized parliament. Given that the Mapuce community has members both in Argentina and Chile, those parliaments might evolve into some sort of trans-state parliament in which indigenous people can channel their demands for autonomy in all their ancestral territory. Indeed, some Mapuce members and groups make this kind of claim (Marimán, Caniuqueo, Millalén & Levil 2006, pp. 253-271). Lukas Meyer (2001) provides an in-depth analysis of how these measures can be justified. He considers the situation of the Saami people in Scandinavia (pp. 291-295). For a description of how Mapuce people politically organize themselves in Argentina today, see Kropff (2005, pp. 113-116); Cañuqueo, Kropff & Pérez (2015); Piciñam, et al. (2010). 141 institutionalized organism with the authority to create legal norms. In this way, it would be possible to consider how the Argentine provincial parliaments can interact with the Meli Wixan Mapu so that Mapuce norms can have legal recognition by the state.

Further, certain forms of indigenous community justice can be recognized. Mapuce people rely on Nor Feleal, the organism responsible for administrating justice in each Lof (community) (Piciñam et al. 2010, p. 104).160 However, as the Latin-American experience shows, it would be of utmost importance to articulate good ways of coordination between ordinary and indigenous systems of communal justice (Ramirez 2017, pp. 112-114). Among the challenges of coordination between systems, we might find the possible tension between certain indigenous people’s understanding of collective rights with the western idea of respect for individual fundamental human rights.161

The second measure I propose is to reform the Argentine Senate so that indigenous populations, or a federation of different groups of indigenous peoples, could have representatives there. At first, this measure might seem too radical but as I explain below this is not the case. Argentina is a federal state, as established in Article 1 of the Constitution.162 To be a federal state means that “there is a division of powers, constitutionally defined and protected, between a central government whose decisions apply to all the members of a state, and several substantial governments whose decisions apply only to segments of the population of the state” (Weinstock 2001, p. 75).

In Argentina, power is divided between the central government and twenty-three provinces plus the Autonomous City of Buenos Aires.163 The legislative branch of the national government is divided into two chambers: the House of Deputies and the Senate.

160 These are two proposal made by the Mapuce Confederation of Neuquén (Piciñam, et al. 2010, p. 20). 161 The establishment of what Kymlicka calls external protections that intend to promote fairness between groups may help. However, we should be more cautious with the existence of “internal restrictions, which limit the right of group members to question and revise traditional authorities and practices” (1995, p. 37). As asserted by Føllesdal “minorities may not appeal to the value of maintaining culture in order to claim powers of internal restriction if important interest of individuals are threatened. No important interest of individuals is at stake in maintaining a culture unchanged” (1996, p. 17). In Latin-America, the Plurinational State of Bolivia is perhaps the country where the possibility of having indigenous communal justice is more developed. On this issue and, in particular, how the system of indigenous communal justice was established in the constitution of that country, see Hammond (2011). 162 Article 1 of the National Constitution asserts: “The Argentine Nation adopts the federal republican representative form of government, as this Constitution establishes”. 163 This is prescribed in Article 121 and the first paragraph of Article 129 of the National Constitution. Article 121: “The provinces reserve to themselves all the powers not delegated to the federal Government by this Constitution, as well as those powers expressly reserved to themselves by special pacts at the time of their incorporation”. Article 129: “The City of Buenos Aires shall have an autonomous system of government with the power of legislation and jurisdiction, and the people of the City shall directly elect the head of its government”. 142

The House of Deputies represents the entire population of Argentina. In Senate, each province has three senators who defend the interests of the province.164 Therefore, the current Argentine institutional system is sensitive to interests that a specific group of people has as a group. My proposal is to expand the scope of those who can defend their interest as a group in the Argentine Congress. I propose reforming the Senate so that indigenous populations will have at least three senators who, as the provinces’ representatives, defend and argue for their specific interests.

Such a reform could increase not only the trust of indigenous populations in Argentine institutions, but would also be a way of recognizing and repairing the historical injustice of having designed an institutional system without considering the existence of specific groups of people that, like the Argentine provinces, had their particular interests at the time in which power was institutionally divided.165 Recall that the Argentine Constitution (Article 75, Section 17) established that Congress has “To recognize the ethnic and cultural pre-existence of indigenous peoples of Argentina.” Thus, it should not sound strange that indigenous groups have special seats in the Senate to channel their demands in the same way as the provinces do.166

The third measure is analogous to one presented by Thomas Pogge. He considers a country whose founders framed a constitution which contains a clause that prescribes that, after the death of any landowner, her or his land should pass to the eldest son. The constitution also prescribes that any change of that clause requires a two-thirds majority of votes in a referendum. After several years of discussions, a group of women advocates

164 This is regulated, especially, by Articles 44, 45 and 54 of the Argentinian National Constitution: Article 44: “The Legislative Power of the Nation shall be vested in a Congress composed of two Houses, one of the Deputies of the Nation and the other of Senators for the provinces and the City of Buenos Aires”. Article 45 “The House of Deputies shall be composed of representatives directly elected by the people of the provinces, of the City of Buenos Aires, and of the Capital City in case of its moving, which for this purpose are considered as constituencies of a single state, and by a simple plurality of votes. (…)” Article 54: “The Senate shall be composed of three senators from each province, and three from the City of Buenos Aires, who shall be jointly and directly elected, corresponding two seats to the most voted political party, and the other seat to the political party following in number of votes. Each senator shall have one vote.” 165 Argentinian federalism was formed under a process of what Føllesdal calls coming together (2018, p. 2) since the different provinces pre-existed and they came together organizing the federal state as it is established in the Constitution of 1853 and 1860. 166 There are other possible measures available for increasing the power of indigenous people in the collective-decision making process and thereby increasing the likelihood of satisfying their interest in being makers of the institutional system. In other countries such as New Zealand, as Applbaum highlights, “those who identify Maori and choose to place their names on a separate electoral roll fill seats in proportion to the number of Maori voters” (2019, p. 177). One might think of a similar measure being implemented in electing members of the House of Deputies. Indigenous people might have the possibility of placing their name in a separate electoral circumscription to vote for indigenous representatives. 143 for amending the clause such that, after the death of the landowner, his or her properties should pass to the eldest child (Pogge 2004, p. 124). The argument women use for this change is not that the old clause was unjust but that “at the time of the founding and for more than a century thereafter, they say, women were completely excluded from the political process” (Pogge 2004, p. 125). In Pogge’s example, there is a referendum, and the women’s proposal obtains sixty percent of the votes. According to the original constitutional provision, this majority is insufficient for changing the inheritance rule since two-thirds of the votes are needed for the change. After this result, Pogge continues, the group of women concludes that the forty percent of the population who vote against the proposal have a moral reason for not using that power to block the constitutional reform since “a simple majority deserves to win because the sex-asymmetrical provision they are seeking to dislodge was entrenched in an unjust manner” (Pogge 2004, p. 125). That is, in a situation in which women were not allowed to participate in the institutional design.

I think that an analogous argument applies to the indigenous situation in Argentina. When power was institutionally divided in the Constitution (1853 and 1860), indigenous people were not part of the Constitutional Conventions, and their interests were not considered. This, in addition to the fact that they belong to groups that, like the provinces, pre-exist the Argentina Republic justifies that they have representatives in the Senate. However, such a reform would probably require a constitutional amendment. Article 30 of the Argentine Constitution requires a vote of at least two-thirds of the members of the Congress to declare the necessity for a constitutional reform.167 However, when such a clause was entrenched, the members of the indigenous people could not participate in designing the institutions of Argentina.168 The problem is that if a simple majority wanted to make the institutional system more inclusive vis-à-vis the members of indigenous peoples, a minority would have a veto power unjustly obtained because it was acquired in circumstances where there were significant barriers to the participation of indigenous people in the institutional design. Therefore, it seems that there are reasons not to oppose the opening of a constitutional reform process if a simple majority want to start with such a process with the intent that members of indigenous communities have

167 Argentine Constitution, Section 30: “The Constitution may be totally or partially amended. The Congress must declare the necessity of reform with the vote of at least two-thirds of the members, but it shall not be carried out except by an assembly summoned to that effect.” 168 Further, in the Constitutional Convention of 1994, which reformed the Argentine Constitution and recognized the relevance of indigenous interests it was not allowed to reform such a clause. 144 more participation in the institutional design of Argentina. This is a negative moral duty that consists of not using a veto power acquired owed to an unjust entrenchment of rights. As Pogge asserts, “if a majority favors a constitutional change, a minority should not use the veto power it may have, thanks to historically unjust entrenchment, to block the majority will” (2004, p. 127). To fulfill this duty expresses that the Argentine institutional system, at least from now on, should be the product of all, including indigenous populations. In this sense, this third measure would also encourage the trust between indigenous and non-indigenous people.

Conclusion

In this chapter, I questioned the legitimacy of the Argentine institutions regarding members of indigenous peoples who live in its current territory. I argued that for an institutional system to be legitimate, it has to accommodate both the takers and makers dimensions of citizenship. I began this chapter by analyzing the principle of proximity, which asserts that states should be formed among people who occupy the same territory and are likely to have conflicts with each other. Even according to such a principle, I argued that the forced imposition of the Argentine institutions over indigenous populations during the Conquest of the Desert was unjust. However, I contended that currently living indigenous and non-indigenous people should be part of the same institutional arrangement. The institutions of Argentina may occupy such a role because they are in an advantageous position for satisfying the interests of both indigenous and non-indigenous people have as takers of that institutional system.

However, concerning indigenous populations, the Argentine state is deficient. Indigenous people’s interests as makers are not satisfied since barriers to their involvement in the collective decision-making processes still exist. Thus, the supersession of the historical injustice is only partial: some effects of the forcible imposition of the institutional system over indigenous populations still need to be addressed. To redress this historical deficit, I proposed three measures to encourage trust between indigenous and non-indigenous Argentine citizens. To perform some of these measures would allow the members of indigenous people to be configured in the role of makers of the Argentine institutional system. As long as this is not the case, the historical injustice of the forced imposition of the Argentine legal order on indigenous populations will not be superseded.

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Therefore, the application of the institutions of the state of Argentina over the members of the indigenous populations is still illegitimate.

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CHAPTER 4 LAND, COMPENSATION, AND DISTRIBUTION

Introduction

So far, I explained that cases like the Conquest of the Desert ought to be considered historical injustices. In particular, in Chapter 1, I argued that the appropriation of indigenous territory by the past members of the Argentine state was unjust. In Chapter 2, I argued that currently living members of the Argentine state might still have reasons for providing compensation to currently living indigenous people owing to the lasting impacts of that past injustice. In Chapter 3, I considered one type of claim indigenous people might have due to the fact that their territorial rights were violated in the past. I focused on the lasting impacts of the unjust imposition of a legal order on the indigenous survivors of the Conquest of the Desert. I argued that some reforms need to be carried out so that the institutional system of Argentina can be made legitimate with respect to indigenous people. In this chapter, I analyze another aspect of indigenous territorial claims. I examine whether or not the lands they possessed before the Conquest of the Desert should be returned to them or, should this be impossible, if indigenous peoples should receive another form of compensation.

To analyze this issue, I return to the account of the indigenous Chief Pincén who was captured in the province of Buenos Aires and imprisoned with several members of his family on Martín García island in 1878 (Nagy 2014b, p. 99). As a consequence of this event and the subsequent military campaigns, most surviving members of this community were forcibly expelled from their territory in order for the land to be sold in the private market (Nagy 2014b, p. 100). However, Lorenzo Cejas-Pincén, a great- grandson of Cacique Pincén, obtained legal recognition of the Indigenous Community Cacique Pincén, with the aim of recovering the lands occupied by his predecessors in the late 19th century.169 Is this claim justified? Are there still reasons for providing

169 Article 3 Section B of the 1995 Statute of the Community establishes as one of its aims: “to defend the lands of the community and to receive titles of lands suitable for exploitations and activities that serve for the progress of the community” (Nagy 2014b, p. 108). 148 compensation to indigenous communities in cases like that of Cacique Pincén’s community or are their claims for receiving either lands or compensation superseded?

In this chapter, I argue that concerning indigenous claims for lands, changes in circumstances that affect a particular distribution of goods cannot alone supersede the reasons for providing compensation. I highlight that injustices can create some reasons for giving compensation. In particular, those reasons trigger a fallback or secondary duty whose existence is owed to the non-fulfillment of the primary duty of not committing injustices. In our case, I contend that the obligation to provide compensation to indigenous populations remains as far as present members of Argentina can still conform with some of the reasons why past members of the Argentine state had the duty not to appropriate indigenous lands. However, I assert that changes in circumstances vary the specific kind of compensation owed to the victims of the injustice. Under certain conditions, only symbolic compensation is possible.

To defend this thesis, in Section I, I will specify how the notions of property and compensation are to be understood in this chapter. Having clarified these two basic concepts, in Section II, I explain how Jeremy Waldron’s supersession thesis is applied to concerns about land. Particularly, I focus on how it is applied to the notions of property in connection with distributive justice considerations. In Section III, I argue that it is reasonable to think that Waldron intends to provide considerations of compensatory (reparative or corrective) justice in addition to those of distributive justice. If this is so, his version of the supersession thesis has to be built along similar lines as Jules Coleman’s annulment conception of corrective justice. Thus understood, changes in circumstances that make the current state of affairs distributively just can nullify, as in our case, indigenous claims for receiving compensation.

However, in Section IV, I argue that Jules Coleman’s annulment conception of corrective justice is simultaneously too wide and too narrow. It is too wide because it does not specify who is responsible for providing compensation. I argue that there are reasons for thinking that the effects of injustices should be annulled at the expense of the perpetrator of the wrongdoing or injustice. Hence, a moral remainder is left when changes in circumstances annul wrongful losses. The same concern applies to Waldron’s version of the supersession thesis since, like Coleman, he focuses only on the consequences of wrongdoings (or wrongs).

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I explain that Coleman’s annulment conception (and Waldron’s supersession thesis) is too narrow in Section V. Gains and losses to be annulled are not limited to deviations of a certain baseline of distributive justice. In particular, legitimate expectations of indigenous persons to continuing living on the lands they possessed and the intrinsic value of group membership, whose fulfillment might require the possession of land, can also be grounds for compensation. Finally, I argue that if compensation is owed, for identifying the specific required form of reparation, we must ask for the reasons why, for instance in the case of the Conquest of the Desert, past members of the Argentine state had an obligation not to make incursions and appropriate indigenous lands in the late 19th century. Once those reasons are identified, indigenous people ought to be compensated by the measure that represents the next-best available way to conform to the reasons why the past members of the Argentine state had the primary duty of not stealing lands from indigenous people in the first place (Section VI).

I. Compensation and Land

This chapter is about how distributive justice considerations affect claims for receiving compensation because someone has suffered unjust losses of land. For this reason, I need to specify how I understand these notions. Different conceptions of distributive justice will be discussed below. However, as a general concept, I proceed on the assumption that questions of distributive justice make us think in principles or norms that help in explaining or determining “who [should] get how much of what and why” (Gardner 2012, p. 243). I understand compensation and compensatory justice in a broad sense. In this dissertation, the terms compensatory justice and corrective justice are used interchangeably to express that there are reasons in favor of providing some form of reparation owed to the perpetration of some (past) injustice. The notion of compensation that I use here is meant to include both measures of restitution and those that stem from the notion of compensation in a narrow sense. Thus, I use the term compensation to refer to both those measures that require returning the thing initially taken (restitution) and those whose aim is to offset the consequences of injustices (compensation in a narrow sense).170

170 I took the distinction between restitution and what I call compensation in the narrow sense from Ivison (2006 pp. 509-510). In this chapter, however, measures of restitution are limited to cases of previous injustices. In Chapter 6, however, I will extend its use for measures intending to return a given good even if no injustice was perpetrated. 150

Land claims are worked out by relying on a basic notion of property. As highlighted by Waldron, “property is a general term for rules governing access to and control of land and other material resources” (1989, p. 31). Thus, although I will often speak about indigenous claims for recovering their lands and consequently for regaining their property, I am not referring to the much narrower notion of private property. In most cases, indigenous people make claims for recovering their lands as communal property, which is a specific form of collective right.171 However, I would like to specify this broad notion of property by relying on two incidents, typically associated with different conceptions of private property: (1) the right to exclude others from the use, occupancy, and possession of the piece of land in question; and to (2) the right of agenda-setting, that is, the prerogative of the owners in deciding how the specific piece of land will be used (Waldron 2020, p. 4).

The first incident is compatible with how the Mapuce people understand their relation to land. They share these features with the western common concept of private property, and they consider that they have the right to exclude others (mainly non-Mapuce people/wigka) from the lands they control.172 However, there is less compatibility with respect to the second incident. Mapuce people do not think that they are fully entitled to decide how a specific plot of land will be used. For them, their relation to land should be understood in terms of reciprocal stewardship or reciprocity (Millalén-Paillal 2006, p. 29). The Mapu (territory) is itself a very real and participatory aspect of the Mapuces’ daily lives (Webb 2014, p. 228) and imposes certain constraints with respect to the possibility of agenda-setting.173 However, one might view this second incident of property as an immunity (drawing on Hohfeldian incidents of rights) in the sense that those who do not possess and have the property of a specific plot of the land lack the

171 The dossier edited by Kosovsky and Ivanoff (2015) discusses different aspects of how indigenous communal property ought to be regulated in Argentina. Article 18 of the Argentinian Civil and Commercial Code (Law Nº 26 994) recognize the legal right to indigenous communal property as follows: Rights of indigenous communities. Recognized indigenous communities have the right to possession and communal property of the lands they traditionally occupy and of those other suitable and sufficient for human development, as it is established by law, in accordance with the provisions of article 75, section 17 of the National Constitution. 172 The right to exclude others from using the resource at stake entails that others have the duty not to use the resource without the rights holder’s permission. As Waldron notes this is the distinctive feature of property rights (1993, p. 195). 173 In the early 19th century Mapuce communities (Lof) were organized around the authority of a Logko (Chief) who was in charge of distributing within the community the usufructuary rights to the land which was used for husbandry and agriculture (Di Giminiani 2015, p. 492). For an interesting full description of how Mapuce communitys functioned before the 19th century military campaigns, see Millalel-Paillal (2006, pp. 36-43). 151 ability to alter or modify the incidents of those who possess and have the property of that plot of land. Thus, whenever I assert that some entity has the property on some parcel, I am claiming that such an entity, a person or a community, has the right to exclude others from using, occupying, and possessing those lands, and also are immune to other persons in deciding how those lands should be used.

II. Land and the Supersession Thesis

Concerning land claims, Waldron (1992b) opens his defense of the supersession thesis by considering the necessary conditions for the legitimate acquisition of certain goods. He focuses on Robert Nozick’s entitlement theory. According to Nozick (1974), the acquisition of a previously unowned resource is legitimate as long as such appropriation does not worsen the situation of others (p. 175).174 If we consider this proviso, the legitimacy in acquiring a particular resource depends on the number of resources and the number of people present in the original acquisition situation. On this view, according to Waldron, “an acquisition which is legitimate in one set of circumstances may not be legitimate in another set of circumstances” (Waldron 1992b, p. 24). In a situation of plenty with a small population, it is more likely that acquiring a specific plot of land would be according to the proviso and, hence, legitimate. Under different circumstances such as scarcity or overpopulation, it is more likely that the acquisition of the same resource would not conform to the proviso and would thus be an illegitimate acquisition. This also shows, according to Waldron, that “an initially legitimate acquisition may become illegitimate (as the basis of an ongoing entitlement) at a later time on account of a change in circumstances” (Waldron 1992b, p. 24). This possibility is exemplified in his first waterhole example:

(I) On the savanna, [at T1] a number of groups appropriate water holes, in conditions where it is known that there are enough water holes for each group. So long as these conditions obtain, it seems reasonable for the members of given group [S or South] to use the water hole they have appropriated without asking permission of other groups with whom they share the plains; and it may even seem reasonable for them to exclude members of other groups from the casual use of their water holes (…). But suppose there is [at T2] an ecological disaster, and all the water holes

174 Similarly, we could also adopt the Lockean idea according to which the acquisition of an unowned resource is legitimate to the extent that I leave enough and as good for others (Locke 1970, p. 304). 152

dry up except the one that the members of [S] are using. Then in these changed circumstances, notwithstanding the legitimacy of their original appropriation, [at T3] it is no longer in order for [S] to exclude others from their water hole [HS] (Waldron 1992b, p. 24).

In this example, we can see how rights and entitlements are not immune to changes in circumstances. This is explained by Waldron’s claim about sensitivity to circumstances: “In the case of almost every putative entitlement, it is possible to imagine a pair of different circumstances, C1 and C2, such that the entitlement can only barely be justified in C1 and cannot be justified at all in C2. The shift from C1 to C2 represents a tipping point so far as the justification of the entitlement is concerned” (Waldron 1992b, p. 20). Through this claim, it is possible to see in example (I) why, at T1, the acquisition made by members of the group S of the waterhole HS was legitimate, and their right to use it exclusively was justified. It is also possible to see why at T3, after circumstances have changed, the right of members of S to use HS exclusively is no longer justified. This is because (a) the right to have the exclusive use of the waterhole HS can be justified under circumstances C1 but not under circumstances C2, and (b) circumstances C1 are present at

T1, and circumstances C2 are present at T3. Hence, it is not possible to justify at T3, under circumstances C2, the right of group S to use the waterhole HS exclusively. As we see, changes in circumstances call the legitimacy of the entitlement of group S to HS into question.

Waldron focuses on historical and un-patterned theories of justice, such as Nozick’s. Nozick’s entitlement theory of justice is historical because it sustains that the justice of a certain distribution depends on how it came about. His theory is un-patterned since it does not assess the justice of the distribution according to a certain pattern such as equality, sufficiency, merit, etc. However, Waldron’s considerations can be equally applicable to end-state and patterned-based theories of justice. A theory is patterned- based if it evaluates the justice in the distribution according to a certain standard or pattern. A theory is end-state-based if it assesses just distributions according to who ends up with what.175

175 In this characterization, I follow Hevia and Spector. It should be noted that, as these authors claim, a theory can be end-state without being patterned. Utilitarianism is an example. At the same time, historical theories do not need to be un-patterned. A theory of justice in which the distribution is according to moral merit would be an example of a historical patterned theory of justice. See Hevia and Spector (2008, pp. 537-538) 153

To see why Waldron’s supersession thesis applies to patterned-based and end- state theories of justice, imagine that we endorse some version of egalitarianism. In this view, distributive justice occurs if goods are (initially) allocated according to the pattern of equality. With this consideration in mind, imagine a scenario of two waterholes in which each group receives their fair share of the resource so that each group has one waterhole for their own. If there are no relevant differences among groups, this situation is distributively just. Nevertheless, like in the previous example, a natural disaster makes all the waterholes dry up except the waterhole HS used by group S. As before, the change in circumstances calls the legitimacy of holdings into question. With these new circumstances, distributive justice requires that the remaining waterhole HS be shared among the two groups. So far, I reconstructed Waldron’s claims concerning un-patterned historical theories of justice that (a) “an acquisition which is legitimate in one set of circumstances may not be legitimate in another set of circumstances” and (b) “an initially legitimate acquisition may become illegitimate or have its legitimacy restricted (as the basis of the ongoing entitlement) at a later time on account of a change in circumstances” (Waldron 1992b, p. 24). I have added that both assertions apply to patterned and end-state theories of distributive justice as well. However, why are these considerations relevant for the discussion of compensation for historical injustices? After all, there is no injustice in the previous waterhole scenario. These considerations are relevant because, according to Waldron, in the same way that (b) “an initially legitimate acquisition may become illegitimate … at a later time because of changes in circumstances”, (c) “an act which counted as an injustice when it was carried out in circumstances C1 may be transformed, so far as its ongoing effect is concerned, into a just situation if circumstances change in the meantime from C1 to C2” (Waldron 1992b, p. 24). When this occurs, “the injustice has been superseded” (Waldron 1992b, p. 24).

In defending this possibility, Waldron provides his second waterhole example:

(II) Suppose as before that [at T1] in circumstances of plenty various groups on the savanna are legitimately in possession of their respective water holes. One day, motivated purely by greed, members of group [N or North] descend on the water hole possessed by group [S] and insist on sharing that with them. What’s more they do not allow reciprocity; they do not allow members of [S] to share any water hole that was legitimately in the possession of [N]. That is an injustice. But then [at T2] circumstances change, and all the water holes of the territory dry up 154

except the one that originally belonged to [S]. [At T3] [t]he members of group [N] are already sharing the water hole on the basis of their earlier incursion. But now that circumstances have changed, they are entitled to share that water hole (Waldron 1992b, pp. 24-25).

How should we assess this scenario (II)? Let us think of patterned end-state theories of distributive justice. At time T1, when group N invades group S’s waterhole, they wrongfully cause a deviation of the baseline of justice. This deviation calls for a specific kind of reaction. As Lukas Meyer asserts, “If the reaction the deviation calls for is based on the wrongfulness of what occurred, we are operating in the realm of compensatory justice” (Meyer 2013, pp. 609-610).176 Thus understood, the invasion by group N of group S’s waterhole calls for measures of compensation. At least at T1, N should provide compensation to S so that the deviation of the baseline of distributive justice is rectified. Similar reasoning could be applied to some historical un-patterned theories of justice, such as Robert Nozick’s. In Nozick’s view, a society is distributively just if “everyone is entitled to the holding they possess under the distribution” (Nozick 1974, p. 151). Justice in holdings occurs if holdings are acquired according to the principles of justice in acquisition and justice in transfer (Nozick 1974, p. 151). However, this is not the case if we look at the second waterhole scenario (II). At time T1, when group N invades group S’s waterhole, group N acquires the waterhole HS in an impermissible way according to these two principles. Nozick (1974) proposes his third principle of justice for this kind of situation, the principle of rectification of the injustice in holdings (p. 152). This is a principle of corrective or compensatory justice whose function is to restore the (previous) just distribution in holdings.177 Therefore, in Nozick’s view, at T1, the principle of rectification of the injustice requires group N to return the waterhole HS to group S members.

However, in Waldron’s second waterhole example (II), we are not at T1 but at T3, and a natural disaster caused all the waterholes to dry up except the waterhole HS, which is already shared by the groups N and S. The natural disaster calls the legitimacy of group

176 This way of understanding compensatory justice has its roots in Aristotle. As David Miller highlights “Corrective justice, then, essentially concerns a bilateral relationship between a wrongdoer and his victim, and demands that the fault be cancelled by restoring the victim to the position she would have been in had the wrongful behavior not occurred” (2017, Section 2.2.). 177 He asserts, “The general outlines of the theory of justice in holdings are that the holdings of a person are just if he is entitled to them by the principles of justice in acquisition and transfer, or by the principle of rectification of injustice (as specified by the first two principles). If each person’s holding is just, then the total set (distribution) of holdings are just” (Nozick 1974, p 153). 155

S’s holding on the waterhole HS into question. With this new set of circumstances, C2, there is no longer an injustice to be rectified. Thus, the reasons for providing compensation or correction seem to no longer be present. Similar considerations apply to some patterned based theories of distributive justice, such as egalitarianism. At T1, members of group N caused a wrongful deviation in the pattern of distributive justice so that at that time measures of compensatory justice should have been taken for such a deviation to be rectified. However, at T2, there was a change of circumstances that seems to have rectified such a deviation. With this new set of circumstances, C2, at T3, group N has nothing to rectify.

According to Waldron, there are no substantial differences between how this second scenario and the first one should be treated after circumstances change. The supersession thesis allows us to treat the two waterhole examples similarly, even though in the second, but not in the first, there was an injustice at T1. In both cases, at T3, with this new set of circumstances, C2, it is not unjust that group N uses HS. This is because, at T3, under circumstances C2, the legitimacy of the entitlement of group S to HS has been called into question. In Waldron’s terms, “Now that circumstances have changed [the group N] is entitled to share that waterhole [HS]; it no longer counts as an injustice. It is, in fact, part of what justice now requires. The initial injustice by [N] against [S] has been superseded by circumstances” (Waldron 1992b, p. 25).

Waldron’s version of the supersession thesis seems to give rise to a principle upon which backward-looking reasons of compensatory justice no longer have moral weight or are at least overtaken as soon as they conflict with forward-looking, in particular, need- based reasons of distributive justice. Consider now the claims for land that different indigenous communities are currently making in Argentina. Before 1869, that is, before the Conquest of the Desert, Argentina’s population density was about 0.6 people per square kilometer (De la Fuente 1898, p. CXXV), and its total population was 1,830,214 inhabitants (De la Fuente 1872, p. XX) Assume that according to some plausible patterned end-state theory of distributive justice, before the Conquest of the Desert, the distribution of land between indigenous and non-indigenous groups was not against the requirements of such a theory. When the past members of the Argentine state appropriated the territory of indigenous communities, they created a deviation of the baseline of distributive justice th that called for compensation. At T1, in the late 19 century, with circumstances C1, compensatory justice required that lands be returned to the different indigenous 156 communities so that the deviation of the baseline of distributive justice is rectified. Even after the Conquest of the Desert, such a measure does not seem to compromise a just baseline of distribution of holdings. In 1885, that is the year in which the Conquest of the Desert ended, Argentina had a population of 4,044,911 inhabitants178 and its population density was 1.40 people per km² (De la Fuente 1898, p. CXXV). It does not seem that these circumstances can be considered a situation of scarcity or overpopulation able to supersede the past injustice. Thus, returning some lands to indigenous communities does not seem to compromise distributive justice requirements. On the contrary, to compensate indigenous people at that time by returning their lands seems to correct the wrongful deviation of the baseline of justice performed by past members of the Argentine state. If we think about the community of Cacique Pincén, compensatory justice gives reasons for indigenous people receiving the lands they previously occupied.

Nothing changes from the perspective of historical un-patterned theories of justice if we assume that before 1875 both the Argentine state and indigenous peoples acquired their holdings according to some version of the principles of just acquisition or just transfer.179 In this view, it is also the case that the principle of rectification of the injustice required that, at T1, those lands unjustly appropriated during the Conquest of the Desert would have been returned to indigenous peoples.

However, as in Waldron’s second waterhole example, the problem is that current circumstances differ from those of the 19th century. The Argentinian population is no longer 4,044,911 inhabitants, but is currently estimated at approximately 46,000,000 inhabitants.180 Further, in 2019, population density was no longer 1.40 persons per km² but 14.6 persons per km² and 50 inhabitants per km² in the province of Buenos Aires

178 From these, 90,000 were indigenous persons, 30,000 of whom were, according to the population census of 1895, “beyond the empire of the civilization” (De la Fuente 1898, p. XIX) 179 I am aware that this is a contested issue given discussions about a) whether first-occupancy or prior occupancy is required for being considered an indigenous people in a certain territory (see Waldron 2003), and b) about whether indigenous people had to have had exclusive control over those lands or whether they just need to have resided there (Føllesdal 2004, pp 339-340). It is much more contested whether the Argentine state was entitled to the territory occupied before the Conquest of the Desert, since that territory was also possessed by indigenous people’s before the Spanish crown arrived in South America. Having noted this, however, I proceed on the assumption that the state of affairs prior to the Conquest of the Desert can be considered distributively just and, as I argued in Chapter 1, the transfer of territory from indigenous people to the past members of the Argentine state was unjust. I believe that examining the issue this way is much more helpful for thinking about how to respond today in a feasible way to the injustices perpetrated by the Argentine state against indigenous populations. 180 The official estimation can be found at https://www.indec.gob.ar/ (Accessed May 5th, 2021). 157 where the community of Pincén is located.181 In light of these changes in circumstances, it seems evident that given that the land has the same surface area as in the late 19th century but that the population has increased, the resource is now more scarce than in the past. Furthermore, Argentina’s poverty rate is over 42 % (INDEC 2021, p. 3) which is an additional factor that should be considered.182 I am uncertain if we can assert that these circumstances make the case analogous enough to Waldron’s second waterhole example. However, let us assume for the sake of argument that this is the case.183 Then, it can be claimed that, at T3, currently living inhabitants of Argentina are in a situation somehow similar to that of Waldron’s second waterhole example, a situation that makes it just that indigenous and non-indigenous people have to share those lands that were exclusively owned by indigenous people in the past. Suppose we accept Waldron’s version of the supersession thesis. As far as the ongoing effects of the Conquest of the Desert are concerned, the current situation seems to have to be treated as if no injustice occurred in the past. Like in Waldron’s second waterhole example, the past injustice seems to have been superseded.

III. On the Normative Relationship between Distributive and Compensatory Justice

In the last section, I explained that the supersession thesis by relying on Waldron’s waterhole examples (I and II). I highlighted that, in his view, the two waterhole examples ought to be treated similarly even though in the second, unlike in the first, there was an injustice at T1. I also suggested that if the two waterholes should be treated similarly, and if it is true that the current situation of Argentina is somehow similar as that of Waldron’s waterhole examples, then, at least concerning indigenous land claims, the past injustice was superseded. In this view, forward-looking reasons of distributive justice seem to be weighty enough for superseding the past injustice suffered by indigenous people during

181 IGN See, https://www.ign.gob.ar/NuestrasActividades/Geografia/DatosArgentina/DivisionPolitica (Accessed May 5th, 2021). 182 These conditions have a prognosis of deterioration. As highlighted in previous chapters, the government had to take drastic measures concerning the SARS-CoV-2 that led to an economic to slump and an increase in conditions of social inequality in several Argentine provinces of (Bonfiglio, Salvia, and Vera, 2020). 183 I think it is worth exploring the possibility that current circumstances in Argentina are neither of need nor brought about by circumstances beyond the control of the perpetrators of the injustice. This strategy was put forward and analyzed in another context by Meyer (2004c, pp. 312-313). It might be important to extend this analysis to the case of Argentina. However, in this chapter, I would like to pursue a different route. I intend to assess whether we can justifiably claim that injustices are superseded even in situations in which present day persons live in situations of scarcity brought about by circumstances beyond the control of the perpetrators of the past injustice. 158 the Conquest of the Desert. However, is Waldron correct in saying that the two waterhole scenarios (I and II) should be treated along similar lines at T3?

Answering this question depends in part on how we understand the relationship between the reasons of distributive and those of compensatory justice. If the normative force of the reasons of compensatory justice derives entirely from the normative force of those of distributive justice, then the cases should be treated equally. Instead, if the reasons for compensatory justice are at least partially independent of those of distributive justice, we might have to distinguish how the two waterhole examples are treated. In this case, changes in circumstances that affect justice in the distribution of holdings cannot by themselves supersede historical injustices.

A reason is independent of another if it could be claimed that it has normative force in the absence of another reason. Conversely, a reason is derivative if it has no independent normative force (Parfit 2011a, p. 39). For our discussion, if the reasons for compensatory justice are derivative in the sense that their normative force derives from the normative force of the reasons of distributive justice when the reasons of distributive justice disappear, then the normative force of the reasons for compensatory justice disappears too. Instead, if the reasons for compensatory justice are independent of those of distributive justice, then the disappearance of the reasons of distributive justice does not imply the disappearance of the reasons for compensatory justice.

To understand the normative relationship between the reasons for compensatory and those of distributive justice the conceptual distinction between them must be explained. However, in discussing the conceptual and the normative problems we should proceed carefully. When we try to perform a conceptual and a normative inquiry at the same time, we run the risk of setting what Nino (1980) calls “definitional stops” (p. 198). A definitional stop occurs when “one or another proposed justification is already logically implied or logically excluded by the characterization of the concept” (Nino 1980, p. 198). For example, imagine that we conceptualize compensatory justice as the realm of justice whose only purpose is to compensate, correct, or remedy distributive injustices caused by human agency. If we do this, then, by the mere definition of the concept, we are presupposing a specific type of normative relationship between compensatory and distributive justice. In this case, compensatory justice is necessarily justified in terms of distributive justice. Simultaneously, by characterizing compensatory justice in this way,

159 we are excluding the possibility that compensatory justice will be justified by principles not related to distributive concerns. To avoid this problem, as Nino explains, we have to recognize that “there is a process of mutual adjustments between conceptual elucidation and construction of a theory in the framework of which the concept operates” (Nino 1991, p. 9). Hence, for our discussion, I will begin by sketching a basic characterization of the notion of compensatory justice. In discussing it, I provide some normative arguments that will help identify the relevant properties of each domain of justice. At the same time, this activity will clarify the normative relationship between the two.

Before his book Risks and Wrongs, Jules Coleman (1982; 1988; 1992a) supported what he called the annulment conception of corrective justice which he presented as follows in earlier works:

In my view, corrective and compensatory justice is concerned with the category of wrongful gains and losses. Rectification, in this view, is a matter of justice when it is necessary to protect a distribution of holdings (or entitlements) from distortions which arise from unjust enrichments and wrongful losses. The principle of corrective justice requires the annulments of both wrongful gains and losses (Coleman 1982, p. 423).

As he explains, this conception of corrective justice (or compensatory justice according to the terminology I use in this work) rests mainly on the notions of wrongful losses and gains, which are the objects of rectification. In this respect, Coleman (1992a) provides two conditions for asserting that a loss or a gain is wrongful. First, it has to be the product of human agency. On Coleman, losses based on simple misfortunes are beyond the scope of corrective or compensatory justice (Coleman 1992a, p. 371). Indeed, the requirement of human agency helps in distinguishing duties of compensatory (or corrective) justice from duties of distributive justice. Misfortunes caused by mere luck are beyond the scope of corrective or compensatory justice and should be tracked to the realm of distributive justice. The second condition for a loss or gain to be wrongful is that such loss or gain has to be the product of wrongdoing or wrong. Wrongdoing, in his account, is faulty, although not necessarily blameworthy behavior, which turns out to be a setback of some of the victim’s legitimate interests. In comparison, wrong is explained

160 by invasions of rights either in the form of violation or in the form of justifiable infringements (Coleman 1992a, p. 369).184

The distinction between distributive and compensatory justice outlined by Coleman can be appreciated if we look again at Waldron’s waterhole cases. Let’s return to the first example (I). At T1, the circumstances are such that each group has its own waterhole, either because they have acquired it legitimately or because the waterholes have been distributed according to some pattern of justice. At T1, before the ecological disaster, this imaginary world is distributively just. At T2, an ecological disaster makes all the waterholes dry up except the waterhole HS used by group S. Because of this change in circumstances, group N experienced a loss. However, such a loss was not the product of wrongful behavior performed by any human entity. Instead, these changes in the justice of the allocation of holdings are caused by mere luck. Hence, these losses are misfortunes that, in Coleman’s view, are beyond the scope of corrective or compensatory justice and should be tracked to the realm of distributive justice. Thus, in scenario (I), at T3, distributive justice concerns provide reasons for redistributing the use of the remaining waterhole between group S who is currently using it and group N, which does not have water at all after the drought.185

Now, let us turn to the second waterhole scenario (II). In this scenario, group N appropriates the waterhole HS that belonged to group S. Since group S no longer has the possession of HS after the injustice, group S has experienced a loss. However, since a faulty behavior of group N has caused such a loss, the loss is wrongful. In this case, at T1 before circumstances change, according to Coleman’s annulment conception, group S’s wrongful losses (as well as group N’s wrongful gains) call for measures of corrective or compensatory justice. Notice that, on the annulment conception, the normative force of

184 Given that neither blameworthiness nor unjust invasions of rights are needed in order for a loss suffered by someone to be wrongful, Coleman’s notion of wrongfulness is quite wide. Part of this wideness in Coleman’s categories is explained by the fact that he is thinking in tort law demands that sometimes require that some losses be repaired even if there was no blame or injustice in the behavior that caused them. However, at least for the time being, it is enough to accept the much narrower view according to which only injustices or blameworthy behaviors capable of setting-back legitimate interests of others can render some losses and gains wrongful. 185 As I have argued, from both historical theories and patterned-based theories of distributive justice, the change in circumstances provides reasons of distributive justice for performing the task of redistributing the remaining resource. Regarding historical theories of distributive justice, redistribution is required if the change in circumstances makes current entitlements incompatible with the respect of the original proviso that has legitimated the acquisition at T1. Similarly, concerning patterned-based theories of distributive justice, changes in circumstances require redistribution, if after such a change, the entities do not have their share according to the relevant pattern of justice. 161 the reasons for corrective justice stem from distributive justice considerations since the purpose of corrective justice is to restore the previous just distribution of goods.

The annulment conception of corrective (or compensatory) justice rests on two sets of distinctions. First, Coleman differentiates between grounds of recovery and grounds of liability. According to him, “The grounds of recovery specify the conditions that must be satisfied if a person’s claim to compensation is to be justified” (Coleman 1992a, p. 352). In the annulment conception, the scope of corrective or compensatory justice is restricted to those losses that one person or entity causes to another. Having suffered a wrongful loss (or having obtained a wrongful gain) specifies the grounds of compensation or recovery.

Instead, grounds of liability “specify the conditions that must be satisfied if imposing liability is to be justified” (Coleman 1992a, p. 352). The annulment conception is not clear enough at the moment of specifying grounds of liability. The only point Coleman makes in this regard is the opposition of his view to another set of conceptions according to which those who suffered wrongful losses have a moral right to recover. “In contrast, the annulment view holds only [that] the victim’s losses ought to be annulled. If they are not annulled, an injustice occurs, but no right of a particular victim need be violated” (Coleman 1992a, p. 366). By claiming that the victims have no right to recover, Coleman leaves open the question of who should be liable for compensating or correcting the injustices. The thesis says nothing concerning who is responsible for redressing or compensating the victim for having suffered wrongful losses.

The second distinction is between the notions of grounds and modes of recovery (Coleman 1992a, p. 352). This distinction is important because once we identify why the entity who suffered wrongful losses has a justified claim for compensation, we still have to discuss modes of recovery: the appropriate mode of compensation or correction. However, the annulment conception of corrective justice does not specify particular modes of rectification, either (Coleman 1992a, p. 358).186

Given that this conception of corrective or compensatory justice only requires nullifying wrongful losses (or gains), if those losses (or gains) are annulled, the claims

186 Coleman recognizes this point in Risks and Wrongs: “The annulment conception of corrective justice runs into trouble because it seeks to do no more than to articulate grounds of repair” (Coleman 1992b, p. 318). 162 for compensation or correction for those losses (or gains) are also annulled. It does not matter that such a consequence has occurred because the injurer has acted, some third party on his or her behalf has provided measures of compensation, or, importantly, because changes in circumstances have caused the same effect.

Consider again the supersession thesis in regard to how to respond to historical injustices. If Waldron also intends to provide considerations of corrective or compensatory justice, which I think he does,187 then it seems that his version of the supersession thesis has to be constructed along similar lines of Coleman’s annulment conception of corrective justice. Like Coleman’s annulment conception, Waldron’s waterhole examples seem to support that the supersession thesis is concerned with the appropriate response to wrongful distortions of distribution of holdings caused by human behaviors. In the second waterhole example (II), when at T1 the group N trespass on group

S’s territory and forces them to share their waterhole HS without reciprocating, group N’s behavior causes a deviation in the baseline of distribution of holdings.188 In both

Coleman’s and Waldron’s accounts, at T1, with circumstances C1, reasons of compensatory justice speak for the waterhole HS to be returned to group S so that the previous just distribution of holding will be restored.

However, as we know, at T2, there is a change in circumstances that make all the waterholes dry up, except for HS that is already shared by groups N and S. At T3, with circumstances C2, if Waldron’s view is accepted, we know that it is no longer unjust that groups N and S share the remaining waterhole HS. Group N no longer has a duty to return to group S the exclusive use of the waterhole HS. As in the first waterhole example in which no injustice was perpetrated at T1, after the natural disaster, circumstances make the current sharing of the remaining waterhole Hs between N and S just. In this situation, that is, at T3 with circumstances C2, in Waldron’s view, the injustice has been superseded (Waldron 1992b, p. 24).

Nevertheless, how is it possible that corrective or compensatory justice duties have disappeared just because changing circumstances modified justice in the distribution

187 When Waldron asserts that the topic of his article Superseding Historical Injustices is “reparation” (1992b, p. 6), or when in the latter article Redressing Historic Injustices, he claims that part of his discussion is about “some difficulties that historic rectification would involve” (2004b, p. 61), it seems that his thesis is also about what we might call corrective or compensatory (historical) justice. 188 Alternatively, if you prefer to work with historical un-patterned theories of justice, group N’s appropriation of group S’s waterhole causes an allocation of holdings in opposition to the principles of just acquisition and just transfer. 163 of holdings? The only response I can imagine is that Waldron might be thinking of corrective or compensatory justice in lines similar to Coleman’s annulment conception of corrective justice. As explained above, in Coleman’s annulment conception, only grounds for correction or compensation are specified. Further, he specifies them in terms of wrongful gains and losses. Therefore, when wrongful gains and losses are annulled, rectified, or eliminated, there are no longer reasons for correcting or compensating the injustice. As Coleman asserts:

Rectification, in this view, is a matter of justice when it is necessary to protect a distribution of holdings (or entitlements) from distortions which arise from unjust enrichments and wrongful losses. The principle of corrective justice requires the annulments of both wrongful gains and losses (Coleman 1982, p. 423).

Understood in these terms, for the annulment conception, norms of corrective or compensatory justice demand creating a state of affairs in which wrongful losses (and gains) are eliminated. Thus, in this conception, as it seems to be the case for Waldron’s supersession thesis, it does not matter that the annulment of gains and losses has been carried out by the perpetrator of the injustice, someone on his behalf or, importantly, by a mere change in circumstances. For Coleman’s annulment conception and Waldron’s supersession thesis, reasons of corrective or compensatory justice seem to derive their normative force from those of distributive justice.189

IV. Compensatory Justice: Grounds of Liability

The annulment conception of corrective or compensatory justice can be criticized for being concurrently too wide and too narrow. It is too wide because it does not specify who is responsible for providing compensation or correction.190 It is too narrow because the gains and losses to be annulled are not limited to deviations of a certain baseline of distributive justice. In this section, I discuss the first issue, leaving the second criticism for section V.

189 In his early writings, Coleman explicitly rejects this possibility: “Corrective justice is an independent principle of justice precisely because it may be legitimately invoked to protect or reinstate distributions of holdings which would themselves fail the test of distributive justice” (1983, p. 7). However, in his writings post Risks and Wrongs, he recognized that the annulment conception of corrective justice is a form of distributive justice (Coleman 1992b, p. 312; 1992c, p. 432). 190 Perry expressed the most relevant criticism: “we cannot simply focus on consequences as such, since that would fail to distinguish between losses wrongfully inflicted by human agency and losses that are the result of disease or accidents not involving others. We would let back, in other words, to distributive justice” (1992, p. 399). 164

Since the annulment conception specifies only grounds for compensation, it only speaks in favor of creating a state of affairs in which wrongful losses (and gains) are eliminated. This point is recognized later by Coleman:

For as I have characterized it, the annulment view appears to hold that justice requires that a certain state of the world be brought about, not that anyone in particular has a special reason in justice for bringing it about. And this is precisely the way we think about distributive justice. Therefore, in terms of their reason giving properties, corrective justice is indistinguishable from distributive justice (Coleman 1992b, p. 310).

The problem is that the annulment conception of corrective or compensatory justice falls short of identifying those who should bear the burden of providing compensation; it does not specify grounds of liability. As the post-Risks and Wrongs, Coleman exemplifies, “if Josephine steals Ronald’s radio, then Josephine has a reason to act under corrective justice that neither you nor I have” (1992c, p. 433). In this example, the annulment conception of corrective justice cannot account for Josephine’s special or agent-relative reasons to compensate Ronald.191 Similarly, if we think about the second waterhole example, the annulment conception cannot explain why members of group N have reasons for providing compensation to the members of group S that no members of other groups have.

The same concern applies to Waldron’s supersession thesis. When he asserts that

“an act which counted as an injustice when it was carried out in circumstances C1 may be transformed, so far as its ongoing effect is concerned, into a just situation if circumstances change in the meantime from C1 to C2” [emphasis in the original] (1992b, p. 24), like Coleman’s annulment conception, he seems to be focusing on the consequences of acts and how changing circumstances can rectify them. Hence, it is not a surprise that changes in circumstances that annul wrongful gains and losses by rendering, at T3, a state of affairs distributively just, will also annul any claim for correction that steamed from the wrongful losses and gains present at T1. Like Coleman’s annulment conception, Waldron’s supersession thesis is incomplete for not explaining why certain entities and not others have agent-relative reasons for providing correction or compensation.192

191 Agent-relative reasons are reasons that are only for some specific agent or set of agents (Parfit 1984, p. 143). 192 To clarify, I am not claiming that Waldron constructs the supersession thesis along the lines of the annulment conception of corrective justice. My claim is only that if he provides reasons for corrective or compensatory justice, he has to be relying on a thesis similar to Coleman’s annulment thesis. 165

Drawing on Coleman’s example, if Josephine steals not only Ronald’s radio but all his possessions, then he will be placed below the baseline of distributive justice. In such a case, each of us has reasons for assisting him to again reach the baseline of distributive justice. However, it is only Josephine who has reasons for returning the stolen possessions to Roland. As Coleman claims, “only the injurer, that is, [she], is responsible to return [his] possessions or to make good of [his] losses independent of considerations of distributive justice” [emphasis in the original] (Coleman 1992b, p. 313). Similarly, when the members of group N appropriate the waterhole Hs belonging to group S, it could be the case that under a certain set of circumstances, we all have reasons for aiding members of group S. This would be so if they are below some baseline of distributive justice. However, only members of N have reasons for returning the waterhole (and for providing compensation) to S independent of considerations of distributive justice. Thus, the question to be answered is what gives agent-relative reasons for providing compensation to some persons and not to others. It must be explained why only certain agents and not others are liable by considerations of corrective justice to provide compensation to other agents.193

Coleman himself provides one possible response to this question. In Risks and Wrongs, he highlights that “in the same way that promising can create reasons for acting, my harmful or wrongful actions can also create reasons for acting” (Coleman 1992b, p.

319). The idea is that if N’s act of appropriating the waterhole Hs is harmful or wrongful, such an act gave N reasons to act that they would not have had N not appropriated Hs. In this situation, these newly generated reasons make N liable for providing compensation to S. In this view, called by Coleman the mixed conception of corrective justice “corrective [or compensatory] justice imposes a duty to repair wrongful losses on those agents responsible for them” (Coleman 1992b, p. 329).194

Still, it remains open under what conditions wrongfulness is able to ground compensatory claims. For specifying these conditions, it is helpful to distinguish between the notions of interests and rights. The relevance of this distinction rest on the fact that

193 To be precise, if the perpetrators cannot provide compensation, it might be justified to hold those relevantly connected with them responsible for providing compensation. These people are considered secondary bearers of the duty to provide compensation (Meyer 2018, pp. 119-120). In Chapter 2 (Section V), I argued for a specific way of explaining how currently living members of, for instance, the Argentine state are relevantly connected with the direct perpetrators of the Conquest of the Desert. 194 Or, at least, on the secondary bearers of the responsibility of providing compensation when they are relevantly connected with the primary ones. 166 although setting-back interest is always harmful, not all harmful actions are also wrongful. The distinction starts by understanding that interests are components of the well-being of persons. Thus, thwarting or setting back persons’ interests constitutes harming them (Feinberg 1984, p. 34). However, not all harms make people liable for providing compensation. Suppose I steal your bike, and I develop an interest in using it every day. In this case, I cannot assert that I have valid claims for compensation if, by lawful means, you recovered your bike even if I have been harmed because my interest in using your bike has been thwarted. For a claim for compensation to be justified requires that the injurer has affected an interest important enough for justifying the existence of rights. In Coleman’s view, “part of what that means is that losses arising from actions contrary to the constraints imposed by rights ought to be repaired in justice” (Coleman 1992b, p. 331). If we endorse, for instance, Joseph Raz’s interest theory of rights, this would be because violating a right means not only that someone has been harmed but also that some duty has been breached.195 As I explain in detail below, in most cases, breaches of these types of duties give rise to fallback or secondary compensational duties.196

In this view, people are liable for providing compensation when they wrongfully harm someone. Imagine again that I have stolen your bike. By stealing your bike, I have not only harmed you, but I have also breached the duty not to use your bike without your permission (you have a right that protects you against this kind of behavior). This breach of duty gives me reasons to compensate you. If a bystander gives you a new bicycle exactly like the one I have stolen from you, no one (I think) would claim that I no longer have reasons for compensating you. Similarly, when in Waldron’s second waterhole example, members of group N oblige S to share the waterhole Hs, the members of N

195 According to Raz’s interest theory of rights, “X has a right if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty” (Raz 1986, p. 166). 196 For Coleman, setting-back legitimate interests, which are to be understood as an intermediate category between setting back (mere) interests and violating rights, might also ground claims for compensation. Coleman asserts that legitimate interests need not entail rights. To use his example, although I might have a legitimate interest in obtaining good reviews of my writings, I certainly have no right to receive them. Still, if someone without justification or, indeed, maliciously makes a bad review based on a gross distortion of my writing, the harm I suffer may become wrongful (Coleman 1992b, pp. 330-331). To be sure, in certain context such as when I have to assess a term paper of a graduate student, this person might have a right to receive the review she or he deserves. However, the situation I believe Coleman is thinking of here occurs after some book or paper is published and available to the general public and some reader writes a bad review of it maliciously or without justification. In this case, even if my legitimate interests were affected, I do not think that I can claim a right to have the reviews I deserve. In this case, according to Coleman, someone has harmed one legitimate interest without justification, and this person can be held liable to provide compensation. 167 breached the duty of not using the waterhole Hs without S’s permission. Having breached this duty is a ground for claiming that N is liable for providing compensation to S. If, at

T1, a third group East (or E) gives group S a new waterhole, group N still has reasons for returning the waterhole Hs to S. Thus understood, this conception of compensatory justice, now the mixed conception of corrective justice, specifies not only grounds of compensation but also grounds of liability. This view asserts not only that the purpose of compensatory justice is to annul wrongful gains and losses, it also establishes that those who wrongfully caused those losses and gains are liable for providing compensation.

Two consequences can be obtained from the previous considerations for discussing how to respond to historical injustices. First, as discussed in Chapter 2, claims for compensation are not against everyone but against someone in particular. This is what Coleman calls the correlativity requirement of corrective justice. This requirement, it is helpful to recall, asserts that “the claims of corrective [or compensatory] justice are limited or restricted to parties who bear some normatively important relationship to one another” (Coleman 1995, p. 66-67). In Waldron’s second waterhole example, group S has claims for compensation only against the members of group N because only N is liable for providing compensation in virtue of the wrongdoing they performed at T1.

At a more practical level the correlativity requirement demands that those who suffered the consequences of the Conquest of the Desert have claims for compensation not against everyone but only against those who perpetrated such injustice. Therefore, indigenous people’s current claims for compensation because of the past injustices they suffered are valid only as long as victims and perpetrators of the past injustice have survived into the present. As I argued in Chapter 2, there are good reasons for thinking that such correlativity has been maintained. On the one hand, currently living members of the Argentine state can be understood as members of the same community as those who perpetrated the Conquest of the Desert and, on the other hand, currently living indigenous persons are affected not only by the lasting impacts of the past injustice, but also because many of those indigenous communities that were victims of the Conquest of the Desert continue to exist in the present.

The second consequence that derives from the fact that wrongful gains and losses have to be annulled at the expense of the perpetrator of the wrongdoing or injustice is that a moral remainder is left when other factors, such as a third party or changing circumstances, contributed to the annulment of those gains and losses. In the second 168 waterhole example, even if the state of affairs in which groups N and S share the remaining waterhole HS is considered distributively just at T3, the wrongness of the process by which group N came to share the waterhole HS with N still speaks in favor of providing compensation.

The view I am advocating here does not claim that the state of affairs in which the groups N and S share the remaining waterhole HS is, in fact, distributively just. In the light of the argument highlighted in Chapter 2 (Section I) upon which perpetrators of injustices have the duty to compensate not only for the original harm but also for those harms that might stem from its non-reparation, it might be possible to think that the situation in which the groups N and S share the remaining waterhole HS is not distributively just. In such circumstances, correcting the wrongful deviation of the baseline of justice might still require providing group S with some form of material compensation so that the deviation of the baseline of justice is rectified. Instead, the view I advocate asserts that even if circumstances changed rendering a world distributively just, for instance because not only the original harm but also those that stem from the non- fulfillment of the reparative duty is annulled, the wrongness of the process by which group N started to use the waterhole Hs still calls for compensation.

Of course, such compensation cannot consist of annulling wrongful losses and gains since changes in circumstances have already rectified them. However, symbolic measures of compensation may be owed. This point has consequences for discussing how to respond to the Conquest of the Desert in Argentina. Even if it is true that current circumstances are such that providing compensation to indigenous people would be against considerations of distributive justice (which I think is doubtful), currently living non-indigenous Argentine citizens still ought to provide measures of symbolic compensation.

V. Compensatory Justice: Grounds of Compensation

So far, by following Coleman’s view, I asserted that compensatory justice gives agent-relative reasons for rectifying wrongful losses to those entities responsible for them. In the last section, I supported the claim that losses are wrongful if they stem from harmful conduct that is also a breach of duties. However, I still have to explain which kind of interests are important enough for holding others under a duty not to set them back and how these interests can be relevant for current claims for recovering indigenous lands.

169

There are three kinds of interests indigenous people had in the late 19th century that deserve to be considered here. The first interest, discussed mainly in Sections II and

III, is directly related to considerations of distributive justice. At T1, that is, in the late 19th century, circumstances were such that indigenous people were arguably entitled to occupy, possess, and own the lands on which they lived. However, specific changes in circumstances relating to current resource availability, population size, and the Argentine economy may have caused that the considerations of distributive justice that at T1 justified indigenous people’s right to possess all the territory of Argentine Patagonia no longer have justificatory force at T3. Like in Waldron’s second waterhole example in which, after circumstances changed, distributive justice concerns speak in favor of groups N and S sharing the remaining waterhole, in the case of Argentina it might be that current circumstances speak in favor of indigenous and non-indigenous people sharing what at

T1 belonged to indigenous peoples.

Nevertheless, distributive justice concerns do not exhaust the scope of interests that can provide grounds for indigenous lands to be returned as a form of compensation. This is the why focusing only on (wrongful) gains, and losses understood as deviations of a baseline of distributive justice makes Coleman’s annulment conception too narrow. In the second waterhole scenario (II), the wrong perpetrated by the members of group N against group S creates a distributive injustice. After group N appropriates group S’s waterhole, the former causes a deviation in the baseline of distributive justice. However, group N’s wrong also causes other consequences that might constitute grounds for compensation as well.

To be fair, Waldron does not restrict the scope of those consequences that might provide grounds for compensation to wrongfully caused distributive injustices. Waldron highlights that one of the reasons why property rights are important resides in the role resources play in planning our own lives and that stealing a resource can disrupt one’s expectation about the future (Waldron 2004b, pp. 71-72). As expressed by Meyer and Sanklecha (2011), expectations play an important role in how people plan and execute their projects (p. 453). For this reason, when some party frustrates another’s expectations, the latter suffers harm that might call for compensation. The reason the frustration of people’s expectations might provide grounds for compensation is explained by Robert Goodin as follows:

170

1. People reasonably rely upon a settled state of affairs persisting (or, anyway, not being interrupted in the ways against which compensation protects them) when framing their life plans. 2. That people should be able to plan their lives is morally desirable. 3. Compensation, if sufficiently swift, full, and certain, would restore the conditions that people were relying upon, when framing their plans, and so allow them to carry on with their plans with minimal interruption (Goodin 1991, p. 152). Let’s again consider indigenous people in Argentina at the time of the Conquest of the Desert in the late 19th century. For example, past members of Pincén’s community had important plots of land in the current province of Buenos Aires before 1878, and it is reasonable to think that they expected to continue living there. To use Goodin’s phrasing, they “reasonably rel[ied] upon a settled state of affairs persisting … when framing their life plans” (clause 1). However, after Cacique Pincén was imprisoned in 1878, many members of his community were forced to move and they could no longer live according to their previous customs and practices. Suddenly, they had to adapt to being day laborers on big ranches owned by settlers (Nagy 2014b, p. 100). In this situation, the expectations the members of the community of Pincén had before 1878 were frustrated, and their life plans were interrupted. On Goodin “people should be able to plan their lives is morally desirable” (clause 2), therefore indigenous people, in this case the surviving members of the Pincén’s community, should have been compensated in order to restore the conditions they had relied on when they framed their life plans (clause 3).

However, not all expectations give reasons for compensation when they are frustrated. For this to be the case, expectations have to be legitimate. Meyer and Sanklecha (2014) have defended what they call the “complex justice view” (p. 383). In this view, for some expectation to be considered legitimate it has to meet substantive constraints that qualify pure procedural justice197 and turn it into a form of imperfect procedural justice (Meyer and Sanklecha 2014 pp. 384-386; Rawls 1999, p. 75). The purpose of these constraints is to limit the range of possible results of the procedure and, hence, to limit the scope of expectations that may be regarded legitimate (Meyer and Sanklecha 2014, p. 387).

197 Conditions of pure procedural justice obtain when 1) either there is no independent criterion for the right result or, if there is, it is not epistemically available to us; and 2) there is a correct or fair procedure able to render fair or correct outcomes (Meyer and Sanklecha 2014, p. 384; see Rawls 1999, p. 74). 171

Meyer and Sanklecha (2014; 2011) claim that for an expectation to be legitimate, in addition to epistemic validity, it has to meet the requirements of impartiality, consistency, and reasonability. According to the impartiality constraint, if a person forms an expectation based on being under certain conditions, for this expectation to be legitimate the person should allow that others in similar circumstances also act upon the same kind of expectation (Meyer and Sanklecha 2014, p. 385). According to the consistency constraint, for an expectation to be legitimate its fulfillment has to be consistent with one’s general view about justice (Meyer and Sanklecha 2014, pp. 385- 386). According to the reasonability constraint, for an expectation to be legitimate its fulfillment has to be compatible with reasonable moral principles of justice (Meyer and Sanklecha 2011, pp. 457-458).

Returning to the case of the lands the community of Pincén occupied before the Conquest of the Desert, the expectation of possessing them does not seem to be in contradiction with the impartiality constraint. For claiming that they expect to continue living in those lands, they do not need to rely on private motivations. Further, to have the expectation of possessing certain pieces of lands seems consistent with a view of justice upon which all persons that inhabit a certain territory can also possess similar pieces of lands. Finally, the view that seems to require the maintenance of the status-quo before the Conquest of the Desert, as explained in Section II of this chapter, seems to rely on reasonable principles of justice. Thus, the expectation of Pincén’s community to continue using the land they possessed before the Conquest of the Desert should be considered legitimate. Therefore, the military campaigns that caused their lands to pass into possession of past members of the Argentine state frustrated their legitimate expectations to continue possessing those lands.

The legitimate expectations argument also gives reasons for past members of the Argentine state to have returned, in the late 19th century, the lands previously occupied by indigenous people, in this case, by past members of the community of Cacique Pincén. These lands should have been returned to this community not only because stealing the lands caused a deviation in the substantive baseline of justice but also because the lands were part of the center of their lives since they autonomously organized and delineated their life plans based upon possession of the lands.

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The fact that stealing indigenous lands frustrates indigenous people’s legitimate expectations is relevant for showing that past injustices provide grounds for compensation not necessarily linked with wrongful deviations of some substantively right baseline of distribution. This is important for demonstrating that the normative force of some reasons for compensatory justice does not derive entirely from those of distributive justice. Even if the Conquest of the Desert caused deviations in some substantive baseline of justice, the reasons for providing compensation were not exclusively limited to rectifying such a deviation. In addition, there are grounds for providing compensation so that the conditions upon which indigenous people framed their life plans would have been restored.

The argument for compensation grounded on the frustration of status-quo expectations is not identical to the argument for compensation because the substantive baseline of justice has been wrongfully deviated. Although some status-quo legitimate expectations also give rise to compensation claims so that the wrongful deviation of the distributive baseline be rectified, not all violations of legitimate expectations give rise to claims whose normative force stems from distributive justice concerns. Suppose I have the legitimate expectation of not being tortured. In this case, unless we are under very specific conditions in which the distribution of torture is discussed, such an expectation has no relation at all with distributive justice considerations. Still, it is an expectation relevant for autonomously organizing and delineating my life plan. Conversely, not all claims of distributive justice are grounded on status-quo legitimate expectations. Someone who has nothing clearly has claims grounded on distributive justice concerns. However, those claims are not based on the status-quo since the current distributive situation is such that she has no good at all.

However, on Waldron, it is doubtful that the argument for status-quo expectations to be restored may serve today as a valid ground for compensation. He asserts:

If something was taken from me decades ago, then the claim that it now forms the center of my life and that it is still indispensable to the exercise of my autonomy is much less credible. For I must have found some way to live in the meantime, I must have developed some structure of subsistence. And that will be where my efforts have gone, and where my planning and my practical thinking have been focused [emphasis in the original] (Waldron 2004b, p. 72).

In the case of Argentina and the Conquest of the Desert, the issue is that in many cases, those indigenous persons who are claiming that certain lands be returned to them

173 have not possessed the lands for more than 130 years nor have they had legal title. Thus, even if at T1 their legitimate status-quo expectations grounded claims for compensation because of the lands being the center of their life, these grounds for compensation might no longer have moral weight given that now, at T3, the center of their lives is likely elsewhere.

Notwithstanding the previous considerations, the expectations-based argument for specifying grounds of compensations is important for dealing with more recent cases in which indigenous people are either in possession of some pieces of land or were recently evicted. It is reported that, in 2006, 60% of indigenous communities of Argentina were in a situation of juridical precarity because they did not have the legal title of the lands they possessed (Osorio and Tedeschi 2006, p. 37). In part for this reason, that year the Argentine Congress enacted Law Nº 26 160 that established the suspension of all evictions or expulsions of indigenous people currently publicly possessing what they consider their ancestral lands. Initially, the suspension was planned for four years pending a government conducted official study. However, given that the Argentine government has not fulfilled its commitment of conducting a study, the period was extended in 2009, 2013, and 2017 (Law Nº 27 400) until November 21st, 2021.198

Consider the case of the Mapuce community Campo Maripe. Since 1927 this community has claimed to possess approximately 18,000 hectares in Neuquén, a province that was formally created in 1955 (Radovich 2017, p. 97). The case of this community and the communities Paynemil and Kaxipayin, that reside in the same region, are interesting because they are located near the oil field Vaca-Muerta. Vaca-Muerta is the second largest deposit of shale gas and the fourth-largest shale oil deposit in the world.199 According to official estimates, the exploitation of this field would allow Argentina to have a minimum annual GDP growth of 0.3 - 0.4 % and accumulative growth of 4.5- 4.8 % until 2030.200 This perspective growth is quite important for a country where 42% of the population lives in poverty. In such a situation, it might be that, after considering all the reasons that apply to the case, justice will require that those indigenous communities

198 In 2017 some national newspapers reported that 132 judicial decisions of eviction are suspended because of that law. See (La Nacion, December 10th 2017] https://www.lanacion.com.ar/politica/hay-132- sentencias-de-desalojo-a-comunidades-indigenas-nid2090022/ 199 See the official information in https://www.argentina.gob.ar/vaca-muerta [Accessed May 5th, 2021].See also Valiente & Radovich (2016, pp. 50-532). 200 [Telam June 9th, 2018] https://www.telam.com.ar/notas/201806/288198-estudio-oficial-destaca-el- impacto-economico-del-desarrollo-de-vaca-muerta.html (Accessed June, 20th, 2021) 174 can no longer live on those lands. Suppose that after considering all the reasons at stake, it is concluded that indigenous people have to live elsewhere. In that case, the argument based on the status-quo expectation provides grounds for them to be compensated. In particular, these indigenous communities should be provided with the necessary means to re-establish their lives in conditions as close as possible as those they enjoyed before.201

Of course, from the fact that in some cases indigenous communities might have to leave their lands because of significant distributive justice concerns, it does not follow that this possibility should exemplify some rule. The possibility of paying compensation by no means should be understood as a reason that justifies in all or other circumstances the eviction of indigenous people from the lands they occupy.202 On the contrary, this possibility applies only to exceptional cases in which it is undoubtedly true that without those lands, many currently living indigenous and non-indigenous residents of Argentina would likely be prevented from leaving conditions of extreme need.

The argument for the status-quo expectation as a ground for compensation is relevant for the resolution of other cases currently taking place in Argentina, specifically when indigenous people make claims against private owners to have their ancestral lands returned. In one of such case, called Huisca-Antieco, the National Department of Justice and Work recognized that the lands under dispute belonged to a Mapuce community and were unjustly taken from the community in the past. In this case, the main problems were that, a private company had acquired the legal title to the land legitimately, and the indigenous community was not living on the land under dispute when the case was decided.203 To solve the situation, the state purchased the land from the private company, and it gave it to the Mapuce community (Ramos & Delrio 2005, p. 92).

201 I am not claiming that this has to be the case. Instead, my claim is that if these indigenous communities have to move from those lands, they should receive compensation. The indigenous communities that live in these regions strongly oppose to the exploitation of resources such as gas an oil by fracking (Radovich 2017). It is less clear if they also oppose to more conventional forms of oil extraction. If it is the case that they do not oppose resource extraction by a means other than fracking then, these indigenous communities should receive revenues as well as being entitled to participate in decisions regarding extraction of the resources at stake. For instance, the Confederation Mapuce of Neuquén argue for “a new model of the state in which hydrocarbon, mining, forestry resources, etc., are administered in an inter-political way, so as to generate a transfer of control and administration of the resources to the Mapuce People” (Piciñam, et al. 2010, pp. 53-54). They also claim that when some previously performed extraction has already polluted and harmed the land, the state should remediate the situation (Piciñam, et al. 2010, p. 80). 202 This possibility is more restricted when the compensation to be granted cannot account for the recipient being able to pursue the same life plan that was interrupted but only another of equivalent value. See Goodin’s (1989) distinction between means-replacing and ends-displacing compensation (pp. 60-67). 203 The Mapuce community was not living in those lands due to the fact that it has been evicted a couple of years before the public decision (Ramos & Delrio 2005, p. 85). 175

The Huisca-Antieco case has been reinterpreted by indigenous people as “the worst agreement” as according to them the expropriation of lands is only a way of “laundering with money a situation of abuse” (Ramos & Delrio 2005, pp. 92). For this reason, many indigenous people’s claims strive not only to obtain legal and communal title of their lands, but also to nullify all legal titles acquired in the past by non-indigenous people (Ramos & Delrio 2005, pp. 92-93). Indigenous people believe that the fact that the state pays money for obtaining those lands that will be returned to them is a way of legitimizing or justifying the unjust dispossession they suffered in the past (Ramos & Delrio 2005, p. 95). However, if the frustration of legitimate status-quo expectations is a justifiable ground for compensation, it is not necessarily true that when the Argentine state expropriates lands legally owned by private non-indigenous persons that the state justifies past dispossessions. The Argentine state might simply be providing compensation for the (justifiable) frustration of a person’s legitimate expectation in continuing to use these lands.

So far, I have considered two kinds of interest that can constitute grounds for compensation concerning lands that were misappropriated by the past members of the Argentine state during the Conquest of the Desert. I considered indigenous interest in having a certain share of the good at stake, land, and their interest in pursuing their life plans based on status-quo expectations. I asserted that none of these interests seem generally able to justify that indigenous people should recover their ancestral lands. However, there is a third interest that can also help in specifying grounds for compensation in the sense of providing reasons in favor of returning lands to indigenous people.

Lukas Meyer (2001) argues that being a member of a group can be relevant for instrumental as well as for intrinsic reasons and that, in some cases, to have a specific territory is a precondition for the members of such a group to realize the value of the group membership (p. 288). Instrumental reasons favor the value of being a group member if certain specificities of a given culture are of high relevance for the individual well-being. Concerning the intrinsic value of groups, Meyer (2001) asserts that particularly valuable features may give the group intrinsic value for its members. For instance, as he asserts, group members can give intrinsic value to the fact of living in a just or tolerating society, and at the same time that they can consider that living in a just

176 or tolerating society is instrumentally valuable because it contributes to promoting other values such as stability (p. 270).

Concerning Mapuce people they plan their lives based on the notion of Kvme Felen. This notion goes beyond concerns about levels of well-being and constitutes a holistic system of life that gives context for forming specific life plans (Piciñam et al., 2010, p. 12). “KVME FELEN is the way of life of the Mapuce people, which means being in balance with oneself and with others NEWEN [entities], as part of the WAJ MAPU [territory]” (Piciñam et al. 2010, p. 12). From the notion of Kume Felen Mapuce people derive principles and norms upon which they frame their own life plans. These principles include a kind of universal law, Az Mapu, that mandates endorsing an abstract harmonic relationship between human beings and nature that can only be made manifest through the possession of specific lands. Mapuce people value being members of their communities not only because membership in these groups can be instrumentally valuable for framing and fulfill their life plans but also because they attribute intrinsic value to living in a community organized around the notion of Kume Felen (Piciñam et al. 2010, p. 40).

However, when the Conquest of the Desert took place and indigenous lands were misappropriated by past members of the Argentine state, many members of indigenous peoples could no longer realize the value of group membership. For instance, most surviving members of the community Pincén that were forcibly expelled from their lands were dispersed and forced to work as cheap laborers on settlers’ ranches or in other industries (Nagy 2014b, p. 100-102). Since Kume Felen requires a harmonic relationship with nature, and the labor they had to perform did not respect this form of relationship with the land, clearly indigenous people could not have fully realized the value of group membership.

Because their lands were stolen, indigenous people were prevented from fully realizing the value of group membership. This circumstance provides a further ground for compensation. In the late 19th century, the lands they had previously occupied should have been returned, not only to correct the wrongful deviation of the baseline of justice and to allow them to re-establish their life plans based on the status-quo expectation but also because they needed those lands to realize the value of group membership fully. As before, there is a partial overlap between grounds for compensation. Indeed, the legitimate expectation in continuing to possess some portion of land X can be based on the fact that 177 having such a portion of land X is required to realize the value of group membership fully. However, to realize the value of group membership fully need not require the possession of such a plot of land X. It could be the case that for realizing the values of the group other plots of land would be sufficient.

Suppose group A possessed the parcel of land X at T1. This group made the parcel X the center of their life. They organized their lives based on the legitimate status-quo expectation of continuing use of the land in order to fully realize the value of group membership, i.e. endorsing and expressing a harmonic relationship between human beings and nature. However, group B seized group A’s land in a way that their legitimate expectation of continuing to live there to realize the value of group membership fully is frustrated. At T2, let’s say 130 years later, current members of group A claim land X currently held by descendants of group B. At T2, the argument based on the status-quo expectation seems to no longer have moral weight. The claim upon which the parcel of land X is the center of the members of group A’s life is less credible. They might have found another way of living and their practical planning and thinking must have been focused elsewhere (Waldron 2004b, p. 72).

However, from this it does not follow that current members of group A do not have a valid compensation claim for receiving a parcel of land necessary for them to realize the value of group membership fully. If there is a special connection between the current members of group A and the land, it might be that such land has to be returned to them. For instance, for Mapuce people, Kume Felen is formed by what they call tuwvn (belonging or to come from) (Piciñam et al. 2010, p. 40). Tuwvn refers not only to the place of origin of each Mapuce, but it also entails the relevant influence that a specific piece of land has on the predispositions and potentialities of those who have historical links to it (Di Giminiani, 2015:494). Mapuce people consider land, particularly the territory, as a living organism which contains a physical and a spiritual component. The Mapu (territory) is itself a very real and participatory aspect of Mapuce’s daily lives (Webb, 2014:228). To call themselves Mapuce is to invoke a necessary tie with a specific geographic and spiritual space (Webb, 2014:222). The relevance of tuwvn for claims for recovering their lands is that, as long as it endured into the present, the specific piece of land still plays a role in ruling the forms or system of life of the particular Mapuce community. Thus, if the tuwvn between the members of a certain Mapuce community and

178 a specific piece of land endured into the present, then there are good reasons for those lands to be returned.

However, the argument for returning a specific piece of land X is not based on the legitimate status quo expectations of the members of a specific indigenous community.

On the contrary, the argument based on the status quo expectation at T2 seems to support the view that current members inhabiting a specific parcel continue living there since they have developed their life plans based on the status quo in which they possess that parcel X. Thus, if the parcel X has to be returned to the indigenous community in order that they can fully realize the value of group membership, there are reasons for thinking that expectations of current members of group B should count normatively, probably by giving them claims for compensation.

Still, the connection between the Mapuce people and specific pieces of land is not something that cannot be broken. As they sometimes assert, when the tuwvn was broken or interrupted, they had little reason to return to their ancestral lands (Webb 2014, 231- 234).204 When this is the case, it might be appropriate to allow current (non-indigenous) inhabitants of, for instance, the parcel X to continue living there provided that another piece of land is given to the indigenous community so that they can realize the value of group membership as much as possible.

VI. Grounds and Modes of Compensation: The Continuity Thesis

So far, I have advocated for a duty to provide compensation if wrongful gains and losses have been caused. Gains and losses ought to be understood not only as wrongful deviations of some baseline of distributive justice but also as wrongful harms to either legitimate expectations based on status-quo conditions or to collective ways of life for which the possession of land is a pre-requisite. Likewise, I asserted that losses are wrongful if they arise as a consequence of breaches of duties. Thus, the next question is, what should be done to compensate or repair those losses that some entity has suffered as a consequence of the fact that another entity breached some duty? How, in other words, can modes of compensation or recovery be specified?

One plausible answer to this question is provided by what John Gardner calls the continuity thesis. According to this thesis, “what I should do by way of repair is whatever

204 How to assess whether tuwvn endures into the present is a further problem that I cannot discuss here. 179 would bring me closest, given how things now are, to doing what I should have done in the first place” (Gardner 2018, p. 135). The continuity thesis is based on the distinction between having a duty to do something and the reasons why someone had such a duty. According to the continuity thesis, for correcting or compensating a wrong, we should search for “the best conformity still available with the reason or reasons that went unconformed to when I breach the primary duty” (Gardner 2018, p. 115). These reasons, just as they shaped the primary duty, after the breach of it, also shape the secondary duty to correct the wrong. Hence, to know how the wrong should be repaired, one needs to know the reasons why one had the primary duty of not committing such wrongdoing. Once we know those reasons, we would be likely to know the next-best conformity with those reasons and thus the right way of correction or compensation.

According to the continuity thesis, what constitutes the specific mode of compensation that is owed “depends on what reasons went unconformed to when the [primary] duty went unperformed” (Gardner 2018, p. 100). Thus, for identifying which specific form of compensation is owed to indigenous people, we have to ask for the reasons why settlers and the Argentine state were obligated not to make incursions and appropriate the lands that belonged to indigenous people in the late 19th century. The relevance of identifying these reasons is that although the primary obligation might not be fulfilled anymore, we can still contribute to the satisfaction of those reasons by fulfilling other obligatory actions built on the same reasons.

Allow me to elaborate. In the previous section, I highlighted that the theft of land indigenous people suffered in the past provides at least three grounds for compensation. These grounds are based on some of the reasons past members of the Argentine state had for not appropriating indigenous lands in the 19th century. Thus understood, one might think that the reasons that shaped the primary duty of the past members of the Argentine state not to appropriate indigenous lands were the following: 1) that the Argentine state had the obligation not to appropriate indigenous lands; 2) that a wrongful deviation of the baseline of distributive justice would be caused if the Argentine state appropriated indigenous lands; 3) that the members of indigenous people’s life plans autonomously elected upon the legitimate expectation in continuing possessing their lands will be frustrated; 4) that appropriating indigenous lands would prevent indigenous people from fully realizing collective and valuable ways of life for which the possession of land is a pre-requisite.

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As we know, once the wrong was done, conformity with reason (1) is no longer possible. Once the Conquest of the Desert was performed, the duty of not appropriating indigenous lands could no longer be fulfilled. However, what about the other reasons? In the late 19th century, it seems that, at least partially, conformity with all the other reasons could have been possible by returning indigenous people all their lands. However, as it is also recognized by Gardner, “as other aspects of the background situation change, less conformity with the ex hypothesi unconformed-to reasons is available, and so less repair is possible” (Gardner 2018, p. 101). Hence, if circumstances change, performing a careful search for the best possible way of conforming to those reasons still available is required.

Let us suppose that a few decades after the Conquest of the Desert ended, conformity with the reason upon which stealing those lands would undermine indigenous people’s status-quo expectations is no longer possible. Additionally, given that some (arguably) innocent newcomers had started to live on those lands, returning them now would frustrate these newcomers’ status-quo expectations. In such a situation, it seems that returning the lands indigenous people previously occupied might no longer be an obvious option since countervailing reasons have appeared. However, this change in circumstances by no means speaks against indigenous people being compensated. It only speaks against returning all the specific lands they previously occupied as a form of correction or compensation. Now, we have to find the next-best option which conforms with the reasons why the past members of the Argentine state had the primary duty of not stealing those lands from indigenous people. In this regard, the only thing that has changed is the next-best available way to conform to the reasons why the past members of the

Argentine state had the primary duty of not stealing lands from indigenous people.

Let us return to those claims that the Indigenous Community Cacique Pincén is currently making. Is it possible that the present members of Argentine state can conform to at least some of the reasons why past members had the duty not to appropriate the communal lands of Cacique Pincén? As I argued in the previous section, at least one reason can still be conformed to. At T1, members of the community of Cacique Pincén required some pieces of land to realize the group’s value fully. This was one of the reasons that shaped the duty of past members of the Argentine state not to appropriate these lands. Still, it is a reason that can still be conformed to today. Giving the indigenous community some pieces of land can ensure that they can live according to their cultural patterns and fully realize the value of group membership. This reason, as long as it can still be

181 conformed to, not only justifies the existence of the duty to provide compensation to them but also specifies a particular mode of doing so.

In this case, the Indigenous Community Cacique Pincén should receive those pieces of land necessary for their members to fully realize, individually and collectively, the value of group membership. For instance, in referring to some lands received by the community, the current Logko Maria Isabel Araujo-Pincén asserted in 2017: This [reception of land] is an improvement for the indigenous community [Cacique Pincén] since we were claiming for many years for [measures for the satisfaction of] the basic needs of our members, such as a housing program. … Then, since 2005 we are claiming for [what we call] the education project because we still do not have a place to express and develop our [group] identity. 205

The planned housing program and the acquisition of the legal title to specific pieces of land for expressing the community’s group identity can be understood by both members of the indigenous community as well as the municipality of Trenque-Lauquén, as measures of compensation for the injustices the community suffered in the past.206 This would be a way of providing compensation upon which some of the reasons why past members of the Argentine state had the duty not to appropriate those lands are to be conformed to. As Gardner argues, the continuity thesis “is the thesis that the secondary obligation is a rational echo of the primary obligation, for it exists to serve, so far as may still be done, the reasons for the primary obligation that was not performed when its performance was due” (2011, p. 33).207

VII. The Strength of the Reasons for Symbolic Compensation However, 2020 and 2021 are relevantly different from 2017, and are (hopefully) aberrant years. As highlighted above, at the close of 2019, Argentina’s economy was in dire shape. COVID-19 had forced the Argentine government to take drastic measures that led to an economic slump and an increase in social inequality. This situation seems to be

205 Interview with the Logko Maria Isabel Araujo-Pincén taken from the official web-page of the municipality of Trenque-Lauquen. https://www.trenquelauquen.gov.ar/audios/isabel-araujo-de-la- cominudad-indigena-cacique-pincen-nos-comenta-acerca-de-un-convenio-que-firmo-su-comunidad-con- la-municipalidad/ (accessed August 31st, 2020) 206 La opinion [April 13th, 2019] http://laopinion.com.ar/hay-lugar-para-todos-no-puede-faltar-nadie-en- este-pueblo-si-no-dejaria-de-ser-trenque-lauquen/ 207 I will say more about the distinction between primary and secondary duties in Chapter 7. 182 recognized by the current Logko of the Indigenous Community Cacique Pincén, who expressed on July 11th, 2020:

With the community we are experiencing this whole COVID-19 situation, we are supporting our families' social aspect with a lot of work. Because of this [COVID-19] issue, not much could be done with respect to the projects that had started before ... This year we thought we were going to be able to start with the design of the houses. And this year, we also thought to present the project of 20 houses for approval at the Housing Institute [of the province of Buenos Aires], but it was not possible.208

Current circumstances seem to justify putting on hold the task of providing compensation for historical injustices. In a situation of scarcity, it seems reasonable that the government of Argentina should prioritize that everybody has enough. Does it follow that the past injustice was superseded? Under current circumstances, it seems that the reasons for distributive justice outweigh those that stem from providing compensation to indigenous communities for the past injustices they suffered.

I do not think that this fact by itself can supersede past injustices. Timothy Waligore (2017) distinguished between final and dormant supersession (p. 224). According to the former, changing circumstances supersede historical injustices for all time. In contrast, “a dormant supersession allows claims to re-arise when circumstances change [again]” (Waligore 2017, p. 224). With this distinction in mind, it seems reasonable to accept that, even if, for the time being, the Argentine state is not currently obliged to provide compensation, if circumstances change again, indigenous claims for receiving their lands back can reappear. In such a circumstance, it can be possible that some of those reasons why the past members of the Argentine state had the duty not to appropriate the lands of, for instance, the indigenous community of Cacique Pincén could still be conformed to.

However, what if no reason for why past members of the Argentine state had the duty not to appropriate indigenous lands can ever be conformed to again? Does this mean that no measure of compensation is owed? No. It is true, however, that in such a case material compensation seems to be impossible. Still, symbolic compensation remains an open possibility. When I advocated for the continuity thesis for specifying modes of

208 “El objetivo ahora es poder, desde lo político, continuar luchando por todos nuestros derechos” in La Opinión [July 11th, 2020] http://laopinion.com.ar/el-objetivo-ahora-es-poder-desde-lo-politico-continuar- luchando-por-todos-nuestros-derechos/ 183 compensation, I asserted that compensatory duties are reparative since they attempt to conform to some of the reasons one had the primary duty of not committing injustices or wrongdoings. However, as Gardner recognizes, “the amends we make can only ever be incomplete. By hypothesis, when the continuity thesis applies, the time for perfect conformity is over” (2018, p.127). There is always a moral remainder. The moral remainder is explained by the fact that some of the reasons one had the primary duty of not committing the wrongdoing can no longer be conformed to or, if they can, such conformity can only be imperfect. In this sense, a moral remainder exists whenever some duty is breached. This moral remainder is something that symbolic compensation can help counteract.

Of course, if at that time material compensation can be provided in a way in which most of the reasons why one had the primary duty of not committing an injustice can be conformed to, the duty of providing symbolic compensation does not have too much weight. If, after the Conquest of the Desert, past members of the Argentine state would have returned indigenous people their lands, at that time additional symbolic compensation would not have been of much importance, at least not as much as it would have been if were not possible to provide that or other forms of material compensation. However, measures of material compensation were rarely provided, and now, because of changing circumstances, giving indigenous people material compensation is more challenging. Now, there are more reasons where conformity is impossible. This change in circumstances might increase the weight of the duty to provide symbolic compensation.

th At T1, that is the late 19 century, what gave reasons to provide measures of symbolic compensation was the fact that, with those circumstances C1, some of the reasons why past members of the Argentine state had the duty not to appropriate indigenous lands could not be conformed to. The weight of such a duty stemmed from the weight and number of reasons that were impossible to conform to and from how imperfect the conformity was regarding those reasons that were still available at T1. However, changes in circumstances have caused that, in the year 2021, most if not all of those reasons can no longer be conformed to. The weight of the duty to symbolically compensate victims of injustices depends upon the weight and number of reasons that can no longer be conformed to by means of material compensation. Thus, it seems that now at T3, with circumstances C2, the duty of non-indigenous present living members of the

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Argentine state to provide symbolic compensation to indigenous peoples is weightier than it was in the late 19th century.209

Conclusion

In this chapter, I argued that with respect to indigenous land claims, distributive justice concerns do not supersede by themselves reasons for compensatory justice. I highlighted that Waldron’s version of the supersession thesis gives rise to a principle upon which backward-looking reasons of compensatory justice no longer have moral weight or, at least, they are overtaken as soon as they conflict with forward-looking, in particular, need-based reasons of distributive justice. I argued that if Waldron intends to provide considerations on corrective or compensatory justice (in addition to those of distributive justice), his version of the supersession thesis has to be constructed along similar lines to Coleman’s annulment conception of corrective justice.

In the annulment conception, norms of compensatory justice demand creating a state of affairs in which wrongful deviations in the distribution of goods are rectified. Thus, in this conception, it does not matter that the rectification of the deviation in the distribution of goods has been carried out by the perpetrator of the injustice or by a mere change in circumstances. If this is so, then, for both Coleman’s annulment conception and Waldron’s conception of the supersession thesis, reasons of compensatory justice seem to derive their normative force from those of distributive justice. Thus, it is not strange that for Waldron, forward-looking reasons of distributive justice are able to supersede historical injustices in situations of need.

However, I argued that the obligation to provide compensation to indigenous populations remains insofar as some of the reasons why past members of the Argentine state had the duty not to perpetrate the Conquest of the Desert can still be conformed to. The general form of the thesis I have been advocating is that the obligation to redress historical injustices remains as far as some of the reasons why the perpetrators of the historical injustice had the duty not to perpetrate it can still be conformed to. In particular, I showed that backward-looking reasons for providing compensation do not disappear because present people live in situations of need and scarcity. This is because gains and losses to be rectified are not limited to deviations of a certain baseline of distributive

209 In Chapter 7 I qualify this view (Section IV). 185 justice. In particular, I argued that legitimate expectations and the intrinsic value of group membership (whose fulfillment might require the possession of land) can also be grounds for compensation. This is important because even if changes in circumstances annul gains and losses associated with deviations in the baseline of distributive justice, the effects of the injustice with respect to the frustration of legitimate expectation and those associated with the fact that indigenous people cannot fully realize the value of group membership might still need to be compensated. I also argued that Jules Coleman’s annulment conception of corrective justice and Waldron’s version of the supersession thesis are too wide because they do not specify who is responsible for providing compensation. They cannot account for the correlativity requirement that, as the post Risks and Wrongs Coleman asserts, lies in the core of “any plausible account of corrective justice” (1995, p. 66). This requirement implies that demands for compensation are restricted to parties who bear some normatively important relationship with one another. I argued that having wrongfully harmed others creates such a normative relationship between perpetrators and victims of injustices and places the former in the role of being the primary bearers of the duty to provide compensation. For this reason, when changes in circumstances (and not the perpetrators of the injustice or someone relevantly connected with them) annul the consequences of injustices, a moral remainder is left. This moral remainder also gives reasons for compensation. Of course, such compensation cannot consist in rectifying the deviation in the substantive baseline of distributive justice since it already has been rectified by changes in circumstances. However, symbolic measures of compensation may be owed. If this is accepted, then the version of the supersession thesis I have been advocating asserts that current circumstances of need and scarcity do not change the temporal orientation of justice but only the specific measures needed for complying with justice’s demands.

Thus understood, the supersession thesis meets two of the requirements stated in introducing this work, namely [i] necessity and [ii] compensation. This is because the version of the supersession thesis I defended prioritizes the concern for those people who are below the relevant threshold of well-being (necessity requirement). This is clear since it does not recommend (and, in fact, discourages) the provision of material compensation when doing so might cause people to fall below the relevant threshold of well-being. Indeed, it accepts that under circumstances of scarcity, injustice can suffer a supersession- like effect. However, it would be a case of what Waligore calls dormant supersession

186 since claims for material compensation can re-arise when circumstances change again. On the other hand, situations of scarcity do not preclude the provision of symbolic compensation to the victims of the injustice. Therefore, since the thesis allows for historical injustices to be compensated even when the perpetrators live below the relevant threshold of well-being, it meets the [ii] compensation requirement.

Since I argued that a present circumstance of need could not by itself cause the supersession of historical injustices and that claims for material compensation can re- arise if circumstances change again, then it seems that perverse incentives are reduced for committing injustices. Part of the perverse incentives for committing injustices stems from the fact that one might hope for a future change in circumstances that shift the temporal orientation of justice. If the duty to provide compensation survives in a situation of need, then at least part of those incentives are reduced. For this reason, the thesis I defended meets the requirement [iii] of moral hazard. However, the case of the Conquest of the Desert is not a straightforward example for analyzing whether historical injustices should be compensated in distributively just worlds. This is so simply because the case occurred in what today is Argentina and currently living conditions in the country are unjust. Therefore, to assess whether the new version of the supersession thesis also meets the fourth requirement [iv] distribution, I need another example. For this, I will focus on climate change. The following three chapters deal with this issue.

187

CHAPTER 5 CLIMATE CHANGE AND INTERGENERATIONAL JUSTICE

Introduction

So far, I advocated for a general principle according to which the obligation to redress historical injustices remains as long as it is still possible to conform to some of the reasons why the perpetrators of the historical injustice had the duty not to perpetrate it. In the last chapter, I asserted that the case of the Conquest of the Desert is not a straightforward example for analyzing whether historical injustices should be compensated in distributively just worlds. This is so simply because the case occurred in what today is Argentina and currently living conditions in the country are unjust. Therefore, to assess whether my conception of the supersession thesis also meets the fourth requirement [iv] distribution, I need another example. For this, I focus on climate change.

Unlike the situation of indigenous people in Argentina in which we dealt with past wrongs, regarding climate change, “we are faced with the situation that earlier generations of one community (the North) directly affect something to the detriment of later generations of the other community (the South)” (Meyer & Roser 2010, p. 230). In particular, “highly industrialized countries are causally responsible for more than three times as many emissions [of greenhouse gases] between 1850 and 2002 than developing countries” (Meyer 2013, p. 603). Further, since 1850 more than half of the total amount of released carbon dioxide has been emitted by the United States and Europe (Gough 2017, p. 26). These emissions have had and will continue to have more negative effects on developing countries than on members of developed countries (Gough 2017, pp. 24- 27).

As explained in the introduction of this work, these considerations seem to ground a duty for currently living of developed countries to redistribute benefits and harms that stem from historical emissions with developing countries. However, developed countries are not fulfilling this duty. Still, if circumstances change so that in the future the climate

188 problem is resolved, the duty to redistribute benefits and harms might lose its justification. In such a case, it will be superseded by changing circumstances.

This fact generates certain normative problems that the supersession thesis should respond to. First, there are perverse incentives for not fulfilling this duty because changes in circumstances might cause this duty to disappear. We should assess whether the supersession thesis can respond adequately to this situation as well as demanded by the moral hazard requirement [iii]. Second, changes in circumstances might cause a world in the future that is distributively just in regard to the climate. In such a case, providing compensation for not having fulfilled a redistributive duty can alter the just distribution of resources. The version of the supersession thesis to be sustained should prevent us from claiming that carrying out compensation measures in cases like this requires turning a distributively just world into a distributively unjust one (distribution requirement[iv]). The second part of this work responds to these worries.

The distinctive features of climate change require that we consider how mitigation and the adaptation costs should be globally or internationally distributed (Kolstad et al. 2014, pp. 215-219). Mitigation refers to how to best prevent or ameliorate climate change. Adaptation concerns those measures required to cap and minimize the adverse effects of climate change that have not been prevented (Meyer and Roser 2006, pp. 224-225). Since anthropogenic climate change is associated with greenhouse gases (GHGs) emissions, a considerable part of the discussion is about how emissions ought to be distributed among countries. However, unlike other resources such as land, there is no natural limit for our emitting GHGs. The issue is that discussions of distributive justice typically require that the resource to be distributed is relatively scarce. If the resource is unlimited and accessible to all, discussions regarding distribution seem of little relevance. Thus, we should analyze whether emissions ought to be considered a limited resource in a similar sense as land.

In this chapter, I defend that, although there is no natural limit to our GHG emissions, from that fact it does not follow that there is not a limit, only that such a limit is not given by natural fact. By relying on Lukas Meyer’s writings (2013; Meyer and Roser 2006, 2009; Meyer and Stelzler 2018; Meyer and Pölzler forthcoming), I argue that intergenerational justice considerations can help specify such a limit. I contend that the upper limit to the GHGs we are allowed to release should be set as to not wrongfully

189 cause future people to suffer severe harm.210 Thus, I must explain, first, how our emission- generating activities can harm future people and, second, under what conditions such harm is also wrongful.

In Section I, I defend this view. First, I argue that we have reasons for considering emissions a limited resource because by engaging in emissions-generating activities, we may cause bad consequences for future people. Second, I argue that we can be under a duty not to cause these bad consequences to future people by engaging in emission- generating activities because in doing so we can violate their future rights not to undergo these consequences. Third, I advocate for the threshold conception of harm. I explain that if we do not reduce our emission levels, our emission-generating activities can harm future people in this sense. Fourth, grounded on Meyer and Pölzler’s forthcoming paper, I assert that need-based sufficientarian considerations should inform the threshold of intergenerational justice.

Once I have defended that intergenerational justice considerations provide normative reasons for considering GHG emissions a limited resource, in Section II I provide a criterion in virtue of which the remaining permissible emissions should be globally distributed. In this section, I argue that before considering historical emissions, the remaining global carbon budget (GCB) ought to be distributed according to the equal- per-capita view.

In Section III, I assert that given that present members of developing countries will suffer worse consequences of climate change than their counterparts in developed countries, and that they have obtained fewer benefits from historical emissions, there are reasons for thinking that they should receive a larger share of the GCB. This claim supports that present members of developed countries have a greater responsibility, and accordingly more significant burdens, in remediating the current climate problems. However, present members of developed countries can object that it is unfair that they bear more significant burdens since many emissions were released not by themselves but by their ancestors, and that many emissions were released in a state of excused ignorance. Hence, they can argue that they should not bear a greater burden in remedying current climate change. In response to these objections, grounded on the view provided in Chapter

210 When someone is in a harmed state, this person is suffering harm. For this reason, I use these two expressions interchangeably. 190

2, I argue that present members of developed countries can be held responsible for remediating states of affairs caused by those ancestors who bequeathed them public goods and a form of what Meyer (2005) calls public bad linked to GHG emissions.211

I. Causing Bad Consequences to Future People

In this section, I argue that emissions ought to be considered a limited resource and that the upper limit of our permissible emissions should be set as not to wrongfully harm future people. The argument opens by noting that there is a link between the warming of the climate and certain atmospheric emissions, namely GHGs. Two features about emissions should be highlighted: First, GHGs stay in the atmosphere for a considerable period of time. For instance, carbon dioxide, which represents ¾ of total GHG emissions, takes hundreds or even thousands of years to disappear (Gough 2017, p. 22). Second, concerning how emissions affect global warming, it does not matter much where they have been released (Meyer and Roser 2006, p. 223). Given these facts, the distribution of the costs of dealing with climate change should be carried out at both the intergenerational and international levels. However, before thinking about how a certain good has to be distributed, we should explain or conceptualize the good to be distributed.

When we think of other goods subject to distributive concerns such as land, we do not regard them as important in themselves but only because of their connection with some value, such as people’s well-being or autonomy.212 Regarding emissions or emission rights, something similar occurs. We do not care about the resource in itself but only for its connection with some important value. As explained by Meyer, “causing emissions is a condictio sine qua non of most of our actions that potentially contribute to our well-being” (2013, p. 600). Since virtually all human activities now require emission directly or indirectly, there is a strong connection between emission-generating activities and personal well-being. With the expression emissions rights, the reference is not to emissions themselves but to “permissions to perform emission-generating activities that regularly benefit those who engage in these activities” (Meyer 2013, p. 600). Thus

211 Although in this and the next chapter I hold currently living members of developed countries remedially responsible for the current state of the climate, this does not imply that currently living members of developing countries bear no responsibility at all. The claim is that the former bear greater responsibility due to historical emissions. This is in line with the principle of common but differentiated responsibilities in dealing with climate change as stated in Article 2, Paragraph 2 of the UNFCCC. 212 See Chapter 4. 191 understood, the goods to be distributed are the benefits that stem from emission- generating activities.

However, at first, there seems to be an important difference between emissions and other resources like land. While land is a scarce resource, there is no natural limit for emitting GHGs. Based on this observation, it might be objected that while there are good reasons for thinking in distributive policies regarding resources such as land, there is no point in discussing principles of distributive justice concerning emissions. The reason for this is that distributive justice concerns arise only when we are operating under conditions of moderate resource scarcity, which is one of Rawls’ (1999) circumstances of justice (pp. 109-112). Since land is a relatively scarce resource, we should think about how our institutional scheme (at both the domestic and international or global level) ought to be designed to ensure a fair distribution of the resource. However, since there is no natural limit to emitting GHGs, the resource does not seem relatively scarce. Moreover, if the resource is not scarce, there seems to be no reason for thinking about distribution or redistribution of the good and further discussion thereof seems to be beyond the scope of justice.

The response to this objection is as follows. From the fact that there is no natural limit to our emissions, it does not follow that there is not a limit, but only that it does not depend on some natural fact. Indeed, such a limit can be determined normatively (Meyer and Roser 2006, p. 226). However, as explained above, causing emissions is necessary for performing almost all activities which contribute to our well-being and to living autonomous lives. Thus, why would we place a limit on those activities that have beneficial and important consequences? What normative reasons do we have for limiting the possibility of engaging in emission-generating activities?

One reason is evident. In the same way that emission-generating activities generally have beneficial consequences, they also contribute to the fact that many people could suffer harm. According to the 5th IPCC report, emission-generating activities are the main cause of anthropogenic climate change. As is widely known, climate change will increase the number and severity of floods, heatwaves, droughts, and epidemics, among other bad consequences (IPCC 2014; 2018). These changes will cause a worsening of people’s conditions of life and a significant number of human an animal deaths. Also, food security and health conditions will be undermined. Concerning the former, it is projected that wheat, maize, and rice production will be negatively affected and that water 192 resources in subtropical regions will decrease. Regarding the latter, death and diseases will likely increase either directly by heatwaves, fires, and floods; or indirectly by variations in disease factors as well as the social responses to these issues. Additionally, it is also worth noticing that climate change increases the risk of multiplying poverty and exclusion (Gough 2017, pp. 24-27).

All of these bad consequences constitute the costs of engaging in emission- generating activities, which include climate damages themselves, as well as the adaptation costs required to minimize climate damages (Meyer 2013, p. 609). These costs can be described as instances of harm since these bad consequences will negatively affect future people’s interests. In particular, as I argue below, the adverse effects of climate change will probably cause future people to have to live with a lower level of well-being that will undermine minimal conditions for autonomy. If we agree that all persons, including future people, have a right not to be wrongfully harmed, then concerning future people, currently living people might be under the duty of refraining from performing actions that will cause future people to be harmed in that way (Meyer & Roser 2009, p. 229). In the climate justice discussion, these considerations require that currently living people not emit GHGs in a way and at a level that could wrongfully harm future people. If future people have a pro-tanto right not to be wrongfully harmed, we should not take actions that would lead to this. Hence, the permissible upper level of global GHG emissions should be set not to cause future people to be wrongfully harmed. Thus, emissions can be regarded as a limited resource somehow in a similar sense to other resources such as land. In this way, intergenerational justice theories provide normative reasons for considering emissions a limited recourse. Our carbon budget, which ought to be fairly distributed internationally among different states, is composed of the total sum of remaining emissions (emission rights) compatible with not wrongfully harming future people.

At a more practical level, one way of understanding this duty is by relying on the well below 2º C or 1.5º C degrees target. In this sense, we would wrongfully harm future people by our emission generating activities if we do not seriously intend to achieve the goal of keeping the temperature well below 2º C above preindustrial levels with and seriously strive to reach the 1.5º C degrees target as it is stated in Article 2, Section (a) of UNFCCC. This target gains credibility not only because it is internationally recognized but also because it is predicted that some self-sustaining processes will be triggered

193 around such a temperature. These processes will have the consequence of more significant warming and, hence, worse adverse effects for future people. As Ian Gough (2017) highlights, several studies assert that if future temperatures rise above 4º C compared with preindustrial levels, the circumstances of such a future world will be incompatible with the most reasonable characterizations of civilized and organized global communities (p. 25). Hence, in line with the UNFCCC, and as a practical matter, the upper level of remaining permissible emissions ought to be set to keep temperature rise well below 2º C over preindustrial levels with extra effort being placed on reaching the 1.5º C limit. Not engaging in a reduction process compatible with these aims will oppose the duty not to wrongfully harm future people by our emission-generating activities.

However, for this view to be defensible, at least two objections must be addressed. First, it can be objected that the future people do not have rights because they do not exist presently. Since they do not have rights, including the right not to be harmed there cannot be a correlative right-based duty we can violate by emitting GHGs in a way that future people will be harmed. Therefore, even if we can harm future people by our emission- generating activities, our harmful actions cannot be wrongful.

The second objection asserts that it can be true that some future people can have rights that we can violate. However, since our emission-generating activities will have effects not only on the level of well-being of future people but also on the particular persons who will live in the future, our actions cannot harm them. This is because if we were to behave differently, e.g. if we were to reduce our GHG emissions, the particular people we would affect by reducing our emissions would not be better off, rather they would have never existed.

i. The Rights of Future People

The first objection is that future people cannot have rights because they do not have current existence.213 If future people cannot be bearers of rights, including the right not to be harmed, we cannot be bounded by a correlative right-based duty not to harm them. In responding to this objection, it is helpful to distinguish between two accounts concerning the function of rights. For the will-theory, the rights-holder is a “small-scale sovereign to whom the duty is owed” (Hart, 1982, p. 183). Claiming that someone has a

213 This section I.i is based on the analysis of rights of future people I conducted in Truccone-Borgogno (forthcoming). 194 right vis-à-vis another individual requires that the former has the power to exercise it. On this view, although present people can affect future people, future people cannot make demands on present people (Steiner, 1983, p. 155), and so conceptually cannot bear rights against them.

In contrast, in the interest-theory of rights, to claim that X has a right is to assert that “an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty” (Raz, 1986, p. 166). On this account, having the power to demand or waive one’s right is not necessary to be a right-bearer (Meyer 2021a, Section 2). Hence, on this view, the lack of future people’s power to demand the fulfillment of the correlative duties does not undermine the possibility of future people having rights. If the interest-theory is endorsed, future people can be understood as right bearers.

Nevertheless, even if the interest-theory of rights is accepted, the fact that future generations do not presently exist casts a different doubt on the possibility of future people having rights that have bearing on what present-day people ought to do. The objection is that because future people do not exist now, they cannot be rights-bearers in the present (De George, 1980, p. 159). Robert Elliot (1989) provides two classical responses to this objection. The first, the non-concessional view, does not concede this objection’s point; it denies that “there cannot be rights whose bearers do not yet exist” (p. 160). The second, the concessional-view, concedes this point but denies that the present non-existence of future people’s rights can be the basis for rejecting the idea that present living people have right-based duties towards future people, provided that there will be future people (Elliot, 1989, pp. 161-162).

Accepting either of these two views requires rejecting one of the following two requirements.214 According to what Axel Gosseries (2008) calls the obligation-right contemporaneity requirement, “for an obligation to exist, its correlative right would already need to exist” (p. 455). In contrast, according to the right-bearer contemporaneity requirement, “when and only when a person will come into existence, she will have rights” [emphasis in the original] (Gosseries, 2008, p. 456).

The non-concessional view rejects the right-bearer contemporaneity requirement because this view allows the claim that future people’s rights exist in the present. On this view, future persons can have rights in the present, although they do not exist now

214 Derek Bell notices this point (2011b, p. 105). 195

(Partridge 1990, p. 40). By accepting that future people’s rights exist in the present, the non-concessional-view meets the obligation-right contemporaneity requirement since the present people’s duties do exist simultaneously with the correlative rights. However, Gosseries provides the following objection to that position: “Holding a right presupposes the existence of underlying interest. Having an interest presupposes that its holder can be harmed. Arguably, only people who exist today can be harmed today. Therefore, future people cannot be said to have an interest today, and even less so a right” (2008, p. 454). For this reason, I think the non-concessional view should be rejected.

The concessional view, in contrast, accepts the right-bearer contemporaneity requirement. Hence, on this account, future people do not have rights in the present. However, future people might still come to have rights in the future if they will exist. On this account, future people will have interests in the future, and those interests will determine their rights. Since our actions and policies might affect and frustrate future people’s interests, we can also violate their future rights (Meyer, 2021a, Section 2). Understood in this way, currently living people have present duties toward future people due to the rights these people will have in the future. Since, on this view, we speak of present duties that correlate with future rights, the concessional view rejects the obligation-right contemporaneity requirement.

The concessional view allows us to claim that although a present event can cause a rights violation, the rights violation will take place in the future when the future people and their corresponding rights will exist. By relying on this view, we can explain why presently living people are bounded by a duty to reduce their level of GHG emissions since if they do not engage in such a reduction process, they will frustrate future people’s important interests and, therefore, their future rights.

ii. The Threshold Conception of Harm

The second challenge to setting an upper limit of remaining permissible emissions by relying on a duty not to harm future people states that our emission-generating activities cannot harm them. This objection assumes the counterfactual conception of harm. As highlighted in Chapter 2 (Section I), this conception has been popularized by Joel Feinberg, who asserts that A harms another person B if “A’s action is the cause of an adverse effect on B’s self-interest” (1987, p. 148). Thus understood, well-being specifies the currency of harm. For Feinberg, harms should be measured according to

196 what he calls “the counterfactual test,” which is satisfied if “B’s personal interest is in a worse condition … than it would be had A not acted as he did” (Feinberg 1987, p. 149).215 The reason suffering harm in this counterfactual-based sense is bad is straightforward. This is because it has a comparative dimension in the sense that some alternative would have been better for the affected person (Parfit 2017b, p. 134).

This conception is widely accepted because it is useful for identifying harm in a large number of situations.216 However, this conception of harm cannot explain why future people might be harmed due to present people not reducing their GHG emission levels, even if by doing so, they may cause a world in which future people will have to live with a low level of well-being. The issue is, again, the non-identity problem (Parfit 1984 Ch. 16), which I discussed in Chapter 2 concerning individual claims for compensation for historical wrongs. It is worth recalling that the non-identity problem rests on details relating to human reproduction. The issue is that depending on which action or policy is performed, the resulting persons’ identities will differ. Thus, such actions or policies cannot cause those persons affected by our acts or policies to be worse off. Since the counterfactual conception of harm asserts that a person is harmed when she is worse off than she would have been, such a conception cannot explain why future people will be harmed in non-identity cases.

Notice that for claiming that not reducing GHG emissions will harm future people it is not enough to replace the counterfactual notion with a different comparative conception of harm. For example, we could think about replacing the baseline upon which the comparison is made with a historical one. A person is suffering harm if some of her interests are in a worse condition than they were before. If we endorse this historical conception of harm, we could not explain why future people will be harmed, either. For claiming that, we would have to accept both that (a) they will be worse off than they were before they were conceived and (b) that a life lived by a person is commensurable with non-existence. As Lukas Meyer has argued, accepting (a) is implausible since it requires us to “attribute[e] a state of well-being to an egg cell before its fertilization by a sperm”

215 The currency of harm refers to which kind of bad thing should be considered harmful. In comparison, the measure of harm considers how the magnitude of harm ought to be assessed (Tadros 2014, p. 171). 216 For avoiding common criticisms of that view, instead of claiming that a person suffers harm when she is on-balance worse off, we should claim that a person suffers harm when she is in some respect worse off than she would have been otherwise. If we do this, we can explain why if I cut your arm, you are suffering harm even if, like the Winter Soldier in Marvel comics, you receive a replacement arm that makes you on- balance better off. 197

(2021a, Section 3.2). Endorsing (b) is also problematic. Indeed, as David Heyd reminds us, “the comparison between life and non-existence is blocked by two considerations: the valuelessness of non-existence as such and the unattributability of its alleged value to individual subjects” (1992, p. 37; see also Meyer 1997b; 2021a, Section 3.2).

The case of GHG emissions and the possible harmful effect for future people differ in one aspect from the classical non-identity cases discussed within the scope of reproductive decisions. Cases of reproductive decisions involve the non-identity problem directly. In those situations, the act of conceiving generates only one causal course from which two consequences arise: the affected person’s existence and their subsequent level of well-being. However, GHG emissions only indirectly involve the non-identity problem. In this type of situation, actions have consequences that initiate a set of causal pathways that also will have a decisive effect on both the existence of the affected persons and their level of well-being. This is to say that the currently living people’s emissions generate, on the one hand, changes in the reproductive behaviors of a significant number of people and, on the other hand, catastrophic effects in the future. However, since the same actions generate both sets of causal chains, it is true that if currently living people reduce their emissions, those future people that would have to live with low levels of well-being would not be better off. If the counterfactual conception of harm is accepted, we cannot specify the upper limit of remaining permissible emissions by relying on a duty not to harm future people. This would is because in this conception, we cannot harm them.217

To explain why not reducing our GHG emission levels can harm future people requires relying on a different conception of harm. One possibility is to appeal to conceptions of intrinsic harm. These conceptions do not require that the persons affected by our actions be in a worse state or condition than its alternative. Instead, the status of harm stems from intrinsic properties associated with harmed states (Parfit 2017b p. 133). The threshold conception of harm (sketched in Chapter 2) can help here. According to this conception, a person suffers harm when she is in a state that is below some normatively defined threshold (Meyer 2003, p. 147; Meyer and Roser 2009, p. 228). In this view, if our emissions of GHG will cause future people to be in a state that is below a relevant standard of well-being, they will be harmed. If the threshold conception of

217 On the distinction between direct and indirect non-identity cases see Boonin (2014, pp. 2-7). 198 harm is accepted, and if our emissions can harm future people in this sense, then the upper level of the remaining emissions of GHGs can be set not to wrongfully cause future people to suffer harm in this threshold-based sense.218

iii. Needs-based Sufficientarianism

Two points need to be clarified for the threshold conception of harm to be part of an understanding of intergenerational justice. First, it must be specified which principle of distributive justice is to be used for specifying the threshold. Second, it should also be mentioned why being in sub-threshold states is intrinsically bad i.e. the currency must be specified (Meyer 2021a, Section 4). In this matter, I endorse what Meyer and Pölzler (forthcoming) call needs-based sufficientarianism.

Regarding the first point, the discussion usually rests upon whether egalitarian, prioritarian, or sufficiantarian considerations should specify the threshold. Even if I cannot summarize the comprehensive literature on theories of intergenerational justice, for a better understanding of what is at stake here, it helps to introduce and sketch briefly alternative theories. Egalitarianism objects to inequalities. As expressed by Gosepath, “Equality’ (or ‘equal’) signifies correspondence between a group of different objects, persons, processes, or circumstances that have the same qualities in at least one respect.” … “A conception of justice is egalitarian when it views equality as a fundamental goal of justice” (2021, Sections 1 and 6). From this point of view, the threshold would recommend distributing the benefits from GHG emissions in a way that future people will enjoy a level of well-being equal to ours. One problem with this view is that if present- day people act so that future people would have a better level of well-being than ours, at least in one respect, this would be worse for future people (Meyer 2021a Section 4.1; Parfit 1997).

For prioritarians “Benefiting people matters more the worse off these people are” (Parfit 1997, p. 213). Further, benefits have more value the more people are being benefited and the greater the bestowed benefits are, the more their value (Meyer 2021a Section 4.2.). From this point of view, the threshold would recommend distributing the

218 Generally, each emission-generating activity cannot cause, by itself, that future people are below the threshold of harm. Such a result would occur only if we add the effects of emission-generating activities of other people. Therefore, for asserting that we have the duty not to cause harm to future people by our emission-generating activities, we have to accept that an action can be wrong if it is part of a set of acts that together will cause severe harm to a significant number of people. For a defense of the plausibility of this thesis, see Parfit (1984, pp. 78-82; 2017a, pp. 422-432). See also Truccone-Borgogno (2019, pp. 66-73). 199 benefits of GHG emissions so that those who are worse off are benefited more, more people are benefited, and those who are benefited received more benefits. The problem with this view is that fulfilling the demands of intergenerational justice could be highly demanding for present people. This is because they can be under the duty to transfer many benefits to future people even if this represents a slight benefit for each future person and a great sacrifice for present people (Meyer 2021a Section 4.2.). If the number of future people who will live is incredibly high, then for fulfilling the demands of intergenerational justice, the priority view implies that most benefits should be allocated there, even if present people suffer considerable costs.

The classic definition of sufficientarianism is based on the Frankfurt’s idea that “With respect to the distribution of economic assets, what is important from the point of view of morality is not that everyone should have the same but that each should have enough” (1987, p. 21). According to the sufficientarian way of specifying the threshold, in the intergenerational distribution of the benefits of emission-generating activities, we should give priority to those who are living or will live below a threshold of sufficiency. Sufficientarianism is a pattern-based theory of distributive justice characterized by two theses: What Paula Casal (2007) labelled the positive thesis and what Liam Shields (2016) called the shift thesis. According to the positive thesis, as Shields asserts, “we have weighty non-instrumental reasons to secure at least enough of some goods” (2016, p. 28). According to the shift thesis, “once people have secured enough, there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit [people] further” (Shields 2016, p. 30).219 From this point of view, the threshold would recommend distributing the benefits from GHG emissions by giving priority to those below the threshold of sufficiency regardless if these are present or future people.

Unlike egalitarianism, sufficientarianism is not committed to claiming that it is worse, at least in one respect, that future people have more benefits than present people concerning a relevant good (Meyer 2021a Section 4.2.). Further, to specify the threshold in terms of sufficiency also speaks against reducing differences if doing so leads to “a state of affairs in which people are worse off than they ought to be” (Meyer and Roser 2009, p. 235). Second, the view also avoids, or at least reduces significantly, the scope of

219 As Liam Shields asserts “Together the positive thesis and the shift thesis comprise the minimum claims of any sufficientarian principle offering distinctive guidance” (Shields 2016, p. 33). Given this, sufficientarianism need not endorse what has been called the negative thesis. The negative thesis rejects “egalitarian or prioritarian reasoning at least above some critical threshold” (Casal 2007, p. 299). 200 the objection against the priority view upon which to fulfill the demands of intergenerational justice could be extremely costly for present-day people even if many future people are slightly benefited (Meyer and Roser 2009, p. 235). Sufficientarianism prioritizes those who are below the threshold. Thus, this view cannot recommend benefiting above-threshold future people further if, by doing so, present-day people would fall below, or even further below, the threshold. For the sufficientarian view, “claims against currently living people are unreasonable if in fulfilling them the currently living people will bring about minimal or even trivial improvements of the well-being of future people but suffers losses themselves, causing them to fall under a plausible threshold of well-being” (Meyer and Roser 2009, p. 235).

Even if the threshold reflects considerations of a sufficiency principle of intergenerational distributive justice, it does not explain why being below some threshold of well-being is intrinsically bad. The currency of harm still must be specified. Thus, endorsing the threshold conception of harm as part of an understanding of intergenerational justice requires an explanation of which properties or characteristics are to be considered intrinsically bad in sub-threshold states. In Chapter 2, I assumed that to be in sub-threshold states is harmful because it implies that some person’s interest in having her basic needs met is not satisfied. Now I explain why this is so.

The main idea behind almost all definitions of basic needs is that their non- fulfillment represents serious harm of an objective kind (Braybrooke 1987, p. 32; Copp 1998, p. 123; Gough 2017, p. 42; Meyer and Pölzler forthcoming). For instance, Doyal and Gough relate the seriousness of the harm consisting of not having some basic needs fulfilled with how such a circumstance impairs the “pursuit of own’s vision of the good” (1991, p. 50).220 Not having our basic needs satisfied puts us in a situation of what David Axelsen and Lasse Nielsen (2015) call duress, “a situation in which one is under significant pressure in central areas of human life, a pressure that would impede any normal human being’s ability to succeed in a similar situation” (p. 408). As they argue, those whose basic needs are not fulfilled are under significant pressure that prevents them from succeeding in their life plans (Axelsen and Nielsen 2015, p. 416).

220 According to these authors, physical health and autonomy are the basic needs that must be met to pursue our goals. This is because with poor physical health completing a range of practical tasks in daily life is impossible (Doyal and Gough 1991, p. 56), and having a minimum level of autonomy is what allows people to engage in successful social cooperation, which in turn is required for achieving private and public goals (Gough 2017, p. 42). 201

Thus understood, the threshold conception of harm highlights a close connection between the notions of well-being and that of autonomy. As Meyer and Pölzler assert, when people are in subthreshold states characterized for the fact that their basic needs are not met, they cannot make decisions about what is worth doing (Meyer and Pölzler forthcoming). In the view of these authors, to be in subthreshold states, hence, is bad not only because personal autonomy has been negatively affected but because the person is in a state incompatible with him/her being able to have a minimally good life (Meyer and Pölzler forthcoming). It is not just that life plans can be impaired when someone suffers harm in the threshold-based sense, but also the very ability to plan is undermined. Since the threshold can be informed by sufficientarian considerations of intergenerational justice, that to be below this threshold is intrinsically bad, and that we can cause future people to be in those states by our emission-generating activities, then the upper level of the remaining permissible emissions (to be internationally distributed) can be justifiably set as not to cause future people to be in those subthreshold states.

To consequences follows from this version of need-based sufficientarianism. First, as Clark Wolf asserts, “where our present activities are not necessary for the satisfaction of present fundamental needs and put at risk the basic needs of future generations, then they are unjust” (2009, p. 373). This means that in the distribution of benefits from emissions of GHG, we might be obliged to reduce our levels of emissions so it will be possible to transfer to future people those benefits that are required for them not to fall below the threshold, provided that by doing this we do not fall below the threshold.

The second consequence of this view is that the process of global reduction of our current level of emissions should not require reductions either to those who are currently living in conditions in which their basic needs are not satisfied or to those that by engaging in a reduction process will end up living in conditions in which their basic needs are not satisfied. As Henry Shue (1993) has argued, the world should reduce emissions so that future people will not be harmed while allowing those who live in desperate need to increase their levels of emissions (pp. 42-43).221

221 There are difficult cases in which whatever we do some people will be caused to live below the threshold or in which we need to make distributions below the threshold. For these cases, sufficientarians have advocated for a variety of views. For instance Meyer and Roser (2009) argue for apply the priority view below the threshold, and Wolf (2009) highlights what he calls principle of min-deprivation that “require that we structure institutions so that as few people as possible will suffer from unmet needs” (p. 357). Other 202

II. International Distribution of the Remaining Global Carbon Budget

In the last section, I argued that intergenerational justice considerations, particularly those connected with the duty not to wrongfully harm future people, provide normative reasons for considering GHG emissions as a limited resource. However, I have not yet provided a criterion on which the remaining permissible emissions should be globally distributed. In this section, I argue that before considering historical emissions, the remaining GCB ought to be distributed according to the equal-per-capita view.

The two main approaches regarding distribution of remaining permissible emissions are contraction and convergence and equal per-capita view. According to contraction and convergence, “every country begins with its current average per person emissions and converges on a globally common future level of per-person emissions by a future point in time” (Steiniger et al. 2020, p. 340).222 Contraction and convergence could be justified if we can assert that each country’s current level of GHG emissions has been acquired legitimately. Historical theories of justice (discussed in detail in Chapter 4) seem to be the natural candidates for providing the required justification. For instance, Robert Nozick asserts that “a person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding” (1974, p. 151). In our context, this thesis points out that if developed countries have acquired their emissions legitimately, then they have the right to continue emitting GHGs at the level they always have done. In this view, “just as land usage (through homesteading) established claim rights over land, usage of [carbon sinks] established claim rights over [carbon sinks]” (Bovens 2011, p.129). In this view, developed countries would have acquired a historical right to, what John Simmons (1995) calls, a “particularized share” (p.162) of the carbon sinks.

However, Nozick asserts that for the acquisition of an unowned resource to be legitimate, such an acquisition has to satisfy certain conditions. For him, acquiring an

difficult cases arise when the options consist of either causing a small number of people to be in slightly subthreshold states or to avoid that the level of well-being of other (much more) people decrease substantially although not at the point of falling below the threshold. Strong versions of sufficientarianism give absolute priority to the concern for those who are below the threshold while weak versions of sufficientarianism only give more priority to the weight of the reasons for benefiting people below the threshold (See Meyer and Roser 2009; see also Meyer and Stelzler 2018). 222 Models of contraction and convergence are usually presented alongside the idea of grandfathering, according to which “agents are entitled to emit the same percentage of total emissions as they previously emitted” (Knight 2013, p. 411). 203 unowned resource is legitimate as long as such an acquisition does not worsen others’ situations (Nozick 1974, p. 175). This thesis is grounded on the Lockean idea that it is possible to legitimately appropriate a parcel of land as long as we have left enough and as good for others (Locke 1970, p. 304). The purpose of placing this proviso is “that our appropriations and holdings not harm or unfairly disadvantage others (Simmons 1995, p. 165).

Peter Singer provides an example that helps us assess the legitimacy of developed countries’ past acquisition of their emissions. If such acquisition is legitimate, then the contraction and convergence model can be justified. Singer (2008) asks us to think of the atmosphere as a global sink into which we pour our waste gases. In the beginning, no one knows what happens with our waste gases. However, at some point, we discover that the giant sink cannot absorb our gases without harmful consequences. We discover that our current and past use of the sink will have terrible and harmful consequences (p. 674). If we think of carbon sinks in this way, it seems that the past emissions of developed countries did not leave enough and as good in terms of quantity and quality for others. The Lockean proviso seems to be violated and therefore the appropriation of the resource was illegitimate. The same conclusion obtains if instead of considering the Lockean enough and as good proviso, we take the Nozickean not worse than before clause, given that developing countries’ opportunities to make a justifiable use of the carbon sinks were worsened.

One might resist the previous conclusion by asserting that it is simply not accurate that the use that developed countries made of carbon sinks at that time worsened the situation for other countries. There might be some truth in this objection. However, even if enough and as good of the resource was left to others in the past, this was no longer the case from a certain point onwards and today there is too little left (Heyd 2017, p. 42). This can be seen if we consider that developing countries will suffer the majority of the adverse consequences of climate change (Meyer & Roser 2010, p. 230). Further, given that there is too little of the resource left, if these countries want to fulfil their intergenerational duties and there is not aid or transfer of goods from developed world to them, it is unlikely that they can engage an in industrialization process that allows them to reach levels of well-being at a comparable level to that of developed countries.223 In

223 I explain in detail why this is so Chapter 6 (Section I. ii) 204 the light of these considerations, it seems difficult to support the claim that historical use of carbon sinks made by developed countries has not worsened developing countries’ situation. If these considerations are correct, it is challenging to justify a model of contraction and convergence grounded on these historical theories of justice.224

Let us turn now to the equal per-capita approach to the global distribution of the remaining permissible emissions. According to the equal-per-capita view, “the GCB is split in such a way that all countries are allocated an equal amount of emissions per person for the time horizon up to 2050” (Steiniger et al. 2020, p. 340). To defend this model, I adopt a local justice perspective. That is, I am assume that “the fair distribution of the good is determined as though the distribution of other goods was completely faded out from view” (Meyer & Roser 2010, p. 232). I also assume that there are not upward or downward factors that might speak in favor of more or fewer emissions according to the specific condition in which each person is living.225 Although these assumptions are contentious, it is helpful to rely on them because: 1) this approach allows us to clarify specific issues before going to a more complex “all-things-considered analysis” (Gosseries 2005, p. 283). Moreover, 2) there is a practical matter here. As Meyer and Roser assert: “Currently, it is not an issue of much political relevance of how to globally redistribute, say, natural resources or all goods in general but the determination of the distribution of the newly created emission rights, in contrast, is an issue which cannot be escaped” (2010, p. 233).

Thus understood, a way of defending the equal per-capita model of distribution of the remaining GCB is to appeal to patterned-end-state theories of justice. We do not need to rest on egalitarianism for defending an equal per-capita view. We can also, for example, draw on prioritarianism. According to the priority view: “Benefiting people matters more the worse off these people are” (Parfit 1997, p. 213). This view allows for unequal distributions when a person is in a worse condition than another. However, given that I am assuming that emissions are to be distributed without considering their relation to other resources, as Meyer (2013) asserts, if we ignore the distribution of other goods,

224 I discuss some of these ideas further, although from a different perspective, in Chapter 6 (Section II. ii.) 225 On this second issue, see Gosseries (2005, pp. 290-292). 205 it is impossible to identify who is worse off (pp. 602-603). Hence, the priority view can also justify the global distribution required by the equal per-capita view.226

III. Historical Emissions and the Community Pays Principle

In the last section, I discussed two models on which remaining permissible emissions can be globally distributed. However, I have not yet considered if historical emissions should be taken into account nor, assuming they should be taken into account, how that affects distribution. As highlighted above, the issue is that until the beginning of the 21st century around two-thirds of emissions were caused by developed countries, and more than half of the total amount of carbon dioxide emitted since 1850 has been released by the United States and Europe. Further, the most adverse effects of climate change are occurring in developing countries. The fact that developed counties have emitted more than developing ones and that the latter are and will suffer worse consequences associated with climate change seems to require that developing countries receive a larger per-capita share of the GCB than the share developed countries should receive.

One general objection against taking historical emissions into account when distributing remaining permissible emissions is as follows. Many emissions were caused by people who are no longer with us. Therefore, present members of developed countries can object that they are not responsible for their predecessors’ behavior. As present members of developed countries did not cause the emissions, those emissions ought not place them at a disadvantage when distributing the remaining GCB (Meyer 2013, p. 603).

This objection denies moral responsibility to present members of industrialized countries because they are not causally responsible, or at least not entirely or significantly responsible, for the current state of the climate. However, as I argued in Chapter 2, responsibility for providing compensation or for remedying a certain state of affairs does not require being causally involved in creating that state of affairs. In Chapter 2 Section V, I argued that currently living non-indigenous Argentines have reasons to redress

226 Meyer (2013) also highlights that the priority view allows for unequal distributions when someone can better use the resource than another. However, he also argues that since the amount of benefit obtained by engaging in emission generating activities also depends on access to other goods, we cannot assert that some person can make better use of emissions than another if we ignore other goods’ distribution (pp. 602- 603). For a detailed analysis of how to justify a prioritarian scheme of distribution of (tradable) emission rights, see Meyer and Roser (2010, pp. 233-240). 206 historical injustices committed by their predecessors against indigenous communities in the late 19th century. This is because currently living non-indigenous citizens of Argentina are relevantly connected to those who perpetrated the Conquest of the Desert. I supported that by being members of a community whose past members bequeathed them public evils, currently living non-indigenous Argentine citizens have reasons for disposing of those public evils, even if they are not causally responsible for current circumstances.

A similar argument can be made concerning present citizens of developed countries with respect to climate change if we assume that past emissions can be considered wrongful.227 Indeed, they are not causally responsible for the current state of the climate system. However, many consider themselves part of a community (usually represented by the state or nation where they live) whose past members’ emissions of GHGs caused the current climate situation. In such a case, currently living members of developed countries can be remedially responsible for the consequences caused by their ancestors. Grounded on these notions, it can be claimed that present members of developed countries are remedially responsible for addressing current climate problems because of a collective inheritance associated with their predecessor’s GHG emissions. Because of this remedial responsibility, present members of developed countries might have to bear the greatest cost not only of climate mitigation but also in taking measures for present members of developing countries to be more able to adapt to the adverse effects of climate change.

Furthermore, this responsibility obtains even in some cases where currently living members of a certain industrialized state are not part of the numerically identical community whose past members emitted high amounts of GHG. As I argued in Chapter 2, numerical identity is unnecessary for groups’ continuing existence. It is necessary nonetheless that something is contained in the numerical identity of groups. Because what matters for groups' survival is something contained in their numerical identity, groups may have survived if that something has survived, regardless of the maintenance of their numerical identity. In Chapter 2, I argued that something is the existence of a continuous collective memory between presently living members of a group and their predecessors (see Chapter 2; see also Meyer 2001). These ideas give rise to a version of what Meyer

227 I discuss below and in the next chapter how past emissions should be treated if and when they are not considered unjust. 207 and Roser (2010) call the community pays principle (p. 239), which can explain why “present-day members of countries should accept the duty to make compensatory payments for wrongful emissions of earlier members of the country” (Meyer and Roser 2010, p. 245).

However, there is an important disanalogy between past emissions of GHGs by early members of developed countries and the behavior analyzed in Chapter 2 concerning the past members of the Argentine state. While the Conquest of the Desert was an injustice perpetrated by past non-indigenous members of Argentina, it is far from clear that past emissions are unjust. The objection to consider past emissions unjust concerns “‘past polluters’ epistemic state with respect to (their purported or actual) ignorance about the long-term and global consequences of their emission-generating activities” (Meyer & Sanklecha 2017, p. 8). This ignorance problem applies to emissions released before specific date X in the past. As Axel Gosseries (2004) notes, there is a point of contention concerning which date should fill the X, ranging from 1840, what is known as the Brazilian proposal; 1896, in reference to Svante Arrhenius’ article; 1967, in reference to the first serious modeling exercise on the issue; 1990, when the IPCC published their first report; to 1995, when the second IPCC report was published, and it was unanimously recognized by the IPCC members that GHG emissions impact the global climate (p. 360).

In Chapter 1, I argued that no one can be blamed for failing to comply with moral criteria unavailable when they live, but that when valid moral criteria are easily available, one can be judged and blamed upon those criteria. Even if it was not until 1995 that IPCC members unanimously recognized the harmful effects of GHG, this fact was easily available, at least for the relevant agents, in 1990 when the IPCC published its first report. Therefore, in this work, I establish that X corresponds to 1990.228 The problem is that before X, past polluters and also currently existing people did not know nor were required to know about the harmful effects of their emissions. For that reason, it seems unjust to take into account in the distribution of the remaining carbon budget activities performed in a state of excused ignorance.

The excusable ignorance objection prevents us from claiming that past emissions were wrongful. This is a problem since, as Meyer and Roser assert, “compensatory

228 Anyone who believes that the X should be filled with another date can continue reading this chapter by taking that date into account. 208 payments along the lines of [the community pays principle] only cover wrongful emissions” (2010, p. 245). Thus, if currently living members of developed countries are to be held remedially responsible for their predecessor’s past emissions, it must be explained why this is so even if there were no injustice in emitting GHGs in a state of excused ignorance.

The fact that there was not injustice in past emissions rules out the possibility of having inherited a public evil. However, Lukas Meyer (2005) has argued that we can also inherit collective public bads. Unlike collective public evils that require that past people have done something wrong, a collective public bad can be the result of blameless acts. A collective public bad can result from behaviors that taken alone cannot be morally criticized (p. 168). Our predecessors can also bequeath us some public bad by believing that they were doing the right thing without having known that they were mistaken. For this reason, unlike with public evils, we might owe certain moral respect to their actions (Meyer 2005, p. 219), at least in the sense of recognizing that they were not liable to know the bad consequences of the activities they were performing.

A collective public bad is the negative analogy to public goods (Meyer 2005 p. 168). On Raz “A good is a public good in a certain society if and only if the distribution of its benefits in that society is not subject to voluntary control by anyone other than each potential beneficiary controlling his share of the benefits” (Raz 1986, p. 198). The analogous characterization is as follows. A bad is a public bad in a certain society if and only if the distribution of its harms in that society is not subject to voluntary control by anyone other than each potential beneficiary controlling his or her share of the harm. Meyer (2005) uses an example in which the political constitution of a certain society, and how the debates are conducted in that society, often cause a political crisis that negatively affects the economic stability of that society. In such a case, no member of that society can escape the negative influence of the public bad (pp. 118-119). As inheriting collective public goods and evils impose certain duties on us, the same holds when some collective public bad is inherited. Suppose the political constitution of this country disproportionately benefits one group while harming another. In that case, there are reasons for reforming the political constitution to counteract the effects of the collective public bad. Further, when a collective public bad is inherited, there is also a duty to redistribute harms and benefits between all of those that are unevenly affected (Meyer 2005, pp. 218-219). 209

Let us accept that there is a continuous collective memory between present members and past members of developed countries. The fact that past members of developed countries’ emissions harmed present and future members of developing countries can be understood as an inherited public bad that present members of developed countries have to nullify. It does not matter that past emissions were not unjust. For a collective inheritance to be understood as a public bad, it is not required that those who bequeathed it behaved wrongly. Wrongless harmdoing is compatible with that notion. In this case, thus, present members of developed countries might be bound by a duty of compensation for those harms present members of developing countries suffered as a consequence of past emissions of their predecessors.

In this understanding, the past matters causally. It has relevance for identifying those who have compensation claims owing to the harm they suffer as a consequence of wrongless past actions (Meyer 2004b p. 29). Thus, currently living members of developed countries can still be held remedially responsible for their predecessor's past emissions. This view provides support for why historical emissions should be taken into account in the distribution of the remaining GCB. In light of the collective public bad present members of developed countries received, they should allow present-day members of developing countries to have a larger share of the GCB than the share they should have received had historical emissions not been taken into account (Meyer 2013). This would be a way of providing compensation for those harms present members of developing countries suffer due to the wrongless historical emissions of the members of developed ones.

Furthermore, if we consider that past people’s emissions unevenly benefited and harmed currently living people, then having received this unequal distribution could also be understood as having inherited a collective public bad. It does not matter that the past emissions were not unjust. If this is so, then undeserved benefits and underserved harms owed to past emissions should be redistributed between developed high emitting countries and developing ones. The conclusion, as Meyer states, is that “people who have received fewer [benefits], typically people in developing countries, should get a disproportionate share of emission rights because others, typically people in highly industrialized countries, have already received a large part of their share by inheritance from their ancestors” (2013, p. 608).

210

One potential objection to this view is that someone can accept that collective inheritances generate duties at the domestic level (within states, for instance). Living side- by-side with others in a certain territory (using the expression from Chapter 3) makes it plausible that the present members of the community or group who inherited some public evil or bad should dispose of it. In the case of Argentina, non-indigenous people and indigenous people, today, are part of the same state. They live in the same territory, are bound by the same institutional scheme, and interact with each other in innumerable ways. For instance, Thomas Nagel’s argues that “it is only from [a political society under strong centralized control], and from our fellow members through its institutions, that we can claim a right to democracy, equal citizenship, nondiscrimination, equality of opportunity, and the amelioration through public policy of unfairness in the distribution of social and economic goods” (2005, p. 127). These facts might strengthen the reasons for disposing of those public evils so that no one within that political society and bound by that coercive institutional scheme will be negatively affected by a collective inheritance.

However, it is not obvious that the same holds at the international level since it does not seem to be a coercive institutional scheme equivalent to that at the domestic level. As Nagel claims, “justice, on the political conception, requires a collectively imposed social framework, enacted in the name of all those governed by it” (2005, p. 140), something that seems not to exist at the international or global level. There are duties at the international and global level that are rarely disputed, such as the duty not to wrongfully harm others and to assist the needy. It seems that there is also a duty to provide compensation for harm wrongfully inflicted, and there might even be a duty to restitute benefits unjustly acquired. However, it is not clear if at the global or international level, collective inheritances of public bads could also justify, for example, the duty to redistribute collectively inherited harms and benefits.

I am not in a position to assess the strength of this objection here.229 However, even if this objection holds, there are further reasons why present members of developed countries should allow present-day members of developing countries to have a larger share of the GCB than the share they should have received had historical emissions not

229 Although a plausible response to the objection can be built on Føllesdal’s view that “the normative salient features and functions of a domestic BS [Basic Structure] that give rise to standards of distributive justice among subjects also hold for the GBS [Global Basic Structure]. In particular, it seems that the role of states, and consent of states, cannot support claims that GBS is sufficiently different that some such distributive standards should also apply to it” (2001, p. 62). 211 been taken into account that does not require resting on these notions of collective inheritance. In the next chapter, I provide one of those reasons.

Conclusion

In this chapter, I explained that the distinctive features of climate change give rise to the issue of how mitigation and the adaptation costs should be globally distributed. As anthropogenic climate change is associated with GHG emissions, we need to discuss how emissions ought to be distributed among countries. Since the goods to be distributed are the benefits from remaining GHG emissions, I explained that this good is to be understood as a limited resource even if there is no natural limit to our emitting GHGs. I defended that theories of intergenerational justice can help in specifying such a limit. I argued that the upper limit to our GHG emissions should be set not to wrongfully harm future people.

However, I asserted that this view must respond to two objections. First, we must explain why future people can have rights even if they do not have a current existence. Second, we must explain why not reducing GHG emissions will harm future people if it is the case that many of them would not have existed if we engage in emission reduction. Against the first objection, I endorsed the concessional-view of the rights of future people. In this view, present events can violate future people’s rights. However, the rights violation will occur in the future when the future people and their corresponding rights will exist. According to this view, presently living people are bound by a duty to reduce their level of emissions so not to frustrate future people’s important interests and therefore their future rights. Against the second objection, I argued that future people can be harmed according to the threshold conception of harm specified in terms of basic needs and sufficientarian considerations. In this view, if our emissions can cause future people to be in a state below the threshold of harm, then the upper level of remaining emissions should be set not to cause future people to be in those states.

I argued that before considering historical emissions, the remaining GCB ought to be distributed according to the equal-per-capita view. However, the shares of the GCB each country should receive should be qualified by considering historical emissions. One reason for this stems from collective public inheritances. If we accept that between currently living and past members of developed countries there is a continued collective memory and that the past members of developed countries’ emissions harmed present and future members of developing countries, then present members of developed countries

212 inherited a public bad that should be nullified. To achieve this, they should allow present- day members of developing countries to have a larger share of the GCB than the share they should have received had historical emissions not been taken into account.

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CHAPTER 6 UNJUST CLIMATE ENRICHMENT AND THE INTERNATIONAL DUTY OF RESTITUTION

Introduction

In the last chapter, I argued that intergenerational justice considerations, particularly those connected with the duty not to wrongfully harm future people, provide normative reasons for considering GHG emissions a limited resource. I also asserted that before considering historical emissions, the remaining GCB ought to be distributed according to the equal-per-capita view. I also argued that, in virtue of having inherited a collective public bad from their predecessors, present members of developed countries are bound by a duty to redistribute undeserved benefits and harms to present members of developing ones. However, I also asserted that this view could be objected on the basis that collective inheritances can generate duties only in the domestic realm and that it is not obvious that the same holds at the international level.

For this reason, I posit another line of argument for justifying the duty of currently living members of developed countries to allow developing ones to have a larger share of the remaining GCB that does not rely on notions of collective inheritances. I argue that the fact that the present members of developed countries have benefited from historical emissions at the expense of currently living members of developing countries ought to be taken into account in the distribution of the GCB. In particular, this fact provides further reasons for the latter to receive a larger per-capita share of the remaining GCB than the share they should have received had historical emissions not benefited the former at the expense of the latter.

In support of this view, I present the doctrine of unjust enrichment, and argue that it is a helpful tool for specifying under what conditions the beneficiaries from a certain state of affairs can be justifiably regarded responsible for remedying it. In Section I, I argue that present living members of developed countries have benefited from historical emissions, that those benefits were obtained at the expense of the currently living members of developing countries, and that those benefits are unjust. In section II, I discuss some countervailing reasons that might be able to block the existence of a duty to provide

214 restitution that arises from having been unjustly benefited at the expense of another party. These reasons might stem from changing circumstances. For instance, one might think that the duty to provide restitution no longer has moral weight if many benefits were already consumed, if present members of developed countries framed their life plans based upon the expectation of continuing in possession of those benefits, or if the particular benefits obtained from historical emissions cannot be transferred from one country to another. I show that none of these reasons negate the duty to provide restitution.

Like the argument grounded on collective inheritances, the view I advocate should also respond correctly to the causation objection and the excusable ignorance objection. It should explain why present-day members of developed countries can be held remedially responsible even if they did not cause the current climate situation, and it should also explain that these responsibilities exist even if past emissions were released in a state of excused ignorance. These two objections apply against considering historical emissions for the distribution of both mitigation and adaptation costs. Climate mitigation refers to preventing or, at least, limiting the magnitude of climate change. In contrast, climate adaptation refers to how to distribute the costs of dealing with the unavoidable harmful effects of climate change.

Concerning adaptation duties, there is an additional objection to holding present members of developed countries remedially responsible for the adaptation costs currently living members of developing countries have to face due to climate change. Present members of developed countries can not only assert that historical emissions were released in a state of excused ignorance, and further that many of these emissions were released by their ancestors, but also that it is unclear how much of the harm that developing countries are suffering and will suffer in the future as a consequence of climate change can be causally associated with these emissions. The objection does not deny that GHG emissions cause anthropogenic climate change. However, it asserts that from the total amount of harm, for instance caused by an increase in the sea levels or a decrease in the sources of drinkable water, it is difficult, if not impossible, to identify how much of that harm can be causally linked to historical emissions (Caney 2010, pp. 206- 207). The objection also points that when we refer to extreme climate events, it is difficult, if not impossible, to assert that a specific event, for instance hurricane X or flood Z is causally linked to historical emissions (Garcia-Portela 2021, p. 154).

215

The three objections support the view that the present generation of developed countries is not morally responsible for the current climate state of affairs that ought to be remedied because: first, they did not cause it; second, even if they contributed to causing the problem, they were blamelessly; third, even if historical emissions are linked to the climatic alterations, those emissions cannot be accurately linked to specific harms.

I. Climate Unjust Enrichment

There is a promising way for explaining why present members of developed countries can be held remedially responsible for the current state of the climate system even if their pre-1990 emissions and those of their predecessors were released in a state of excused ignorance. Remedial responsibility, it is worth recalling, identifies a state of affairs that needs to be redressed and then assigns someone the duty of remedying the state of affairs (Miller 2007, p. 98). Being morally responsible for creating a certain bad state is usually a criterion for considering someone remedially responsible. However, this is not the only criterion for ascribing responsibility. Under certain conditions, benefiting from a state of affairs is a sufficient condition for being liable for remedying it. David Miller (2007) argues that those who have unjustly benefited from a certain process can be held liable for remedying the situation if another party was deprived of something as a consequence of that process. This is so even if the beneficiaries played no causal role in such a process (pp. 102-103). In this view, if the present generation of developed countries benefited from historical emissions at the expense of another party, they can be remedially responsible for redressing such a state of affairs. However, the issue is how, or under what conditions, those beneficiaries from a certain state of affairs can be justifiably regarded responsible for remedying it.

The unjust enrichment doctrine (also known as enrichment without justified cause) justifies remedial duties without being morally or even causally responsible for the state of affairs to be redressed.230 The idea of unjust enrichment is present in many legal

230 In the climate debate, only few although important, proposals (Page 2012; Heyd 2017) tend to construct remedial responsibility of currently living members of developed countries based on the doctrine of unjust enrichment. However, by no means, is the doctrine of unjust enrichment the only possibility for justifying that those who have been benefited from past emissions should bear grater climate burdens. Lukas Meyer argues that we generally benefit not only from our own emission-generating activities but also from some of those performed by our ancestors. As highlighted in the last chapter he has argued that “beneficial consequences [of historical emissions] can be considered relevant for what may count as a just distribution of the remaining permissible emissions among currently living people” (Meyer 2013, p. 603). 216 systems belonging to both civil law and common law traditions.231 Unjust enrichment actions seek to reverse transactions or transfers of goods that are defective for some reason. The benefited party of unjust enrichment is usually liable for restitution without the need to show wrongfulness or fault in his behavior (Virgo 2015, p 34). Therefore, this doctrine seems well suited for claiming that present members of developed countries have remedial responsibility for the current state of the climate system even if they play no or little role in causing such a state of affairs.

With roots in Roman law, the basic idea is that no one should benefit at the expense of others. As the earliest precedent of unjust enrichment actions the following text from Pomponio found in the Justinian Digest 50, 17, 206, is often cited: “by the law of nature, it is right that nobody should be unjustly enriched at another’s expenses” (Johnston and Zimmermann 2004, p. 3; Barker 2008, p 49; Dagan, 2004 p. 17; Pizarro and Vallespinos 2017, p. 309). Of course, the specific conditions of unjust enrichment actions depend on the specific legal system to be considered. However, the applicability of the action is usually subject to the affirmative answer to the following questions: “(1) Was the defendant enriched? (2) Was it at the plaintiff's expense? (3) Was there an ‘unjust’ factor, in the sense of circumstances which the Law recognizes as requiring the enrichment to be given up? (4) Were there nonetheless facts which require restitution to be withheld?” (Birks 1992, p. X). These questions tend to instantiate the four requirements for unjust enrichment: (1) one party has been benefited or enriched; (2) the benefit was obtained at the expense of another party; (3) the benefit or enrichment is unjust (or without a legal ground); (4) there are no defenses able to block the claim for restitution (Birks 1992, p. 41; Burrows 2019, p. 7; Dagan 2004, p. 27, Zimmermann and du Plessis 1994, pp. 24-27).

This section analyzes if the first three requirements can be successfully applied to climate justice duties. I leave the analysis of the fourth requirement for the next section. The reason for this way of approaching the issue is that the fourth requirement is not relevant for asserting that some benefit or enrichment is unjust. Instead, it tends to assess whether, despite the fact that some party was unjustly benefited at the expense of another,

231 See Johnston and Zimmermann (2004). 217 there are further reasons that speak against the duty to restitute such a benefit or enrichment to another party.232

i. The Benefit Condition

In unjust enrichment actions, the first requirement is that the defendant has been enriched in the sense that her or his patrimony has increased. Here, the increase in the patrimony is measured by comparing its current state with the state it otherwise would have had. Given that I argue for making present members of developed countries bear greater burdens in the distribution of mitigation and adaptation costs, I must show that in some sense they have benefited due to both their pre-1990 emissions of GHG and those of their predecessors. In this regard, Meyer and Roser (2010) highlight the strong correlation between having emitted more in the past and having more benefits in the present owed to those emission generating activities (p. 230). Current available infrastructure is probably the clearest example of benefits we enjoy today owed to past emission generating activities as many of them were built before we were conceived. Among other things, this includes railroads, streets, health and educational systems (Meyer 2013, pp. 606-608), public parks, pipelines, sewers, electrical and gas networks. Chancel and Piketty (2015) show that Western Europe and the United States, which enjoy some of the highest levels of well-being,233 are responsible more than 45% of global historical emissions from the industrial revolution through 2015 (2015, pp. 14-15).234 Finally, it is worth recalling that benefits from past emission generating activities consist not only in being wealthier but also in being less vulnerable to the adverse effects of climate change (Meyer and Roser 2010, p. 231). Therefore, it does not seem to be a hindrance to claim that currently living members of developed countries have benefited from historical emissions.

232 If we think in the legal context, the distinction between unjust enrichment and duties of restitution becomes clear. As Stephen Smith asserts, “The law of unjust enrichment and the law of restitution are distinct fields. The law of unjust enrichment is a body of ‘primary law’ that identifies the situation in which an unjust enrichment arises. The law of restitution is a body of ‘secondary law’ explaining the existence and content of duties to make restitution” (2009, p. 202). 233 Based on the human development index (HDI). See http://hdr.undp.org/en/content/latest-human- development-index-ranking 234 The authors also highlight that, in 1820, Europe was responsible for more than 95% of global GHG emissions; in 1920, the United States for 50%; and now Europe and the United States represent around 25% of total GHG emissions of (Chancel and Piketty 2015, p. 15). 218

ii. The “At the Expense of” Another Party Condition

The second requirement of unjust enrichment is that the benefit must be obtained at another party’s expense. This condition is almost ubiquitous in all legal systems that contain unjust enrichment actions. For instance, the first part of Article 1794 of the Argentine Civil and Commercial Code (Law Nº 26 994) characterizes the idea of unjust enrichment (called in that legal system enrichment without cause) as follows: “Any person who enriches himself at the expense of another without a legal cause is obliged, to the extent of his benefit, to compensate the patrimonial detriment of the impoverished person.”235

But what does at the expense of mean? Peter Birks (2004) explains this expression by asserting that if one person, C, pays to another person, D, a sum of money, the money D receives is at C’s expense in the sense that the money comes from C (p. 497). However, as Birks (2004) notes, at the expense of is often used for expressing that the benefit was obtained by wronging another person. For instance, if D is paid for harming C, D benefits at C’s expense since he obtained money from wronging C (p. 497). According to Birks, “this is the ‘wrong’ sense of ‘at the expense of.’ It is the wrong sense in that C relies upon a wrong to connect him to D’s enrichment. And it is the wrong sense in that it cannot be admitted to the Law of unjust enrichment” (2004, p. 497). The purpose of the distinction between two different uses of the expression at the expense of is to show that when we speak about unjust enrichment actions, we do not refer to wrongful behaviors but only to the fact that some party was enriched or benefited from another. For unjust enrichment actions to be applicable, it is only relevant that the claimant “identif[ies] himself as the person from whom the defendant was enriched” (Birks 2004, p. 499). It does not require that the defendant or someone else wronged the claimant.

These considerations are relevant for the discussion about how to distribute remaining permissible emissions. This is because for claiming that present members of developed countries have benefited at the expense of present members of developing

235 The first part of article 812 of the German Civil Code is well-known among civil law systems according to which “A person who obtains something as a result of the performance of another person or otherwise at his expense without legal grounds for doing so is under a duty to make restitution to him.” Hanoch Dagan highlights (at that time draft of) the US Restatement (Third) of Restitution and Unjust Enrichment as follows “A person who is unjustly enriched at the expense of another is liable in restitution to the other” (2004, p 11). All these regulations emphasize that the benefit has to be obtained at the expense of another party. 219 ones, we do not need to show that emitting GHGs in the past was wrong, but only that the benefits of the present generation of developed countries come from, in some relevant sense, the present generation of developing ones. Thus, for the climate justice debate, I have to explain why we can consider that present members of developing countries can be identified as those from whom the present members of developed countries benefited.

The paradigmatic case of unjust enrichment occurs when the plaintiff mistakenly pays a debt twice to the defendant, and he makes a claim to revert the payment of the non- existent debt (Klimchuk 2009, p. 82). In this case, one party’s benefit occurs at the expense of the other because the money one party receives comes from the other. There is a correspondence between benefits and harms. In this case, benefits and harms are causally linked. There is an action, a mistaken payment, that causes both the defendant’s benefit and the claimant’s harm.

This bipartite model does not apply to climate justice discussion about benefits from past emission generating activities. This is because neither the enriched party, present members of developed countries, nor the party from whom they have benefited, present members of developing countries, has done anything regarding the displacement of goods from one party to another. However, unjust enrichment cases also include situations in which although the defendant is benefited and the plaintiff suffers harm, the defendant and the plaintiff caused neither.

Two interesting cases might shed light on why currently living members of developed countries have been benefited at the expense of currently living members of developing countries owed to historical emissions, even if they caused neither harm nor the benefits at stake. The first is the 19th century French Boudier case236 recounted by Visser as follows: “a seller of manure to a tenant of a farm could not recover the price from the tenant, who became insolvent and canceled the tenancy, transferring the harvest to the owner. Therefore, the seller proceeded against the owner and was allowed to recover the latter’s enrichment that resulted from application of the manure to the land” (2004, p. 560). This case is more similar to climate justice discussions. In Boudier, the argument for unjust enrichment of the farm owner is premised on the fact that a third party, the tenant, transferred the harvest in a way that benefits him at the expense of

236 Cass. Req., June 15th, 1892, Patureau-Miran v Boudier, DP 1892.1.596; S. 1893.1.28. See Descheemaeker, (2018). 220 another party, the seller of fertilizer. Similarly, the argument for unjust enrichment of present members of developed countries is premised on the fact that a third party, their predecessors, emitted GHGs in a way that benefited them at the expense of another party, present members of developing countries. In cases like these, neither the defendant nor the plaintiff cause harm or benefits. There is only a correlation or correspondence between them.237

The second case is the 1991 English precedent Lipkin Gorman (a firm) v Karpnale Ltd.238 In this case, a firm’s partner used money from the company’s bank account to gamble at a club in London (property of Karpnale Ltd). The company was unable to sue the partner since he was in prison and without money. The company sued the club and succeeded in recovering the money (Birks 2004, p. 514).239 This precedent, like the Boudier decision, has similarities with the case for unjust enrichment owed to historical emissions. First, in the climate problem, the past generation of developed countries benefits their successors at the expense of the present generation of developing countries. This is similar to Lipkin Gorman in the sense that one party (the gambler) benefits another (the club property of Karpnale Ltd) at the expense of a third party (Lipkin Gorman). Second, in both cases, those who perform the activity cannot be sued or prosecuted. In the climate case because they are already dead, and in the legal case because the partner was destitute.

Still, even if this outline of unjust enrichment in three-party relations is accepted, there is an additional complication for claiming that the benefits enjoyed by the present generation of developed countries have been obtained at the expense of the present generation of developing ones. This point is highlighted by David Heyd when he notes that “after all, the industrial societies did not actually take anything (property, land, goods, labor) from the other countries” (2017, p. 37). No good has been displaced from one party to another, as unjust enrichment actions seem to require.

In response to this problem, it is possible to assert that, as in many legal systems, for enrichments to be unjust, it is not required that some good has been actually

237 Kit Barker asserts for these types of cases that “[the defendant’s] legal responsibility for the gain [is] based on plaintiff’s lack of moral responsibility for that harm” (2009 p. 166) 238 Lipkin Gorman v. Karpnale [1988] UKHL 12 (June 6th, 1991): [1991] 3 WLR 10, [1988] UKHL 12, [1991] 2 AC 548 239 At the time the gambling contracts were void. 221 transferred from one party to another. A benefit can be obtained at the expense of another party when receiving such a benefit prevents another party from acquiring some good or even performing a certain profitable activity. This understanding allows for a plausible explanation of how the benefits of present members of developed countries have been obtained at the expense of the present members of developing ones. Remember that virtually all human activities now require emissions, directly or indirectly. Therefore, as explained in Chapter 5, there is a strong connection between emission-generating activities and personal well-being. Additionally, as also explained in Chapter 5, emissions are considered a limited resource. Due to the resource’s past use, there is too little left to use without causing wrongful harm to future generations. In this view, the benefits enjoyed by the present generation of developed countries due to historical emissions have been obtained at the expense of a better level of well-being of the present generation of developing countries. This is because the latter can no longer emit GHGs as they would have been allowed to otherwise without wrongfully harming future people.

I am not claiming that present members of developing countries are worse off than they would have been had the industrialization process not been carried out in developed world. The non-identity problem prevents us from making this claim.240 My claim is that historical emissions of developed countries caused a state of affairs in which the present generation of developing countries does not have enough remaining emissions to engage in economic progress that could improve their level of well-being to similar levels of those enjoyed by developed ones. In this account, developed countries’ unjust enrichment does not refer to the fact that some good has been transferred from developing countries to them. Instead, it refers to the fact that historical emissions of developed countries that benefit its current members prevent present members of developing countries from achieving a certain level of well-being by engaging in emission-generating activities.

Another way of putting this is by considering what Edward Page (2012) calls the constrained development approach to unjust enrichment in climate ethics (p. 315). In this view, the benefits enjoyed by currently living members of developed countries have been created in part by the same historical emissions that have caused that present members of developing countries to face a tragic dilemma. The dilemma consists of having to decide between: [a] emitting less GHGs than originally planned so that they can comply with

240 I discussed this problem in length in Chapters 2 (Section I) and 5 (Section I. ii). 222 their mitigation burdens (and the 1.5ºC or at least the well below 2ºC targets); or [b] not reducing the originally planned amount of GHGs so that they can achieve similar economic progress to that of industrialized states (Page 2012, p. 315). If developing countries intend to fulfill their mitigation duties, they can not engage in industrialization processes that allow their members to have decent or better standards of living. In this sense, the benefits enjoyed by present members of developed countries comes from the members of developing ones. The benefits obtained by currently living members of developed countries owed to their ancestors’ emissions have caused, to use Heyd’s expression, an “irreversible undermining of the opportunities of the later generations [of developing countries] to use that good” (2017, p. 38).

Something similar occurs concerning adaptation costs. Developed countries’ historical emissions have also caused a second tragic dilemma that present members of developing countries have to face. They have to decide whether to use the remaining permissible emissions to develop their economies with the cost that they probably could not take measures for adapting to the adverse effects of climate change. Alternatively, they can invest in taking measures to adapt to climate change’s adverse effects with the cost of probably not developing their economies. For this reason, the unjust enrichment doctrine that applies to climate adaptation discussions also responds correctly to the third objection above. Namely, it would be unjust to consider historical emissions for distributing adaptation costs since those emissions cannot be linked to specific climate events that harm currently living and future people (García-Portela 2021, p. 162). In the view I advocate here, the objection is met. For claiming that present members of developed countries have been benefited at the expense of developing countries, it does not matter that we cannot identify that this or that extreme weather event is caused by climate change, or even how much harm can be causally linked to past emissions. These factors do not matter because regardless of the cause of the climate events or harms that developing countries have to face, they cannot deal with them without compromising their option of expanding or enhancing their economies further. Having to face this dilemma, as explained above, is connected with the level of GHG emissions that developed countries released.241

241 This section benefited from many discussions on the topic I had with my colleague Laura García-Portela. 223

iii. The Unjust Factor Condition

To claim that certain benefits were obtained at the expense of another party is not to claim that those benefits are unjust, as the third requirement of unjust enrichment actions demands. This is an important requirement because, in the same way that not all kinds of harm fall in the realm of compensatory (or corrective) justice, as discussed in Chapter 4, not every benefit received at the expense of others falls in the realm of unjust enrichment. This point is of particular relevance for the discussion about how to distribute remaining permissible emissions.

So far, I have dealt with unjust enrichment by relying on both common and civil law traditions almost interchangeably. I did this, because for the purpose of this chapter, there are no significant differences between the two that justify dissimilar treatment. However, this changes when we consider the third requirement of unjust enrichment in detail. In most common law systems, enrichments are considered unjust if there is a positive reason that explains why the enrichment is unjust. In contrast, in most civil law systems, enrichments are unjust unless there is a legal explanation for the defendant’s claim (McInnes 2012, p.1055). For the climate justice discussion, this difference suggests that it is easier to argue for the duty of restitution owed to historical emissions from a civil law perspective.242

Reinhard Zimmermann, a prominent German legal scholar, asserts in reference to civil law systems that “Retention of the benefit of the part of the recipient is thus unjustified if the transferor was not obliged to make this transfer – if the transfer, in other words, was made without legal grounds” (1995, p. 406). Under the civil law model, the enrichment of the present generation of developed countries is unjust if, in some way, the benefits passed to them from the present generation of developing countries without a justified cause. The first cause usually discussed in German Law is contract (Zimmermann 1995, p. 407; Dannemann 2009, p. 37). Suppose that because of some international agreement the benefits from emission-generating activities have passed from the present generation of developing countries to developed countries either onerously or gratuitously. In that case, the enrichment of the present generation of developed countries cannot be unjust. However, this is not how things occurred

242 As Krebs asserts, “the starting point in [civil law systems, such as] Germany is that all enrichment are prima facie unjust, unless they can be justified” (2004, p. 79). 224 concerning climate change. Instead, the issue is that those benefits enjoyed by present members of developed countries stem from emissions of people who existed before the present generation of developing countries came into existence. Hence, it is hardly true, if not impossible, that presently living members of developing countries have voluntarily transferred, in any form of agreement or donation, the benefits of historical emissions enjoyed by currently living members of developed countries. In general, in civil law models, transfers without a contract or based upon a void contract have no validity. Thus, if we use this model for climate justice, the benefits obtained by currently living members of developed countries seem to be obtained without a justified cause.243

According to the civil law model, present members of developed countries seem unentitled to retain the benefits that stem from historical emissions since there is no just cause that allows for this. However, from the fact that there is no good reason for retaining or having something, it does not follow that there is a positive reason for claiming that the benefit is unjust. This consideration is at the core of the common law model of unjust enrichment since it requires showing an unjust factor, a positive reason, for claiming that the enrichment is unjust (McInnes 2012, p. 1055).

Peter Birks (1999) groups three families of unjust factors: (1) non-voluntary transfer, (2) unconscientious receipt, and (3) policy motivations; also expressed as: “‘I did not mean him/her to have it!’ ‘It was shabby of you to receive it!’ ‘There is a good reason for giving it back’” (p. 26).244 Respectively, these three kinds of unjust factors that ground restorative remedies are labeled as (1) claimant-oriented, (2) defendant-oriented, and (3) policy-oriented (Virgo 2015, p. 121). From the above list, a suitable candidate for explaining why the enrichment or benefit of currently living members of developed countries owed to historical emission should be considered unjust lies in claimant- oriented unjust factors (1), and one claimant-oriented unjust factor usually highlighted in

243 Another possible just cause of transfer occurs when there is a legal obligation of doing so. Needless to say that there is no legal or moral international obligation to transfer the benefits from developing to developed countries. 244 As Birks (1999) notes, this model is based on the grounds of the law of restitution established by Lord Mansfield in the 1760 case Moses v Macferlan (p. 28). Lord Mansfield asserted: “[This action of money had a received] lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express or implied) or extortion; or oppression; or an undue advantage taken of the plaintiff’s situation, contrary to laws made for the protection of persons under those circumstances” (Virgo 2015, p.120). It is worth mentioning that although Birks was an important champion in proposing a standard of unjust factors for restitution, he ends up rejecting this model in favor of a more civil approach upon which the only ground for restitution is the absence of an explanatory basis for the enrichment of the benefited party (Birks 2005, Ch. 6; see also Virgo 2015, pp. 127-132). 225 the literature is the absence of intention in the transfer (Birks 1999, pp 26-28; Virgo 2015, pp. 121-125). This unjust factor fits well for our discussion, as I show below, because present members of developing countries have no intention to benefit present members of developed countries at their expense.

Cases of unjust benefits in which absolutely no intention can be identified in the plaintiff’s behavior are usually discussed by referring to the unjust factor of ignorance (Birks 1999, p. 26; Virgo 2015, p.152). Consider money transfers. If we accept that a mistaken transfer can provide grounds for restitution because the intention of transferring money was impaired, the most widely accepted unjust factor of enrichment, transferring some good with no intention at all also has to be an unjust factor of enrichment. In both cases, the autonomy of the plaintiff is affected.

Some authors assert that what is at stake in cases of ignorance is not that the claimant did not know about the transfer but the fact that he or she was powerless in preventing the conduct that caused the enrichment of the defendant at his or her expense (Burrows 2012, pp. 92-96). To accept that powerlessness to prevent the conduct that benefited the defendant is a factor capable of making an enrichment unjust helps explain why present members of developed countries have unjustly benefited from historical emissions. This is because the current generation of developing countries did not exist when past members of developed countries emitted GHG in a way that also benefited their descendants. Moreover, if they did not exist, they had no power to prevent past members of developed countries behaving as they did. Since, as explained above, the enrichment of currently living members of developed countries was obtained at the expense of the currently living members of developing countries and, given that the latter was powerless in preventing historical emissions of developed countries, then the enrichment of the former is unjust.

Against this view, however, it can be objected that although both past and present members of developed countries were benefited at the expense of present members of developing countries, only the current generation of developed countries is subject to the duty of restitution. This seems to be an expression of what Page (2012) calls chronological unfairness (pp. 317-318). The objection is highlighted by Simon Caney when he argues that since historical emissions also benefited past generations, “it would

226 be unfair to require current beneficiaries to pay for all of the benefits generated by the activities which cause global climate change” [emphasis in the original] (2006, p. 473).

The doctrine of unjust enrichment helps in explaining why it is not unfair to consider only the current generation of developed countries as unjustly enriched even if historical emissions also benefited their ancestors. Two points are worth mentioning. First, the benefits that can be considered unjustly obtained are those enjoyed by currently living members of developed countries. Those benefits consumed by their predecessors while living do not count. Imagine I steal €100 from you and give €50 of the stolen amount to my friend. If you can claim something from my friend based on the unjust enrichment doctrine, your claim cannot be more than €50 since that is the amount of her enrichment. The claim is that even if many benefits have been obtained at the expense of present members of developing countries, not all those benefits enriched present members of developed ones. In this view, benefits from historical emissions that only benefited past people, and not currently living members of developed countries, should not be considered in defining the duty of restitution.245

Second, there is also a point concerning the moment in which the benefits should be considered unjust. The idea of the unjust enrichment doctrine is that those who were unjustly benefited at the expense of another should restitute those benefits. Thus, it is not enough to claim that someone was benefited at another’s expense to be bound by a duty of restitution. It is also necessary to be unjustly benefited. The benefit obtained through historical emissions can be considered unjust only after 1990, even if before that date many benefits were enjoyed at the expense of another party. This is because being benefited or being enriched constitutes a state of affairs and as such it can be just at a particular time T1 and become unjust at a different time T2 because of changes in circumstances.

The Canadian case Mack v. Attorney General of Canada246 helps in explaining this point. The case draws on the Chinese Immigration Act, 1885 that required Chinese immigrants entering Canada to pay a “head tax.” This tax progressively increased,247 and

245 According to Lukas Meyer (2021b), those benefits amount to around 61% of the total historical emissions. 246 Mack v. Canada (Attorney General) Between Shack Jang Mack, Quen Ying Lee and Yew Lee, plaintiffs (appellants), and Attorney General of Canada, defendant (respondent) [2002] O.J. No. 3488; 60 O.R. (3d) 737and 60 O.R. (3d) 756 247 The tax was $50 in 1885 and increased progressively to $500 in 1903 (Klimchuk 2005, p. 307). 227 it was replaced in 1923 by new legislation the Chinese Immigration Act, 1923 that almost entirely excluded Chinese immigration to Canada. This discriminatory legislation was repealed in 1947.248 A Chinese immigrant who paid the tax, and the son and the widow of another immigrant who also paid, put forward an unjust enrichment action in the name of all the payees and their descendants. The unjust enrichment action required the restitution of the taxes paid under the Chinese Immigration Acts.249 Although it is beyond doubt that the Chinese Immigration Acts were, morally speaking, tremendously unjust, they were legally valid at the time. Thus, the taxes paid cannot be considered legally unjustified. How, given this fact, can we justify that the plaintiffs obtain restitution?

Lionel Smith (2005) provides an interesting perspective on unjust enrichment actions. In commenting on this case, he highlights two important facts. First, enrichments in general, and here the defendant’s enrichment in particular, constitute(s) an ongoing state of affairs. Second, in 1985, Section 15 of the Canadian Charter of Rights and Freedoms entered into force. It prescribes: “equal treatment before and under the law, and equal protection and benefit of the law without discrimination” (p. 297). If we combine these two facts, we can see that although the defendant had been enriched from the collection of taxes since 1885, given that the authority of the Chinese Immigration Acts is subordinated to the Charter of Rights and Freedoms, from 1985 those enrichments become unjust (Smith 2005, p. 297). Smith’s (2005) conclusion is that for unjust enrichment actions to be applicable, it is not necessary that the past act was wrongful or that the benefit obtained was unjust at the moment that it was obtained. Since enrichments and benefits constitute an ongoing state of affairs, they might be just (or justified) at T1 and become unjust at a different time T2 because of changes in circumstances (p. 298). In Mack, even if the transfer of money was not legally invalid when the taxes were collected, retaining that money became unjustified in 1985 when Section 15 of the Charter of Rights and Freedoms was enacted. This can be understood as a case of reverse supersession since a state of affairs that was justified at a particular time becomes unjustified later because of some change in circumstances, here because of a legislative change.

Reverse supersession is not restricted to legal changes. In the context of the discussion about legitimate expectations, Allen Buchanan (1975) seems to suggest the

248 Klimchuk (2005, p. 307). 249 To be precise, the plaintiff also offered as a cause of action violations of section 15 of the Canadian Charter of Rights and Freedoms and that customary international law was violated (Smith 2005, p. 287). 228 possibility of reverse supersession when he criticizes one interpretation of Rawls’s 250 difference principle. He offers a case in which, at time T1, the institutions are arranged so as the worst off are maximally benefited by the basic structure X. However, at T2, circumstances change, making feasible a new arrangement Y superior to X in terms of the possibility of maximally to benefit the worst off (p. 420). In such a case, says

Buchanan, “the basic structure at T1 was just (according to the differen[ce] principle) – but now, at T2, it is unjust” [emphasis in the original] (1975, p. 420). Reverse supersession occurs when a state of affairs is just at T1 but because of changes in circumstances becomes unjust at T2.

The possibility of reverse supersession helps explain why it is not unfair to hold only currently living members of developed countries liable for unjust enrichment and not their predecessors as well. Even if it is true that the benefits were obtained in the past when their predecessors caused high amounts of GHG emissions, those benefits become unjust only when the problem of climate change was generally known in 1990 with the publication of the first IPCC report. Like in Mack, there was a seed of potential injustice (to use Smith’s expression) in obtaining benefits by releasing high amounts of GHG in the past. However, having those benefits was not unjust at the time. It only became unjust later when circumstances changed. In Mack, the change in circumstances was the enactment of Section 15 of the Charter of Rights and Freedoms. In the climate case, the change in circumstances was the awareness of the fact that because developed countries enjoy those benefits, developing ones cannot achieve better or, at least decent, levels of well-being without failing to comply with their intergenerational climate duties. Thus, the benefits currently living members of developed country enjoy owed to historical emissions are unjust. If this argument is correct, then currently living members of developed countries have been unjustly benefited at the expense of currently living members of developing countries.

II. Defenses Against the Duty of Restitution

In the last section, I argued that currently living members of developed countries have been benefited at the expense of currently living members of developing countries. In unjust enrichment actions, the defendant can accept that she was unjustly enriched and still resist being bound by a duty to provide restitution. She can resist the claim by making

250 Thank you to Romina Rekers for suggesting that I look at this passage from Buchanan. 229 use of defenses. As highlighted above, the fourth requirement of unjust enrichment actions is that there are no defenses able to block the claim for restitution (Birks 1992, p. 41; Dagan 2004, p. 27). Unlike denials that aim to show that there is no enrichment, or if there is that it is not unjust, defenses intend to show a further reason why the duty of restitution has been overridden or at least reduced in extent (Virgo 2015, p. 663).

In the climate justice discussion about distributing the remaining carbon budget, present members of developed countries can provide at least three reasons that might qualify as defenses. These potential defenses tend to show that even if they were unjustly benefited from historical emissions, they should not be bound by a duty of restitution or, at least, that such a duty has to be reduced. They can assert that [a] it would be inequitable to restitute all the benefits obtained at the expense of the present members of developing countries since many of them had been consumed before realizing that the benefits were not theirs to keep. The second defense [b] asserts that the goods to be restituted under current circumstances are not the benefits from historical emissions but those of the remaining permissible emissions (the global carbon budget). Since the benefits from the remaining permissible emissions are not the benefits from historical emissions but only something that can be considered their equivalent, currently living members of developed countries might claim that to engage in a remedial duty under such conditions would be unjustly harmful. The third defense [c] is that since present living members of developed countries have formed life plans relying on the benefits received at the expense of developing ones, to engage in a duty of restitution would also be unjustifiably harmful.

The first defense [a] is, in Birks (1992) terminology, enrichment-related, while the other two [b] and [c] are unjust-related (p. 126). Enrichment-related defenses tend to show that the enrichment or benefit suffered a detriment. In contrast, unjust-related defenses show that, even if there is no detriment in the enrichment, it is unjust to restitute the received benefit given how circumstances are now. These three can be understood as types of the change of position defense of unjust enrichment actions.251 This defense is based on reasoning similar to that behind the supersession thesis given that it gives normative relevance to changing circumstances. The change of position defense asserts

251 This defense was recognized by Lord Goff in Lipkin Gorman as follow: “At present, I do not wish to state the principle any less broadly than this: that the defense is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively to make restitution in full” (Bant 2009, p. 125). 230 that, owed to changing circumstances, the backward-looking duty to provide restitution is superseded by forward-looking distributive justice-based reasons. In the end, like the supersession thesis, it asserts that changing circumstances are able to shift the temporal orientation of justice.252

The general rationale of the defense change of position, as Charlie Webb explains, is that “the claimant interests cannot be secured in full without doing harm to the defendant” (2016, p. 226). Suppose it is accurate to claim that many benefits from past emission-generating activities have already been consumed by pre-1990 activities of blamelessly ignorant present members of developed countries, as in [a]. In that case, requiring full restitution of all the benefits that stem from historical emissions obtained at the expense of developing countries will harm currently living members of developed countries. It is also harmful that they have to give up something different to the received good, as in [b], and have to provide full restitution that prevents them from enjoying those remaining benefits upon which they have framed and organized their life plans, as in [c]. Hence, for each of these situations, as in the legal context in which the defense of change of position is pleaded, “the question is whether restitution should nonetheless be ordered and this harm is then done to the defendant or, alternatively, whether restitution should be denied, leaving the claimant instead to suffer the loss” (Webb 2016, p. 226).

i. The Benefits Are No Longer Here

According to the first defense, it would be inequitable that present members of developed countries have to restitute all the benefits received at the expense of currently living members of developing countries since many of those benefits have been consumed before they knew that those benefits did not belong to them [a]. This defense aims to reduce the duty of restitution because there was a detrimental change of position.253

252 One might also think that the Bona Fide Purchase defense applies here. One can assert that currently living members of developed countries should be protected because they enter into possession of the benefits of historical emissions in good faith. However, this defense requires something that is missing in the climate justice debate. Even if currently living members of developed countries came into possession of the benefits in good faith, they did not purchase but merely received them from their predecessors. The justification of this Bona Fide Purchase defense lies in the fact that “if purchasers are at risk of unexpected liabilities on account of the assets they buy, they’ll be discouraged from entering in such transactions” (Webb 2016, p. 230). In the climate justice debate, however, there is no contract or purchase to protect current and past members of industrialized countries or present or past members of developing ones. Thus, the defense is not available. 253 The detrimental change of position of present members of developed countries can be understood as a de-enrichment and as something irreversible since those benefits already consumed cannot be recovered. For this reason, supporters of both the de-enrichment approach and those of the irreversibility approach 231

According to the unjust enrichment legal doctrine, however, the fact that the benefit was reduced is not enough for the defense to proceed. “A causative link between the receipt of the benefit by the defendant and his or her change of position, so that, but for the receipt of the benefit, the defendant’s position would not have changed” (Virgo 2015, p. 682) is also needed. This condition requires a causative link between the inflow and the outflow in the sense that the benefited party incurred some expenditure only because he or she received the benefit.

In the typical example, the defendant received, for instance, £1000 and, because of this, he spends £200 at a party (Birks 1992, p. 135). Had he not received £1000, he would not have spent £200 on a party. In these situations, if the defendant had no reason to believe that the benefit was unjustified at the moment of the expenditure, he only would have to restitute £800. For instance, in Lipkin Gorman, the defendant put forward that his position has changed when it pays winnings to the thief. Here, the club (property of Karpnale) was able to prove that “but for [it]’s belief that the thief was entitled to gamble with the money, it would not have paid the winnings to the thief” (Virgo 2015, p. 687). In this case, although the defendant was unjustly enriched at the plaintiff’s expense, he successfully showed that the enrichment suffered a detriment that ought to be taken into account in defining the duty of restitution.

Currently living members of developed countries might try to provide a similar argument concerning the benefits they already have consumed before 1990. They might try to show a causative link between the receipt of the benefit and their detrimental change of position. They might claim that, but for their belief that they were entitled to use those benefits, they would not have consumed them as they did. Thus, those benefits consumed before 1990 should not be considered in determining the duty of restitution. In other words, they consumed those benefits only because they did not know that they were obtained at the expense of currently living members of developing countries. Had they known this fact, the defense continues, they would not have consumed the benefits.

concerning how to understand the detrimental change of position should have no complaint in that this condition obtains here. On this, see Bant (2009, pp 126-142). In civil law systems such as Germany, it is also the case that the defendant does not have a duty of restitution or that the duty can be reduced if the recipient of the benefit has ceased to be enriched or if the enrichment has been reduced (Zimmermann and du Plessis 1994, pp. 38-40). 232

Instead, they would have restituted them to currently living members of developing countries.254

This defense can succeed if it can be shown that knowing the status of those benefits would have made a difference in how currently living members of developed countries behaved. If it is certain, or at least, highly probable, that such knowledge would have made no difference in how they behaved, then we have no reason to believe that this defense can proceed. Thus, we need to assess whether having such knowledge would have made a difference in how currently living members of developed countries behaved.

Discussion in the literature is scant about whether currently living members of developed countries would have consumed benefits that stem from historical emissions if they had known that those benefits were obtained at the expense of currently living members of developing countries. Still, it is possible to find analyses concerning a somehow analogous topic, namely, whether developed countries would have emitted GHGs as they did if they had known of the harmful effects of climate change.255 The discussion on the latter issue I think shed light on the former.

Concerning historical emissions and after recognizing that people cannot be morally responsible for harmful effects of the emissions released in a state of excused ignorance, Daniel Butt argues “that more advanced scientific knowledge would have made no difference to the actions of the emitters or to those responsible for regulating them: even if they had known of the likely consequences of their actions, they would have carried on regardless” (2017, p. 66). Butt’s general thesis is that when an agent had acted in a state of ignorance concerning a particular effect of his act, and knowledge of that effect would likely have made no difference in how the agent behaved, such ignorance cannot block the attribution of remedial responsibility for the outcome actually produced.

Butt’s argument faces two challenges: an epistemic one and a normative one. The epistemic challenge rest on identifying whether people would have acted as they did had they known the relevant information. The normative challenge questions whether such a

254 A similar argument goes for the emission released by themselves before 1990. They can claim that had they known about this problem they would not have caused so many emissions themselves. Thus, they should be treated as if they had caused less emissions. Thank to Lukas Meyer for noting this point. 255 For instance, Zellentin (2014), and Butt (2017). 233 counterfactual condition is morally relevant for assigning remedial responsibility (Butt, 2017, p. 67).

Although I am sympathetic to Butt’s view, for the purposes of this chapter, it is not necessary to accept that someone can be held remedially responsible if the knowledge of the effects of some action would have made no difference in how the agent behaved. For the defense change of position to proceed, the only point that is in need of proof is whether but for the belief of present members of developed countries that they were entitled to use those benefits, they would not have consumed them as they did. I am not arguing that someone can be remedially responsible for a certain state of affairs caused by her if she would have behaved as she did had she known about the harmful effects of her action. This claim is much stronger than the one I need to show here. For my purposes, the only point I need to show is that knowledge would have made no or a slight difference in how currently living members of developed countries behaved. I face only the epistemic challenge. This is because the defense change of position proceeds on the assumption that the but for condition is central for blocking the restitutionary duty. Thus, if I can show that the condition is not fulfilled, this is enough to reject the defense.

As I argue below, I believe that the reasons Butt provides, for showing that knowledge about the harmful effects of historical emissions made no difference in how developed countries behaved, also speak in favor of considering that the knowledge of the fact that the benefits of historical emissions were obtained at the expense of currently living members of developing countries would have also have made no difference in how currently living members of developed countries had consumed them.

First, Butt highlights that developed countries are not particularly empathetic in their dealings with respect to the harms suffered by developing ones. It is usual that knowing the sufferings and harms developing countries will undergo does not make a significant difference in how developed countries behaved. As Butt (2017) asserts, they tend to privilege national interests, despite the harms other countries might suffer as a consequence of their actions (p. 67). We might think not only about how developed countries behaved historically concerning emissions of GHGs, as Butt does, but also about how they are now dealing with the current COVID-19 pandemic and the global purchase and distribution of vaccines. As of February 2021, for instance, more than half of all COVID-19 vaccine doses were purchased by developed countries. These states,

234 however, only represent 16% of the world population. Furthermore, only ten countries had administrated more than three-quarters of the total vaccines available at that time.256 These facts do not seem to speak in favor of developed countries being particularly empathetic concerning developing ones. Thus they do not seem to favor the view upon which had developed countries knew that they were consuming benefits obtained at the expense of developing ones that they would have behaved differently. On the contrary, such knowledge seems to make no difference at all.257

The second consideration Butt gives for showing that awareness about the harmful effects of historical emissions would have made no difference in how developed countries behaved is that “the development of knowledge about the effects of GHG emissions has not, in fact, served to check emissions in any kind of meaningful way” (2017, p. 68). A similar point seems to apply to the consumption of the benefits that stem from historical emissions obtained at the expense of present members of developing countries. Even after developed countries were aware, or at least, after they should have been aware, that the benefits from historical emissions were obtained at the expense of developing countries, they continued emitting as if benefits would not have been obtained at the expense of other countries. As of today, GHG emissions generally have not been cut back or reduced at acceptable rates by most developed countries.258 Given this, it is hardly true that present members of developed countries would not have consumed many benefits from historical emissions had they believed (before 1990) that they were entitled to use those benefits. After knowing that many benefits were obtained at the expense of developing countries, it is not only the case that developed countries did not return them but also that they keep

256 See Yamei (2021). 257 The fact that developing countries’ harms make no or a little difference in the behavior of developed countries in their dealings is strengthened if Thomas Pogge's (2004) point is accepted about how developed countries play a prominent part in those harms suffered by developing ones. In his view, the global institutional order is prominently shaped and upheld by developed countries (Pogge 2004, p. 265). On Pogge this order is not only better for developed and worse for developing countries, but it also has an important role in the maintenance and promotion of those domestic factors that prevent developing countries from becoming developed ones (Pogge 2004 pp. 272-276). In this view, the problem concerning developed countries’ behaviors is not so much that they are indifferent to developing countries’ harms, but rather that developed countries are involved in causing harm to developing ones. 258 As of December 2020, most countries’ National Determined Contributions are insufficient (many of them highly or critically insufficient) for achieving the target of keeping global temperatures well below 2º C. See, https://climateactiontracker.org/countries/ [Accessed February 5th, 2021] 235 in obtaining even more benefits at the expense of present and future members of developing ones.259

If this reasoning is accepted, this version of the defense of change of position does not proceed. This is because it is highly likely that knowing that many benefits from historical emissions were obtained at the expense of the present members of developing countries would have made no difference in how the present members of developed countries behaved. It is not the case that but for their belief that they were entitled to use those benefits, currently living members of developed countries would not have consumed those benefits as they did. On the contrary, the current behavior of the present members of developed countries concerning those benefits speaks in favor of increasing rather than decreasing the duty of restitution towards developing ones. This is because the more benefits obtained at the expense of developing countries are consumed by developed ones, the fewer benefits from the rest of permissible emissions remain for being used by the former.

ii. The Benefits Are Not the Same

The second defense [b] also recognizes that presently living members of developed countries benefited at the expense of present members of developing ones. However, it objects that the goods to be distributed under current circumstances are the benefits of the remaining permissible emissions (the global carbon budget). Since the benefits from the remaining permissible emissions are not the benefits from historical emissions but only something that can be considered their equivalent, it has to be assessed whether currently living members of developing countries have a valid claim to receive that equivalent good due to the unjust enrichment of the former. What reason, if any, can justify this shift?

This shift requires justifying why the duty of restitution can be instantiated by providing a substitute or equivalent good to the specific benefit that gave rise to it. In our context, the problem is that to oblige present members of developed countries to instantiate the duty of restitution not by returning the good obtained at the expense of

259 Given this, the present members of developed countries could not argue that had they known about this problem they would not have caused so many emissions themselves. 236 developing ones but by providing an equivalent good seems to imply that the former is unjustly harmed.

In standard cases of unjust enrichment, the object of the duty of restitution is the very same good or asset that the enriched party used without the authorization of the harmed one. If someone transfers €150 of mine to you without my authorization (or if I transferred them by mistake), the duty of restitution usually consists of you returning those €150 to me. However, the duty of restitution concerning the remaining permissible emissions has to be different. Past members of developed countries have already emitted GHGs at the expense of currently living members of developing countries. These emissions benefited not only themselves but also their successors. The problem is that neither the benefits already consumed nor those remaining in possession of currently living members of industrialized countries can be returned, but only something different.

It is true that but for the fact that past members of developed countries emitted a high amount of GHGs, present members of developing ones could have benefited more from their own emissions. However, it is also true that the historical emissions of past members of developed countries contributed uniquely to the well-being and way of life of the present members of those developed countries. Further, many benefits cannot be physically transferred from one country to another, and the benefits enjoyed by currently living members of developed countries contain the effort of their predecessors when they emitted GHGs.260 Given these facts, it makes no sense to demand the restitution of the specific benefits obtained from those past emission-generating activities. In this kind of situation, as Webb asserts for legal contexts, “there can, therefore, be no return or reallocation of these benefits, only offsetting, only the imposition of some measure which worsens the defendant’s position setting back his goals and interests, in equal measure to the advancement his use of the asset provided” (2016, p. 187).

Consider again the example in which someone transfers €150 of mine to you without my authorization. In such a case, you may have already spent that money on buying, for instance, a bicycle. However, this fact does not, by itself, exempts you from fulfilling the duty of restitution. In this case, if the unjust enrichment action succeeds, you

260 We can say, relying on Locke’s expression for issues of acquisition of resources, that when past people mixed their labor (1970, p. 288 [27:6]) in emitting GHG, the benefits currently living people enjoy also contain the effort of their predecessors. In this way, the benefits that present members of developed countries enjoy are unique and arguably not subject to restitution. 237 have to give back either the €150 or the bicycle. Similarly, for climate justice-based duties of restitution, we might demand that, if the specific benefits obtained at the expense of developing countries cannot be returned (as it seems to be the case), then the present members of developed countries should give up something equivalent to the value of the good they have obtained at the expense of currently living members of developing countries. In particular, the suggestion is that the duty to make restitution has to be instantiated by allowing currently living members of developing countries to have a larger share of the GCB than the share they would have received had the historical emissions not been taken into account. They should be allowed to benefit from an “extra” share of the remaining GCB.

The fact that past emissions of developed countries had the effect of reducing the available options of the present members of developing ones provides a way of justifying that the object of restitution consists of allowing developing countries to obtain a larger share of the GCB. Concerning the duties of climate mitigation, past emissions of developed countries caused currently living members of developing ones to face the tragic dilemma of: [a] either fulfilling their mitigation duties with the cost of not being able to develop their economy, and in some cases to reduce severe poverty; or [b] using cheap but polluting sources of energy so that they can industrialize quickly but at the cost of not being able to fulfill their mitigation duties. Concerning adaptation duties, as explained above, something similar occurs. Suppose these developing countries invest their resources in improving their economic conditions so that poverty is reduced. In that situation, it might be that they cannot use those resources to build infrastructure to counter the adverse effects of climate change and vice versa.261

The fact that historical emissions of developed countries benefit their present members makes it reasonable to ask them to take care of the harms and losses present members of developing countries have to face due to those historical emissions. In cases of unjust enrichment, although one party is harmed, there is no need and it is often not the case that such harm has occurred as a consequence of wrongdoing committed by another party. Still, there is no objection in claiming that those who have been unjustly benefited at the expense of another should remediate the harm suffered by another party,

261 This does not deny that there could be synergies between building infrastructure to improve the quality of life or in favor of the industrialization of a given country and that those assets can also serve as a means of adaptation to some of the adverse effects of climate change. However, this need not be the case. 238 even if in doing so they can only provide a different good from the one the benefited party has obtained.

Consider the following case of mistaken payment: Here [when I mistakenly pay you money], requiring you to make good my loss doesn’t set back your interest. By using the £100 I paid you to pay your phone bill, you were able to save £100 of your own. If you now have to pay me £100 you are left in the same position you would have been in had I not made the payment to you, no better but no worse off (Webb 2016, p. 195). Similarly, when we consider the unjust enrichment of present members of developed countries at the expense of developing ones, we can claim that requiring the former to make good for the loss the latter does not set back the former’s interests even if in doing so they have to provide not the specific benefits they obtained but an equivalent good. Imagine a developed country that expanded its railroad system owed to those historical emissions released at the expense of currently living members of developing countries. By releasing those emissions that would have belonged to currently living members of developing countries, they saved their own share of emissions for obtaining further benefits, for instance, a public and advanced system of education or a robust health system. If currently living members of developed countries have to pay to currently living members of developing ones employing some equivalent good of that already used, at most, they would be left in the same or equivalent position as they would have been had their ancestors not emitted GHG at the expense of currently living members of developing countries.

As in the mistaken transfer example, we are not shifting losses from one party to another but only ensuring that such loss is not suffered. The railroad system of this highly developed country indeed came from how its past members caused emissions. Moreover, it is also true, as Webb argues, that “the simple fact that you now have items of wealth at your disposal as a result of your unauthorized use of my assets gives me no interest in, and so no claim to, those items” (2016, pp. 195-196). Therefore, there is no doubt that railroads and other benefits stem from historical emissions belong to currently living members of this highly developed country.

However, this is not the issue. In this understanding of the duty of restitution, it is not challenged whether or not those benefits belong to currently living members of developed countries. The issue is whether present members of this developed country can

239 justifiably resist the claim of present members of developing ones that the former should remedy the current situation, on the basis that their interests are unfairly set-back when they give developing countries a good equivalent to the benefits obtained at their expenses. In these cases, what is relevant is that this equivalent good, in the climate case a larger share of the benefits of the remaining permissible emissions, is something that the present members of developed countries would not have but for the fact that their predecessors emitted GHGs at the expense of present members of developing countries.

To the extent of this “equivalent good” that developed countries have saved at the expense of developing ones, as Webb asserts for cases of money already spent, “requiring you [the enriched party] to make good of this harm leaves you worse off only by offsetting an advantage which ought not to have come your way, an advantage you made through (unknowingly) doing me [the other party] harm” (2016, p. 196). Requiring present members of developed countries to make good of the harm suffered by present members of developing countries leaves the former worse off only by offsetting an advantage they should not have had, which they obtained through (wrongless) harming of the present members of developing countries. Therefore, to oblige present members of developed countries to instantiate the duty of restitution by employing an equivalent good to that obtained at the expense of developing ones does not imply that the former is unjustly harmed. Hence, this instance of the defense change of position does not succeed.

iii. Benefits, Life Plans, and Status-Quo Expectations

The third possible defense arises as follows. Currently living members of developed countries benefited from the GHG emissions of their predecessors. I argued that those benefits had been obtained at the expense of the present members of developing countries. Therefore, there are strong reasons for the present members of developed countries to be bound by a duty of restitution based on how those benefits were obtained. Since the specific benefits obtained from historical emissions of GHG cannot be restituted, the duty of restitution has to be instantiated by providing to the present members of developing countries an equivalent good. In particular, such a duty of restitution has to be instantiated by giving present members of developing countries a higher share of the remaining GCB than the share they should have received had the present members of developed countries not benefited at their expense. However, there is a limit to the upper level of emissions the present generation of both developed and

240 developing countries can release to not wrongfully harm future people (argued in Chapter 5, Section I). Given this upper limit, to fulfill the duty of restitution implies that the present members of developed countries have to reduce their GHG emissions substantially. The problem is that such a reduction will frustrate some of their historically formed expectations.262 As Meyer asserts, “it is not controversial that people living in countries with a high level of per-capita emissions typically have a wide range of expectations that are likely to be frustrated if climate change is dealt with appropriately” (2021b). Based on these considerations, defense [c] asserts that since present members of developed countries formed life plans based upon the expectation of continuing, at least temporarily, to emit high amounts of GHG, and that to engage in the reduction required by the duty of restitution is incompatible with the fulfillment of those expectations, then it would be unjust to require them to fulfill such a restitutionary duty.

In unjust enrichment actions the defense based on the frustration of the (legitimate) expectations of the defendant is usually exemplified with the case in which the plaintiff mistakenly transfers money to the defendant who, as a consequence, believes that she is entitled to use and spend it. Here, even if the defendant is enriched at the plaintiff's expense, the change of position defense usually proceeds since the former was led to believe by the latter that the benefits obtained are of her own. Since the defendant has no responsibility in the formation of the expectation that she can use the money as if it were of her own, she makes plans based on the assumption that the money is hers to keep. Charlie Webb asserts that “the harm [the defendant] would suffer in these cases comes from [her] assumption that the money [she] receives from me was [hers] to keep, that [she] could go ahead and plan and spend on that basis” (2016, pp. 221-222). In this situation, if this person has to restitute the received good, then she is unjustly harmed because her (legitimate) expectation based on the possession and ownership of the received good is frustrated.

Something similar seems to occur when we analyze the duty of restitution that obliges present members of developed countries to reduce their emissions levels substantially. Like the person who received money mistakenly transferred from the

262 If the reduction is too radical, it can also be unfeasible. In the climate literature is sometimes considered that a feasible reduction rate of global reduction of GHG emissions consists of halving them each decade. This is the so-called “carbon-law” (Rockström et al., 2017). Here, I am assuming that the domestic reduction rate is compatible with this carbon-law. 241 claimant, present members of developed countries have no responsibility in the formation of the expectation of being able to carry on emitting higher levels of GHGs. Since they have formed life plans based on these expectations, like the person who received a mistaken transfer, to oblige them to reduce their level of emissions substantially seems to imply that they would be unjustly harmed. Based on this reasoning, these developed countries might try to justify a global scheme of distribution of the GCB in accordance with the contraction and convergence view. On this view (explained in Chapter 5, Section II), for the distribution of the GCB, each country starts with its current level of GHG emissions and converges to a future point in time on a globally common level of per- capita emissions.

However, there is a difference between the mistaken transfer example and climate change. In the mistaken transfer case, the claimant plays a role and contributes to the defendant’s belief that she is entitled to use the received money. This fact explains why the defense proceeds in this case. In unjust enrichment actions, when the claimant creates the expectation that the defendant can use and rely on the assets transferred, the former is responsible for that situation. In these cases, the defense of change of position proceeds (Webb 2016, pp. 226-228). However, when the plaintiff plays no role in creating the expectation that the defendant can rely on the benefits obtained at his expense, the defense can be rejected. This takes the clear form when the defendant himself plays a role and is responsible for bringing about the current state of affairs (Webb 2016 pp. 226-227).

In the climate debate, it is not only the case that present members of developing countries (plaintiff) played no role in the formation of currently living members of developed countries’ expectation in continuing emitting high amounts of GHG, but it is also the case that those expectations are formed by developed states themselves (defendant). This is because, as Meyer asserts, “highly industrialized states have played a constitutive role in shaping [the status quo-]expectations [of their residents] and continue to do so” (2021b). Hence, these states (defendant) cannot claim that they have no responsibility in the formation of the expectations of their citizens that now have to be frustrated in order for these countries to fulfill their intergenerational and international climate duties.263 Therefore, the change of position defense based on the status quo-

263 It is worth noting that currently living members of developed countries have no responsibility to form those expectations that might have to be frustrated in order for the state in which these people live to fulfill their intergenerational and international climate duties. Since the state in which these persons live is 242 expectations of the members of developed countries concerning their levels of emissions has to be rejected.264

Conclusion

In this chapter, I argued that currently living members of developed countries unjustly benefited at the expense of currently living members of developing countries. They are benefited not only because they are wealthier and have good infrastructure owed to historical emissions but also because they are less vulnerable to adverse effects of climate change. Those benefits were obtained at the expense of developing countries since historical emissions of developed ones deprived currently living members of developing countries of being able to fulfill their mitigation duties without compromising the development of their economies. Similarly, concerning adaptation duties, the present members of developed countries have been benefited at the expense of currently living members of developing countries since historical emissions of the former and those of their predecessors deprived the latter of being able to take adaptation measures without compromising their economic progress. The benefits are unjust not only because there was no just cause for transfer of those benefits from the present members of developing to the present members of developed countries but also because the former was powerless to prevent the conduct that benefited the present members of developed countries at their expenses.

I also argued that having been benefited at the expense of another generates a remedial duty to provide restitution. In particular, I argued that currently living members of developed countries have a duty to provide restitution towards presently living members of developing ones. I assessed three possible defenses against such a duty and

responsible for the formation of these expectations, these expectations have to be taken into account in the domestic distribution of the remaining permissible emissions. On this, see Meyer (2021b). 264 Because of similar reasoning, the “Estoppel” defense also has to be rejected. This defense intends to protect the recipient of the benefit when he or she is led to believe that the benefit was validly received. The success of the defense barred the claim of the plaintiff completely (Virgo 2015, p. 666). For the climate justice debate, one might think that since the current generation of developed countries were led to believe that they can enjoy the benefits from past emission generating activities, the claim for restitution should be stopped. However, this defense does not proceed because it requires that the plaintiff be responsible for making the defendant believe that they could enjoy the received benefits (Virgo 2015, p. 667), as it occurs in cases of mistaken payments. In the climate justice debate, however, currently living members of developing countries never did anything that could have led currently living members of developed countries to believe that they are entitled to enjoy the benefits from past emission generating activities. This is because those benefits have been conferred not by currently living members of developing countries but from the predecessors of the former. 243 argued that all of them fail. The first defense asserts that since many of those benefits had been consumed before present members of developed countries knew that those benefits did not belong to them, having to restitute them would cause unjust harm. As I argued, in the unjust enrichment doctrine, for a detrimental change of position to serve as a defense it needs a causative link between the receipt of the benefit and the change of position. Since it is highly likely that present members of developed countries would behave as they did even if they knew that those benefits did not belong to them, I argued that the but for condition is not met. It is not the case that, but for present members of developed countries belief that they were entitled to use those benefits, they would not have consumed those benefits as they did.

The second defense objects that the goods to be distributed under current circumstances are the benefits of the remaining permissible emissions and not those received from historical emissions. Thus, to instantiate the duty of restitution this way would be unjustly harmful. Against this objection, I argued that from the perspective of unjust enrichment actions, it is not challenged whether or not the specific benefits that stem from historical emissions belong to currently living members of developed countries. It is challenged the intention of the present members of developed country to resist the claim of present members of developing ones that the former should remedy the current situation. As I argued, what is relevant is that the equivalent good that is claimed is something that developed countries would not have but for their historical emissions. Thus, there is no objection in that the duty of restitution will be instantiated by allowing present members of developing countries to have a higher share of the benefits of the remaining GCB than the share they would have received had historical emissions not been taken into account.

The third defense is that it would be unjust to require present members of developed countries to fulfill the restitutionary duty since they have formed life plans based upon the expectation of continuing to emit high amounts of GHGs and that to engage in the reduction required by the duty of restitution is incompatible with the fulfillment of those expectations. Against this objection, I argued that present members of developing countries did not contribute to the formation of currently living members of developed countries’ expectations regarding continuation of high levels of GHG emissions. Instead, those expectations were formed by developed states themselves. For this reason, these states cannot claim that they have no responsibility in the formation of 244 the expectations of their citizens. Therefore, the change of position defense based on the status quo-expectations of the members of developed countries have to be rejected.

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CHAPTER 7 INTERNATIONAL CLIMATE DUTIES AND THE SUPERSESSION THESIS

Introduction

In the last two chapters, I provided two lines of arguments for justifying the duty of currently living members of developed countries to allow those of developing ones to have a larger share of the remaining GCB than the share they would have been entitled to use had historical emissions not been taken into account. The first argument (Chapter 5, Section III) asserts that this duty can be justified on the basis of having inherited a collective public bad as a consequence of the historical emissions of the predecessors of the currently living members of developed countries. The second (Chapter 6) claims that this duty is justified because present members of developed countries unjustly benefited at the expense of currently living members of developing ones.

However, I still have to consider how these views might potentially be affected by possible future changes in circumstances. In Section I, I show that the first argument grounded in having inherited a public bad seems, at first sight, to be particularly vulnerable to the supersession thesis. However, I then show that the perverse incentives for not fulfilling the duties that stem from having inherited a public bad can be minimized as soon as we realize that the collective inheritance might be transformed into a collective public evil if we do not comply with these duties. In this new context, not compensating the non-fulfillment of the original duty of redistribution is a distinct new injustice that is not superseded by changes in circumstances that annul or cancel the original effects of historical emissions.

The argument against the possible supersession of the duty of restitution, when it is understood as reflecting those reasons that speak in favor of the present members of developing countries having a larger share of the remaining GCB than the share they would have had, had historical emissions not being taken into account, is not straightforward. The issue is that unlike duties to provide compensation for having perpetrated injustices, duties of restitution based on (wrongless) unjust enrichments are

246 primary remedial duties. As primary remedial duties, their justification stems from the fact that there is a state of affairs to be remediated. The problem seems to be that if circumstances change so that the state of affairs is repaired, there is nothing left to remediate. Therefore, there is a perverse incentive for not fulfilling the duty to provide restitution, hoping for a change in circumstance that annuls it. In Section II, I develop this objection in more detail. In Section III, I appeal to a similar shift to the one undertaken in Section I for responding to this objection. I argue that the failure to fulfill a duty of restitution towards someone else constitutes an act of injustice. Further, this failure to fulfill the restitutionary duty causes additional harm. Thus, even if a change in circumstances repairs the original harm, the additional harm that stems from the time during which the restitutionary duty is breached still calls for compensation.

In Section IV, I consider how the passage of time affects the degree and weight of the duty to provide compensation. Concerning material compensation, I argue that in relatively short periods, the longer the time without paying compensation, the greater the amount of harm that can be generated and, accordingly, the greater the harm that might have to be compensated. However, I argue that this does not seem to be the case over relatively long periods. Something similar occurs with symbolic compensation. As I argued in Chapter 4, to the extent that fewer reasons why one had the duty not to commit the initial injustice can still be conformed to, the strength of the duty to provide symbolic compensation increases. However, as with material compensation, it seems that the strength of the duty to provide symbolic compensation decreases over long periods. Finally, in Section V, I argue that to provide compensation after circumstances change does not require altering a possible just distribution of goods. Needs-based sufficientarianism helps to explain why this is so. If the argument developed in this chapter succeed, I will have shown that the supersession thesis can plausibly accommodate the four requirements I outlined in the introduction of this work:

i. (Necessity) The supersession thesis should prioritize the concern for those persons that are below the relevant threshold of well-being (whether they are perpetrators, victims, or third parties). ii. (Compensation) It should allow for historical injustices to be compensated even in situations where the perpetrators live below the relevant threshold of well-being. iii. (Moral hazard) It should avoid or, at least, minimize perverse incentives for committing injustices or breaching duties.

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iv. (Distribution) If historical injustices ought to be compensated in distributively just worlds, compensatory measures should not alter the just distribution of goods. I. From Public Bads to Public Evils

In Chapter 5, I argued that the fact that past members of developed countries’ emissions harmed present and future members of developing countries could be understood as an inherited public bad that present members of developed countries have to nullify. The same holds, I argued, with respect to those undeserved benefits and underserved harms owed to historical emissions. These collectives inheritances provide reasons for developed countries to dispose of the public bads bequeathed by their predecessors so that present members of developing countries can have a larger share of the remaining GCB than the share they would have had historical emissions not being taken into account.

However, circumstances might change in a way that undeserved benefits and harms are neutralized. The fact that circumstances may change to bring about a distributively just world is a perverse incentive for developed countries not to fulfill their duty with respect to the current living members of developing ones. What if currently living members of developed countries do not engage in the duty of redistributing undeserved benefits and harms with respect to developing ones? What if they do not compensate for wrongless harms? What if they do not dispose of the public bad inherited from their predecessors?

Thinking about these questions provides an opportunity for analyzing the supersession thesis from an ex-ante perspective. In the first part of the dissertation, I assessed the supersession thesis mainly from an ex-post perspective. To consider this thesis from an ex-post perspective concerning historical injustices incentivizes focusing on remedial questions. Instead, when we analyze it from an ex-ante perspective, the main problem seems to be on avoiding perverse incentives for not fulfilling our duties of justice. From an ex-ante perspective, there seems to be a moral hazard at the core of the supersession thesis. This moral hazard is grounded on the fact that if the situation to be remediated is sustained long enough, future changes in circumstances could supersede the duty to redress it (Waldron 2004a, p. 248; Waligore 2017).

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One possibility for reducing the perverse incentives for currently living members of developed countries not to fulfill their duty with respect to developing ones is as follows. An inherited public bad might turn into a public evil if not adequately disposed of. As Meyer (2005) claims, past people can be causally responsible for bequeathing a public bad that harms present people without having committed injustices (p. 168). As I argued in Chapter 5 (Section III), having received a public bad requires disposing of it. In our case, this is instantiated in the duty to allow present members of developing countries to have a larger share of the remaining GCB than the share they would have had had this public bad not affected them.

However, this public bad might turn into a public evil if those that are obliged to get rid of it do not fulfill their duties. Let us accept that the present generation of developed countries is bound by duties towards the present generation of developing ones because of this collective inheritance. The duty of disposing of a collective public bad is primarily owed to currently living and future people that can be negatively affected and harmed for the collective inheritance (Meyer 2005, pp. 218 and 221). If we have such a duty and we do not fulfill it, then we commit an injustice. Not fulfilling our duty to redistribute benefits and harms owed to historical emissions constitutes a distinct new injustice that by itself calls for compensation. This injustice can no longer be understood within the context of an inherited public bad since we are no longer in the realm of mistaken intentions and lack of knowledge about the harmful effects of climate change. The collective inheritance has turned into a public evil.

Contrasting inherited public bads with public evils is a helpful tool for explaining why this is so. Meyer (2001) asserts that when we inherit a public evil, the justification of our obligations is forward-looking only since “we have no obligation of respect regarding anyone’s morally wrong undertaking” (2001, p. 275). If we do not dispose of the public bad bequeathed by our predecessors and we hand it down to our successors, we cannot claim that our behavior is innocent. On the contrary, since not counteracting the harmful and unequal effects of historical emissions constitute an injustice, our behavior is clearly morally wrong. Hence, if future people receive this inheritance, they will receive a public evil, not a public bad. They ought not respect our wrongful behavior of not having fulfilled our duties of disposing of the public bad which we inherited.

When we think about the behavior of our family members, we often think in this manner. Suppose one family member commits a very repugnant and morally wrong act. 249

In this case, it is not as easy to want to intend to avoid harm for the sake of this family member. Indeed, in some cases, given the repugnancy of our family member’s activities, we might want to break the relationship with him. We might want to avoid the harm for the sake of the affected person, for the sake of other members of the family, or our own sake, for instance, because our reputation could be undermined. However, these motives are not related to some respect to our family member’s wrongful and repugnant behavior.

Suppose the family member is our father and that what he did will harm others. However, he had no chance of knowing that his act would cause harm. We might want to intend to avoid or compensate the harm done not only for the sake of the victim, but also because we don’t want our father to harm others for actions that he thought were harmless. We should regard some collective inheritances of public bads in a similar way. When we inherit a collective public bad, like our father’s wrongless harmful behavior, the predecessors that bequeath it to us might have not behave wrongly. In the case of historical emissions, this is clear since they were in a state of excused ignorance. For this reason, we might owe them something, even if we accept that their behavior has the consequence of harming present and future people. The fact that ex hypothesis our predecessors believed that what they were doing was right without having the possibility to know that they were mistaken should be taken into account. For this reason, we might owe certain moral respect to their actions (see Meyer 2005, p. 219). If this is so, then the duty of the present generation of developed countries to redistribute benefits and harms owed to wrongless historical emissions is not only forward-looking but it contains a backward-looking aspect also. We owe this not only to present and future people but also we might owe something to our predecessors that were excusably ignorant of what they were doing.

Let us think again about the problem of the incentives to commit injustices while waiting for a future change in circumstances that nullify them. Suppose the view I advocated for in this section is accepted. In that case, our treatment of the present injustice should not differ substantially from the treatment of other injustices, such as those analyzed in the first part of the work. Once we accept that not fulfilling the duty of redistributing benefits and harms owed to historical emissions constitutes an injustice, then we can also assert (if the thesis I have advocated in this work is accepted) that the duty to provide compensation for not having fulfilled the duty not to commit this injustice exists in so far as at least one of the reasons why the present members of developed

250 countries had the duty not to violate their duties to redistribute benefits and harms with the members of developing ones can still be conformed to. Those reasons are not reduced to merely causing a certain state of affairs. Among the reasons for fulfilling those duties we found those that speak against violating duties of justice if we want to have, at minimum, decent relationships with our fellow humans, or for not undermining a minimal trust between states.265 Thus, even if circumstances change so that the undeserved benefits and harms are neutralized, those reasons that also speak for developed countries to engage in redistribution towards present members of developing countries might still call for some form of compensation.

II. The Moral Hazard Objection and Duties of Restitution

In Chapter 6, I provide a further argument why presently living members of developed countries are obliged to reduce their emissions so that the present members of developing countries can enjoy a larger per-capita share of the remaining GCB than that they would have had historical emissions not counted. The argument was that presently living members of developed countries have been unjustly benefited owed to the historical emissions of their predecessors at the expense of currently living members of developing ones. However, what if currently living members of developed countries do not fulfill their duty of restitution? How does this view respond to future changes of circumstances with the potential to supersede the remedial duty to provide restitution that stems from the unjust enrichment of the present members of developed countries?

In this work, I have advocated for a version of the supersession thesis upon which the obligation to redress injustices remains insofar as some of the reasons why the perpetrators of that injustice had the duty not to commit it can still be conformed to. I tend to think that this version of the thesis can minimize the perverse incentives for causing injustices. This is so, and it is worth reiterating, because not fulfilling a duty is to perpetrate a wrong. Usually, such a breach of duty gives rise to a secondary duty to provide compensation whose existence is owed to the non-fulfillment of the primary duty of not committing that wrong. Since the secondary duty to compensate exists for the same reasons as the primary duty does, to the extent that at least one of the reasons why such a primary duty existed remains undefeated, the breach of the primary duty not to perpetrate

265 I am aware that history shows that these reasons have not always been taken into account. Indeed, sometimes it seems that they were rarely taken into account in international relationships. However, this does not mean that they are not important reasons that should count. 251 a wrong or injustice still has moral weight that calls for compensation. In this view, perverse incentives for committing injustices are minimized since, in most cases of changes of circumstances, the secondary duty to provide compensation for the commission of injustices survives.

If this thesis can also be applied to duties of restitution grounded on the unjust enrichment doctrine, it would also be harder to find a case in which this duty can be superseded. On this view, if present members of developed countries do not fulfill their current duty of restitution, such a breach, like the breach of the duty not to commit injustices, should give rise to a secondary duty of providing compensation for not fulfilling the primary one. As such, this duty should also survive so long as at least one of the reasons why present members of developed countries are bound by the duty of restitution towards developing ones can still be conformed to.

However, it can be objected that it is not clear that the non-fulfillment of a duty of restitution grounded on the unjust enrichment doctrine give rise to a secondary duty of providing compensation. This is because, unlike the secondary duties to provide compensation because some injustice was committed, the primary duty to provide restitution grounded on the unjust enrichment doctrine does not arise from the commission of some injustice or wrongdoing. Hence, it is not clear that the version of the supersession thesis I have advocated can minimize perverse incentives for not fulfilling the duty of restitution grounded on the unjust enrichment doctrine.

To better understand this objection, it is helpful to analyze the distinction between primary and secondary duties. This distinction dates to John Austin and was intended to apply to legal rights and duties (Austin 1885, pp. 760- 772). However, we can apply it to other normative systems such as morality. Austin provides two criteria for distinguishing primary and secondary rights and duties. First, in his view, they are distinct because they have different sources:

Rights and duties not arising from delicts, may be distinguished from rights and duties which are consequences of delicts, by the name of ‘primary’ (or principal). Rights and duties arising from delicts, may be distinguished from rights and duties which are not consequences of delicts by the name of ‘sanctioning’ or ‘secondary’ (Austin 1885, p. 761).

For Austin, while secondary rights and duties emerge from the violation of the primary ones, primary rights and duties do not arise in this way. In this sense,

252 the duty not to commit injustices, such as the duty not to harm others, is primary because it exists per se, independently of any other right or duty. In normal cases, the distinction between primary and secondary duties helps explain why the duty not to commit injustices has a different source than the duty to redress or compensate them. Although the content of both duties is informed for most of the same reasons, while the former is usually understood as a primary one, the latter is secondary since it arises from the violation of the former.

In Austin’s view, primary and secondary duties can also be distinguished according to their function:

All the rights and duties I style sanctioning or secondary, are undoubtedly means or instruments for making the primary available. They arise out of violation of primary rights, and are mainly intended to prevent such violations: though in the case of the rights and duties which arise out of civil injuries, the secondary rights and duties also answer the subordinate purpose of giving redress to the injured parties (Austin 1885, p. 762).

One way of understanding this passage is by claiming that the function of secondary rights and duties is to prevent and to remediate the violation of the primary ones. This can be appreciated when we consider that from the violation of the primary duty not to commit injustices (or not to harm) usually follows a secondary or fallback duty that arises to remediate or compensate the violation of the primary one. As expressed by Stephen Smith, “A restitutionary duty is a duty to make things right; it is not a duty not to make things wrong” (2009, p. 190). Austin’s quote does not say so much about the function of ordinary primary duties. However, they can be considered as “duties not to infringe others’ rights to their person, property, or liberty” (Smith 2009, p. 189). They are duties not to make things wrong, to stick with Smith’s terminology.

When I analyzed the Conquest of the Desert, I highlighted that the past members of the state of Argentina perpetrated several wrongs: indigenous peoples’ lands were stolen, their institutional systems were displaced, and many of them were killed, injured, imprisoned, or expelled from their lands. For this kind of case, I supported a version of the supersession thesis that can minimize perverse incentives for committing injustices. This is because the content of the secondary duty to provide compensation, as I highlighted in the first part of this work, is partially determined by the reasons why someone has the primary duty not to commit injustices. Since the secondary duty to

253 provide compensation exists as long as at least one of the reasons why the primary duty exists can still be conformed to, it is difficult to find cases where injustices are fully and finally superseded. This is because it is highly unlikely that changes in circumstances can override all the reasons why someone had the primary duty not to perpetrate injustices. Since it is hard to find cases where injustices are superseded, the incentives for committing injustices hoping for its supersession are minimized.

Consider the duty to make restitution of (an equivalent good of the) benefits obtained from historical emissions of GHGs at the expense of present members of developing countries. Like the duties to provide compensation for the commission of some injustice, the function of the duty to provide restitution is remedial. This is because it intends to correct a situation that should not have occurred. However, unlike compensatory duties that arise from the commission of injustices, unjust enrichment- based duties to provide restitution are primary since they do not arise from violations of other rights or duties (Klimchuck 2009, p. 86; Smith 2009, p. 183).

The issue concerning primary remedial duties seems to be that if circumstances change so that the problem is repaired, there is nothing left to remediate. This is because much of what justifies having a primary remedial duty stems from the fact that there is a state of affairs to be repaired. It is a duty to make things right. Hence, when changing circumstances correct the state of affairs to be remediated, the duty seems to disappear.266 For this reason, if we reconsider climate change, the incentive of the present members of developed countries for not fulfilling their primary and remedial duty to return the benefits from historical emissions obtained at the expense of the present members of developing countries is substantially strong. They might wait, hoping for a change in circumstances that, by remediating the climate problem, releases them from having to fulfill their duty of providing restitution.

III. Future Supersession

For assessing whether and how to minimize perverse incentives for not fulfilling the (primary) duty of restitution, it is helpful to picture changes in circumstances that can plausibly supersede it. This possibility might occur because, in the same way that at a

266 In legal contexts, there is no right to damages if the unjust enrichment based duty of restitution is breached: “In the law’s eyes, the right to restitution appears either to be a right that cannot be infringed or a right whose infringement causes no loss” (Smith 2009, pp. 183-184). 254 time T1, the benefits from historical emissions were not unjust and they become unjust at 267 T2 (1990), those benefits can again stop being unjust at T3 if circumstances change so that the climate problem is repaired. After all, if the climate problem is fixed, those benefits enjoyed by developed countries seem no longer to be unjustly obtained at the expense of developing ones.

(Problem fixed) Imagine that the present generations of developed countries do not fulfill their international duties of restitution towards the present members of developing ones. They continue emitting GHG as if they would not have unjustly benefited at the expense of currently living members of developing countries. Suppose these emissions levels imply that the present generation is also violating the intergenerational duty not to wrongfully harm future people by their emission-generating activities. Consequently, there would be a time in the future in which people have to live under harsh conditions. However, after a considerable number of years in which people suffers restrictions and radical changes in their ways of livings, it is discovered not only that carbon sinks are ready to absorb GHGs again, but it is also the case that technology develops in a way that, for instance, economic growth, energy production, etc., do not require intensive emissions generating activities.268 Given the benefits obtained before the catastrophe, developed countries can increase the level of well-being of their members and expand their economies faster than developing ones. However, under this new set of circumstances, it is no longer true that developing countries face the dilemma of having to invest their resources either to fulfill their climate duties or to develop their economies. Thus, it is no longer the case that developed countries’ benefits from historical emissions are obtained at the expense of developing ones. Hence, in such a set of circumstances, it seems that the duty to make restitution of (an equivalent good of the) benefits obtained from historical GHG emissions no longer exists. A supersession-like effect seems to have occurred.

Would it be justified that those future members of developing countries claim those benefits their predecessors should have received before circumstances changed?269 For this to be the case, those countries that should have received the benefits before the

267 I argued for this in Chapter 6 (Section I. iii.). 268 Some empirical studies show that it is technically possible that in 139 countries 80% of energy demand could be met without fossil fuels by 2030, and fossil fuel use would not be required at all by 2050 (Jacobson et al., 2017). 269 I am considering the justification of the claim of those who live after the problem is fixed, not considering the situation of the intermediate generations that have to live under very dire conditions. These intermediate generations will suffer intergenerational injustices owed to the behavior of the present generation. Whether this intergenerational injustice can also be superseded is a further discussion that I cannot analyze here. I assessed different responses to this intergenerational problem in (Truccone-Borgogno, forthcoming). 255 change in circumstances have to endure into the present. As I argued in Chapter 2, this does not require numerical identity but only a continuous collective memory. Still, even if the group survives all those years, it must be explained why future members of a given group would have a justified claim for receiving these benefits given that at that time developed countries’ possession of the benefits from historical emissions seem no longer obtained at the expense of developing ones.

The claim of the future members of developing countries might be justified if it is accepted that the failure to fulfill a duty of restitution towards someone else constitutes an act of injustice. If this is accepted, developing countries are wronged when developed ones do not return to them the benefits obtained at their expense. The argument that failure to fulfill a duty of reparation constitutes in itself an act of injustice has been put forward in other contexts. For instance, Dan Butt argues that “the failure to pay compensation [for a wrongdoing] has the effect of aggravating the original injury” (2013, p. 254). In his view, “following an unrectified act of harmful wrongdoing, the victim lives in an ongoing context of injustice where the offender continues to act unjustly towards her” (Butt 2013, p. 253). Butt’s point is that the failure to pay compensation constitutes an additional and distinct injustice to the original one. Because of this, there is often additional harm that also needs to be corrected.270 Thus, if a change in circumstances annuls the effects of the original wrongdoing, the perpetrator of the injustice still has to compensate those additional harms that stem from the time in which he did not fulfill the reparative duty.

By relying on George Sher’s (2005) view, in Chapter 2 (Section I), I provided a similar response with respect to individual claims for compensation owed to historical injustices. A similar view can be applied when we think of those who do not fulfill primary reparative duties of providing restitution. The view is not the same because, here, unlike in Chapter 2, I am not thinking of individual claims for compensation but those that individuals might have for being members of a certain group. When present members of developed countries do not make restitution of (an equivalent good of the) benefits obtained from historical GHG emissions at the expense of the present members of developing countries, they are causing additional harm. Since this harm stems from the

270 A similar point seems to be supported by Catherine Lu when she argues that the failure to fulfill the political responsibility to redress structural injustices can be understood as additional wrongdoing to those perpetrated by the wrongful conduct of others. In her view: “Agents who perpetuate structural injustice implicated in wrongdoing are not morally responsible or blameworthy for the wrongful conduct of others, but they are morally responsible (and blameworthy) for failing to redress structural injustice and its consequences” (Lu 2017, p. 259). 256 violation of a duty, this harm is also wrongful and ought to be considered unjust. During the time that present members of developing countries do not receive the goods they should receive, the cost of not putting those goods into use increases. For instance, the lack of resources in some countries might force them to ask for international loans that might make sovereign debts an obstacle to economic development. Had they received an equivalent good to the benefits developed countries obtained at their expenses, they would not need to ask for international loans. This further harm for which the members of developing countries ask for compensation is not the original one consisting of not receiving a larger share of the remaining global carbon budget. It is a distinct one. Still, as in Sher’s (2005), this harm correlates with the original one (p. 191).

Given that the claims are made in the name of the group, these demands are unaffected by the non-identity problem. The claim is not that a certain individual is worse off had the duty of restitution towards his predecessors had been carried out. Instead, the claims are made in the name of the collective entity. It is the entity, in this case developing states, that are worse off than they would have been had compensation or restitution been provided immediately after the duty of restitution had gained justification. For this reason, when circumstances change and remediate the original harm, it is not always, nor does it seem to be often, the case that those harms that stem from not fulfilling the original remedial duty are also annulled. Hence, in the hypothetical example in which at T3 the climate problem is repaired so that the benefits developed countries enjoy no longer count as obtained at the expense of developing countries, there might still be a duty to provide compensation for the harm the latter have suffered during the time in which those benefits still counted as unjust.

If this reasoning is plausible, the perverse incentive for not fulfilling primary duties of restitution is minimized. Even if changes in circumstances correct the original state of affairs to be remediated, a duty to repair the harm caused for not remedying the state of affairs before the change in circumstances might still exist. Thus, on this view, the perverse incentives for not fulfilling the primary remedial duty of restitution are clearly counteracted. Since not fulfilling the remedial duty constitutes, by itself, an injustice, the duty to provide compensation for not having fulfilled the primary remedial duty remains as long as some of the reasons why the duty-bearers have an obligation to provide restitution can still be conformed to. Since avoiding further harms that stem from not fulfilling the duty of restitution is among those reasons, the now secondary duty to 257 provide compensation for not fulfilling the primary remedial duty of restitution has to remain at least as long as those further harms are not annulled. Furthermore, the longer the victim of injustice lacks the opportunity to use the resources she should have received, the greater the harm she suffers. This is because the longer the time without receiving the good, the greater the distance between the state of affairs in which they are and that in which they could have been otherwise.

IV. Compensation and the Passage of Time

There is a complication with the view just outlined. The idea that the longer the time without fulfilling the duty of restitution, the more likely that additional harms have to be repaired seems plausible only in certain contexts and during a certain time. Suppose you steal my bicycle and I can no longer use it for my daily office commute. In that case, it is reasonable to claim that every day that I cannot use my bicycle to commute to my office increases the harm I suffer. Because of this reason, you ought to compensate me not only for having stolen my bicycle but also for all those days in which I could not use it to get to my job. If someone gives me another bicycle, you still owe me compensation for the time in which I could not use it. If someone gives me a bicycle or even if you return it, you still owe me compensation for all the time I could not use it. The longer the time you do not restitute my bicycle, the greater the harm I suffer is.

However, there are other contexts in which it is not so straightforward that the longer the victim of injustice lacks the opportunity to use the resources she should have received, the greater the harm she suffers. Instead, the opposite seems to be true. George Sher (2004) argues that our normative judgments about what someone can be entitled to as a form of compensation in the world in which she receives compensation for the injustice suffered do not fully carry over to the actual world (p. 139). According to Sher, such transferability is limited, first, for all those things that the person could have done in the actual world to avoid the effects of the wrong and does not perform in the rectified world. Second, it is also limited “by the degree to which one’s entitlement in a rectified world are generated anew by one’s own action there” (2004, p. 140).

Let us reconsider Problem fixed. In this case, present generations of developed countries do not fulfill their international duty of restitution towards the present members of developing ones. In the rectified world, that is the world in which the injustice of not fulfilling this duty is corrected, one might assert that the present members of developing

258 countries would receive the required benefits in the sense that they would have a larger share of the remaining global carbon budget. By receiving this larger share, they could have developed their economies further and could have also built infrastructure to adapt better to the adverse effects of climate change. Thus, in this rectified world, after the tough times, given the benefits obtained before the catastrophe, like developed countries, they could also have increased the level of well-being of their members and expanded their economies quickly.

However, it does not seem to be accurate to say that in the actual world, in which developing countries did not receive the extra share of the GCB, they would be entitled to be compensated so that they receive all the goods they would be entitled to in the rectified world. The goods of the rectified world are partially the result of actions and policies that developing countries would have performed in this world after the initial injustice and did not pursue at all in the actual world. Given this, developing countries should not be entitled to claim as a form of compensation those goods that they could have had in the rectified world if they would have used their extra share of the remaining GCB wisely. What they can claim is the opportunity to have those goods. However, as expressed by Sher, “the opportunity is clearly not worth as much as the goods themselves” (2004, p. 140). According to this thesis, therefore, what people should receive as a form of compensation in the actual world is less than what people would be entitled to receive in the hypothetical rectified world.

There is a further point highlighted by Sher (2004, pp. 140-141) when he considers the passage of time and how it affects the claims for compensation considering the implications of his view over time. His thesis, when applied to Problem fixed, is as follows. If the present generation of developing countries would have received the extra share of the GCB, such a restitution in the hypothetical rectified world would have been benefited not only them, but also the future generation of developing countries. However, the goods received by the future generation in the rectified world also depends on the choices and policies pursued by the present and the intermediate generations of developing countries in such a rectified world. Therefore, the longer the period of time that passes, the greater the influence of the compensation recipients’ own decisions, both in relation to what they would have done in the rectified world and what they have not done in the actual world to overcome the effects of injustice. As more time and generations pass, the amount of compensation to be received for the original injustice

259 appears to decrease. As Sher concludes, “Where the initial wrong was done many hundreds of years ago, almost all of the difference between the victim’s entitlements in the actual world and his entitlements in the rectified world can be expected to stem from the actions of various intervening agents in the two alternative worlds” (2004, p. 141). Given this, in Problem fixed, the claim of the future members of developing countries to receive material compensation because the present members of developed ones did not fulfill their restitutionary duty can be superseded. If this argument is sound, it is at least not always the case that the longer the time without fulfilling the duty of restitution, the more likely that additional harms have to be repaired. Instead, the opposite seems to be true.

The passage of time has a similar effect when we think about symbolic compensation. When I advocated for the continuity thesis for specifying modes of compensation, I asserted that compensatory duties are reparative since they attempt to conform to some of the reasons one had for fulfilling the duty of not committing injustices or wrongdoings. However, the remedy is incomplete. There is always a moral remainder. Symbolic compensation responds to this moral remainder. As I argued in Chapter 4 (Section VII), the weight of the duty to provide symbolic compensation is informed by the weight and number of reasons why one had the duty not to commit injustices that now are impossible to conform to, and from how imperfect the conformity with those reasons that are still available is. This idea suggests that the longer the time without providing any kind of compensation is, the greater the weight of the duty to provide symbolic compensation becomes. This is because the passage of time can increase the number of reasons where conformity is impossible. The change in circumstances might also increase the weight of the duty to provide symbolic compensation.

However, there is a point in which the reasons for providing symbolic compensation seem to no longer have moral weight. It does not seem to make sense to ask for symbolic compensation for something that occurred one or two thousand years ago. One explanation of this consideration is connected with the survival or endurance of groups over time. In Chapter 2, I argued that groups’ continued existence over time depends on the existence of overlapping chains of strong connectedness between present- day members and ancient members of some group. Chais of strong connectedness occurs when there is a chain of overlapping socially articulated and socially maintained shared customs, practices, narratives and institutions. This interpretation of continuous collective

260 memory helps explain why groups do not cease to exist when they gradually changed their customs, institutions, narratives and social practices over the years. However, in this understanding, it seems that the more time passes, there will be less strong connectedness between future and ancient members of the group, and, at some point, we must accept that the future members of a certain group are no longer in a relevant relationship with the very ancient members of the group that is connected by virtue of overlapping chains of strong connectedness. This suggests that if compensation is owed to the group who suffered the injustice, the weight of the duty to provide symbolic compensation would decrease as the connection between future members of the group and those who suffered injustice diminishes.

V. Compensation in Distributively Just Worlds

So far, I argued that the secondary duty to provide compensation survives as long as it is still possible to conform to some of the reasons why someone has the primary duty not to perpetrate the injustice that gave rise to the secondary duty to compensate. This thesis, as explained above, is capable of minimizing perverse incentives not only for committing injustices but also for not fulfilling primary remedial duties (moral hazard [iii] requirement of the supersession thesis). However, I still have to explain whether and how compensation can be provided in those scenarios in which the state of affairs that give rise to the remedial duty has been remediated by changing circumstances. The issue is that to provide compensation in these situations seems to be against the requirement that if injustices ought to be compensated in distributively just worlds, compensatory measures should not alter the just distribution of goods (distribution requirement [iv]).

Compensatory measures do not need to alter the just distribution of goods. First, it is not clear that after several years of not fulfilling a reparative duty, a change in circumstances that remediates the initial state of affairs can render a distributively just world. This is because, as argued above, not fulfilling a reparative duty causes further harm. These harms can also be understood as deviations of the baseline of distributive justice that calls for compensatory measures. It is worth recalling that the best theories of distributive justice are dynamic. They are not concerned with a fixed end-result distribution but also consider how individual actions and institutions intend to achieve

261 distributive results.271 If this is so, the duty to compensate those additional harms that stem from not fulfilling the original duty of restitution has to be understood as a duty favoring, rather than opposing, the correction of a wrongful deviation of the baseline of distributive justice. Hence, if the change in circumstances repairs the initial harms, compensating the additional ones that stem from not fulfilling the original duty of restitution does not conflict with distributive justice considerations. Thus, even if the hypothetical scenario in which future changes in circumstances repair the climate problem, to fulfill the remaining compensatory duties for the additional harms developing countries have suffered before the change in circumstances does not need to conflict with the demands of distributive justice.

Suppose we endorse a sufficientarian view of distributive justice. The sufficientarian view, as expressed in Chapter 5, comprises two claims:

The positive thesis: We have weighty non-instrumental reasons to secure at least enough of some goods (Shields 2016, p. 28).

The shift thesis: Once people have secured enough, there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further (Shields 2016, p. 30).

Now, let us accept that need-based sufficientarianism applies not only at the intergenerational level (as I argued in Chapter 5, Section I. iii) but also at the global or international level. This would be according to the necessity requirement [1] that the supersession thesis should be met to be acceptable. According to this requirement, the supersession thesis should prioritize the concern for those people that are below the relevant threshold of well-being. The positive thesis of need-based sufficientarianism asserts that we have weighty non-instrumental reasons to secure the fulfillment of the needs of people. If the change in circumstances caused some people to be below such a threshold, then to identify whether and how compensation should still be provided, we should ask who is below the threshold. Suppose the person below the threshold is negatively affected by the lasting impact of the historical injustice. In that case, we have not only distributive justice-based reasons for bringing him above the threshold but also those that stem from compensatory justice.

271 As Gosepath asserts in referring to distributive justice, “the moral quality of the way in which [the result] was achieved plays a role for the moral assessment of the result (2020, p. 14). 262

However, it might be that the change in circumstances did not cause the victim but the perpetrator of the injustice to be below the threshold. In such a case, if compensation is needed because of the lasting impacts of the historical injustice, then the only form of compensation available for not on infringing the necessity requirement is symbolic. Still, this would be according to the compensation requirement [ii]. According to this requirement, the supersession thesis should allow for historical injustices to be compensated even in situations where the perpetrators live below the relevant threshold of well-being. Providing compensation in these cases remains important, even if we only engage in symbolic measures. As explained in Chapter 4, when it is impossible to provide material compensation, carrying out acts of symbolic compensation helps express that we would provide real compensation if possible (Meyer 2004a, p. 180). Even so, if circumstances change again so that the perpetrator is no longer below the threshold, the duty to materially compensate the victim of the injustice might re-arise.

The shift thesis allows us to change the weight of the reasons for compensation above and below the threshold. When people are below the threshold, we should prioritize that people have enough. Below the threshold, distributive justice-based reasons are the most important ones. Instead, when people are above the threshold, the reasons for providing material compensation become more important and might even trump over those of distributive justice. This understanding helps to provide a version of the supersession thesis according to the distribution requirement [iv]. According to this requirement, if historical injustices ought to be compensated in distributively just worlds, compensatory measures should not alter the just distribution of goods. Need-based sufficientarianism thus understood allows for compensations above the threshold provided that in compensating people no one falls below the threshold of sufficiency.

Conclusion

I started this chapter assuming that the present members of developed countries have the duty to allow those of developing ones to have a larger share of the remaining GCB than the share they would have been entitled to use had historical emissions not being taken into account. In Chapters 5 and 6, I provided two lines of argument for supporting this view. According to the first line of argument, this duty can be justified on the basis of having inherited a collective public bad as a consequence of the historical emissions of the predecessors of the currently living members of developed countries.

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According to the second line of argument, this duty is justified because present members of developed countries unjustly benefited at the expense of currently living members of developing ones.

I recognized that these two lines of the argument look particularly vulnerable to the moral hazard objection that asserts that we have perverse incentives for committing injustices hoping for a change in circumstances that annul its effects. Concerning the first line of argument, I argued that the perverse incentives for not fulfilling the duty of disposing of the inherited public bad could be reduced once we realize that if we do not comply with those duties, the collective inheritance might be transformed into a collective public evil. It becomes a distinct new injustice that is not superseded by changes in circumstances that annul or cancel the original effects of historical emissions. Concerning the second line of argument, I contended that the failure to fulfill a primary remedial duty towards someone else causes not only additional harm, but also constitutes an act of injustice. If a change in circumstances repairs the original harm, those additional harms that stem from the time in which the duty of restitution is not fulfilled still call for compensation. Thus, perverse incentives for not fulfilling the primary remedial duty are minimized. It meets the moral hazard requirement [iii].

In this chapter, I also analyzed how the passage of time affects the amount and weight of the duty to provide compensation. Concerning material compensation, I argued that in relatively brief periods, the amount of compensation owed is likely to increase if it is not paid when it is due. This is because the longer the time without paying compensation, the greater the amount of harm that can be generated. However, in relatively long periods, the opposite seems to be true. The victim’s choices in the actual world and the necessary reduction in the amount of compensation from the hypothetical rectified to the actual world decreases the amount of compensation to be received. I argued that something similar occurs with symbolic compensation. Finally, I argued that the duty to compensate those additional harms that stem from not fulfilling the original duty, in some cases, can be understood as a duty favoring the correction of (wrongful) deviation of the baseline of distributive justice. This is because what counts as a distributively just world also needs to consider how the end-result is brought about. However, in other circumstances, this is not the case. To provide compensation might seem to be in tension with distributive justice concerns. For minimizing those tensions, I appealed to a version of the need-based sufficientarianism. In this view, when people are 264 below the threshold, we should prioritize that people have enough (necessity requirement [i]). Below the threshold of sufficiency, distributive justice-based reasons are the most important ones. Still, even if the perpetrator is below the threshold, symbolic compensation is not ruled out in these circumstances and can be provided (compensation requirement [ii]). Instead, when people are above the threshold, the reasons for providing material compensation become more important and are even more weighty than those distributive justice based reasons that apply above the threshold of sufficiency. To provide material compensation in these cases does not alter the just distribution of goods, provided that in compensating people no one falls below the threshold of sufficiency (distribution requirement [iv]). If my argument is correct, the four requirements I outlined in the introduction of this work can plausibly be accommodated.

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CONCLUSION THE TEMPORAL DIMENSION OF JUSTICE

I began this work by asking whether there are reasons to redress historical injustices. I hope I was able to provide a positive answer to this question. If my argument is correct, it should be clear that redressing historical injustices need not oppose distributive justice concerns.

I arrived at this result by scrutinizing different aspects of the supersession thesis. Starting from a classical version of the supersession thesis which asserts that “historic injustices may be overtaken by changes in circumstances so that a situation that was unjust when it was brought about may coincide with what justice requires at a later time” (Waldron 2004a, p. 237), I opened my research by considering a version of the supersession thesis according to which situations of need are able to shift the temporal orientation of justice. However, throughout this dissertation, I defended the view that it is inaccurate to claim that backward-looking reasons of compensatory justice lose their moral weight in situations of need. The version of the supersession thesis I advocated asserts that the obligation to redress historical injustices remains insofar as some of the reasons why the perpetrators of that injustice had the duty not to perpetrate it can still be conformed to. In this view, backward-looking reasons for providing compensation are still weighty in situations of need and scarcity. This is so for two reasons. First, even in those situations in which perpetrators are below the theshold, the duty to provide compensation, although of a symbolic nature, remains, and the strength of the reasons for fulfilling that duty of compensation is likely to be strong. Second, the reasons for providing material compensation do not disappear for ever just because the circumstances changed, rendering a world in which perpetrators live in situations of need. They remain dormant, waiting for a new change in circumstances that make it possible to provide material compensation without causing someone to have to live in dire conditions.

In defending this view, I questioned whether we can actually assess past policies as unjust. In Chapter One, I evaluated a specific set of policies carried out in the late 19th century in Argentina against indigenous peoples. I argued that these policies, the Conquest of the Desert, should be understood as a case of historical injustice. From a

266 perspective of critical morality, I argued that there is no objection to claiming that some past event or policy was wrong or unjust, even if at that time, people generally believed that what they were doing was not wrong or unjust. However, I recognized that no one should be blamed for failing to comply with moral criteria unavailable at the time in which they live. With respect to the Conquest of the Desert, however, I showed that there were valid moral criteria easily accessible when the military campaigns were carried out upon which those policies could have been deemed unjust. Thus, it cannot be asserted that those who perpetrated such an injustice cannot be blamed due to unavailability of valid moral criteria at that time.

Nevertheless, given changes in circumstances and the passage of time, the fact that some policy was unjust many years ago leaves open the question of whether it should be repaired today. In Chapter Two, I argued that with respect to the Conquest of the Desert, currently living Argentinian citizens have reasons for redressing the lasting impacts of that injustice. Particularly, I argued that currently living non-indigenous Argentinians can be considered members of the same community as their predecessors who bequeathed to them public evils that still harm indigenous people. By relying on Meyer’s notion of collective inheritance, I argued that these presently living Argentinians have reasons for disposing of those public evils connected with the Conquest of the Desert bequeathed by their predecessors.

With respect to those reasons for providing compensation owed to the lasting impacts of the Conquest of the Desert, I argued that many currently living indigenous persons could be considered harmed if, as a consequence of the military campaigns, they have a level of well-being that is below a threshold of normatively defined harm. Further, they can also have valid claims for compensation for having suffered an additional wrong if, after they have been born, their parents did not receive compensation for the injustices suffered during their lifetime. I also explained how presently living indigenous persons might also have claims for compensation in the name of the community they belong to. I argued that, although the claimants have to be members of a group that has suffered historical injustices and has continued to exist into the present, they do not need to belong to the very same group who suffered the past injustices. All that is necessary is the existence of a continuous collective memory between the members of the group making claims today and those of the group who suffered past injustices.

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In Chapter Three, I investigated one of the aspects of indigenous territorial rights violated during the Conquest of the Desert. I questioned whether it is justified to rely on Argentina’s institutions for dealing with issues that involve indigenous interests. I argued that for an institutional system to be legitimate, it has to accommodate both the takers and makers dimensions of citizenship. I contended that currently living indigenous and non- indigenous people should be part of the same institutional arrangement. The institutions of the state of Argentina may occupy such a role. This is because Argentine institutions are in an advantageous position for satisfying the interests that both indigenous and non- indigenous people have as takers of that institutional system. However, the Argentine state is deficient. Indigenous people’s interests as makers are not satisfied. In Argentina, there are still barriers connected with the effects of the Conquest of the Desert that hinder the involvement of indigenous people in the collective decision-making processes of the state. Thus, the supersession of the historical injustice is only partial: some effects of the forcible imposition of the institutional system over indigenous populations still need to be addressed. To redress this historical deficit, I proposed three measures to configure indigenous people in the role of makers of the Argentine institutional system. So long as these or equivalent polices are not enacted, the historical injustice of the forced imposition of the Argentine legal order over indigenous populations will not be superseded.

In Chapter Four, I considered a second aspect related to indigenous territorial rights. I discussed their claims for receiving their ancestral lands back. I argued that distributive justice concerns do not supersede by themselves reasons for compensatory justice. I analyzed Jeremy Waldron’s version of the supersession thesis applied to land in detail. I argued that if he intends to provide considerations on compensatory justice in addition to those of distributive justice, his version of the supersession thesis has to be constructed along similar lines of Jules Coleman’s annulment concept of corrective justice. In the annulment concept, wrongful deviations in the distribution of goods should be rectified. As in Waldron’s position, it does not matter whether the rectification of the deviation in the distribution of goods has been carried out by the perpetrator of the injustice or by a mere change in circumstances. Therefore in views of this kind, the normative force of the reasons of compensatory justice seem to derive from those of distributive justice. Thus in this type of view, it is not strange that forward-looking reasons of distributive justice can easily supersede historical injustices in situations of need.

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However, I argued that the obligation to provide compensation to indigenous populations remains insofar as some of the reasons why past members of Argentine state had the duty not to perpetrate the Conquest of the Desert can still be conformed to. This is one of the central theses of the dissertation. Grounded on this thesis, we can see how backward-looking reasons for providing compensation still count even if present people live in situations of need and scarcity. This is because the gains and losses to be rectified are not limited to deviations of a certain baseline of distributive justice. In particular, I argued that legitimate expectations and the intrinsic value of group membership (whose fulfillment might require the possession of land) can also be grounds for compensation. In this view, the effects of the injustice with respect to the frustration of legitimate expectation, and those associated with the fact that indigenous people cannot fully realize the value of group membership, are not superseded just because changes in circumstances annul gains and losses associated with deviations in the baseline of distributive justice.

I also argued that the supersession thesis needs to specify who is responsible for providing compensation. I argued that having wrongfully harmed others creates a normative relationship between perpetrators and victims of injustices and places the former in the role of being the primary bearers of the duty of compensation. For this reason, when changes in circumstances annul the consequences of injustices, a moral remainder is left. This moral remainder gives reasons for symbolic compensation. Since symbolic compensation is premised on backward-looking reasons, and those measures are required in circumstances of need and scarcity, it follows that circumstances of need and scarcity do not change the temporal orientation of justice, but only the specific measures needed for complying with justice’s demands.

In Chapter Five, I shifted perspective and analyzed the supersession thesis from an ex-ante perspective. In discussing the thesis from this perspective, I appealed to a second case study, climate change and the discussion about how to distribute the remaining carbon budget among different countries. I defended that theories of intergenerational justice help in specifying that budget. I argued that the upper limit to our emissions of greenhouse gases should be set so not to wrongfully harm future people. I argued that, before taking into account historical emissions, the remaining global carbon budget ought to be distributed according to the equal-per-capita view. However, the shares of the global carbon budget each country should receive ought to be qualified by considering historical emissions. I provided two lines of arguments for explaining why

269 this is so. First, the existence of a continued collective memory between currently living and past members of developed countries give rise to a duty based on having inherited a public bad. This public bad requires developed countries to allow currently living members of developing countries to have a larger share of the global carbon budget than the share they should have received had historical emissions not been taken into account.

The second line of argument for justifying this duty was provided in Chapter Six I argued that currently living members of developed countries had been unjustly benefited at the expense of currently living members of developing countries. They benefited owed to historical emissions not only because they are wealthier in general but also because those emissions helped build infrastructure that makes them less vulnerable to adverse effects of climate change. I argued that those benefits were obtained at the expense of developing countries since historical emissions of developed ones deprived currently living members of developing countries of being able to fulfill their mitigation duties without compromising the development of their economies. I argued that similar remarks apply to adaptation duties. I further showed that the benefits are unjust not only because there was no just cause of transfer from the present members of developing countries to the those of developed ones but also because the former were powerless to prevent the conduct that benefited the present members of developed countries at their expenses. The main conclusion of Chapter Six is that having been benefited at the expense of another generates a remedial duty to provide restitution. In particular, I argued that currently living members of developed countries have a duty to provide restitution towards presently living members of developing ones and that this duty can be instantiated by allowing present members of developing countries to have a higher share of the benefits of the remaining global carbon budget than the share they would have received had historical emissions not been taken into account.

In the final chapter, I argued that both lines of argument have enough tools for dealing with the perverse incentives that might arise from considering possible future changes in circumstances that repair the current state of the climate system. First, I argued that the perverse incentives for not fulfilling the duties of disposing of the inherited public bad are reduced since not complying with those duties transforms the collective inheritance into a collective public evil. In this sense, it becomes a distinct new injustice that is not superseded by changes in circumstances that might annul the original effects of historical emissions. Second, I argued that the failure to fulfill a primary remedial duty

270 towards developing countries also constitutes an act of injustice. If a change in circumstances repairs the original harm, those additional harms that stem from the time in which the duty of restitution is not fulfilled still need to be compensated.

To summarize, I defended a version of the supersession thesis according to which the obligation to redress historical injustices remains as long as some of the reasons why the perpetrators of that injustice had the duty not to perpetrate it can still be conformed to. This thesis can be applied not only to those cases in which the injustice consists of harming others but also when what it is unjust is not to fulfill a reparative duty that might have arisen even in the absence of prior injustice. Thus understood, the supersession thesis meets the four requirements stated in the introduction: [i] necessity, [ii] compensation, [iii] moral hazard, and [iv] distribution. This is because, first, this thesis need not accept that compensation is no longer owed when perpetrators live in situations of need. Even in those situations, some of the reasons why someone had the original duty not to commit injustices might still be conformed to. This is because providing symbolic compensation is compatible with prioritizing the well-being of those below the relevant threshold. This view is compatible with need-based sufficientarianism, which asserts that below the sufficiency threshold distributive justice-based reasons are the most important ones. In this form, the thesis still prioritizes the concern for those below the relevant threshold of well-being (necessity requirement [i]). This is clear since it does not recommend (and, indeed, it discourages) the provision of material compensation when the perpetrators are below the relevant threshold of well-being. Indeed, it accepts that under circumstances of scarcity, injustice can suffer a supersession-like effect. However, as argued in Chapter 4, it would be a case of what Waligore calls dormant supersession since claims for material compensation can re-arise when circumstances change again. This posibility plus the fact that the thesis allows for historical injustices to be symbolically compensated even when the perpetrators live below the relevant threshold of well-being means that the thesis meets the compensation requirement [ii].

Furthermore, need-based sufficientarianism allows for material compensation above the threshold of well-being without compromising distributive justice concerns. When people are above the threshold it is more likely that more reasons why someone had the duty not to commit injustices in the first place can be conformed to. Also providing material compensation need not go against the requirements of distributive justice. Therefore the thesis also fulfills the distribution requirement [iv]. According to

271 this requirement, if historical injustices ought to be compensated in distributively just worlds, compensatory measures should not alter the just distribution of goods. Need- based sufficientarianism thus understood allows for compensations above the threshold, provided that in compensating people the compensators do not fall below the threshold of sufficiency. Part of the perverse incentives for committing injustices stems from the fact that one might hope for a future change in circumstances that shift the temporal orientation of justice so that the duty to provide compensation no longer exists. If the duty to provide compensation survives both in a situation of need and when people live above the relevant threshold of well-being, then those incentives are reduced. For this reason, the thesis I defended also meets the moral hazard requirement [iii]. Therefore, the four requirements I outlined in the introduction can plausibly be accommodated. The supersession thesis, I can conclude, can reconcile the distributive and compensatory dimensions of justice.

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REFERENCES

Adams, Robert (1979). Existence, Self Interest, and the Problem of Evil. Noûs, 3(1): 53- 65. Aguerre, Anna (2008). Genealogías de familias tehuelches-araucanas de la Patagonia central y meridional argentina, Editorial de la Facultad de Filosofía y Letras de la Universidad de Buenos Aires. Aguirre, Sabrina (2017). Pueblo Mapuche, Estado, Economía y Tierras. Un conflicto en Vaca Muerta: Neuquén, 2010-2015. Cuadernos do Ceas, 240: 71-97. Alberdi, Juan B. (2017[1852]). Bases y puntos de partida para la organización política de la República Argentina, Biblioteca del Congreso de la Nación. Anaya, James (2012). Report of the Special Rapporteur on the rights of indigenous peoples on the situation of indigenous peoples in Argentina, UN. Human Rights Council. Special Rapporteur on Rights of Indigenous Peoples A/HRC/21/47/Add.2 Applbaum, Arthur (2019). Legitimacy: The Right to Rule in a Wanton World, Harvard University Press. Austin, John (1885) Lectures on Jurisprudence (or The Philosophy of Postive Law), Volumes I and II, London, John Murray, Albermarle Street, R. & R. Clark. Avellaneda, Nicolás (1910). Disertación. In Escritos y Discursos, TII: Discursos Universitarios y Biográficos (pp. 9-48). Compañía Sudamericana de Billetes de Banco. Axelsen, David and Nielsen, Lasse (2015). Sufficiency as Freedom from Duress. The Journal of Political Philosophy, 23(4): 406-426. Bandieri, Susana (2000). Ampliando las Fronteras: la Ocupación de la Patagonia. in M. Lobato, (Dir.) Nueva Historia Argentina: El progreso, la modernización y sus límites (180-1916). Vol 5. (pp. 119-177). Ed. Sudamericana. Bant, Elisse (2009). The Change of Position Defense. Oxford University Press. Barker, Kit (2008). Responsibility for gain: Unjust factors or absence of legal ground? Starting points in unjust enrichment law. in C. Rickett and R. Grantham (eds.) Structure and justification in private law: Essays for Peter Birks. (pp. 47-74). Hart Publishing. Barker, Kit (2009). The nature of responsibility for gain: Gain, harm and keeping the lid on Pandora’s box. in R., Chambers, C., Mitchell and J. Penner (eds.) The

274

Philosophical Foundations of the Law of Unjust Enrichment. (pp. 146-18). Oxford University Press. Bayer, Osvaldo (ed.) (2010). Historia de la crueldad argentina: Julio A. Roca y el genocidio de los pueblos originarios. El tugurio. Beitz, Charles (1989). Political Equality: An Essay in Democratic Theory. Princeton University Press. Bell, Derek (2011a). Global Climate Justice, Historic Emissions, and Excusable Ignorance. The Monist, 94(3):391-411. Bell, Derek (2011b). Does anthropogenic climate change violate human rights?. Critical Review of International Social and Political Philosophy, 14(2):99-124. Bello, Álvaro (2011). Nampülkafe. EL viaje de los mapuches de la Araucanía a las pampas argentinas. Universidad Católica de Temuco. Birks, Peter (1992). Restitution – The Future. The Federation Press. Birks, Peter (1999) The Law of Restitution at the End of an Epoch. Western Australian Law Review, 27:13-64 Birks, Peter (2004). ‘At the expense of the claimant’: direct and indirect enrichment in English law. in D. Johnston, and R. Zimmermann, (eds.) Unjustified Enrichment: Key Issues in Comparative Perspective. (pp. 493-523). Cambridge University Press. Birks, Peter (2005). Unjust Enrichment, Oxford University Press. Boonin, David (2014). The Non-Identity Problem and the Ethics of Future People. Oxford University Press. Bonfiglio, Juan, Salvia, Agustin and Vera, Julieta (2020). Deterioro de las Condiciones Económicas de los Hogares y Desigualdades Sociales en tiempos de Pandemia. Observatorio de la Deuda Social Argentina de la Universidad Católica Argentina. Botana, Natalio (1997). La tradición republicana. Alberdi, Sarmiento y las ideas políticas de su tiempo, Sudamericana. Bovens, Luck (2011). A Lockean defence of grandfathering emission rights. In D. Arnold, (ed.), The Ethics of Global Climate Change, (pp. 124-144). Cambridge University Press. Braybrooke, David (1987). Meeting Needs. Princeton University Press. Brinkmann, Matthias (2018). Indirect Instrumentalism about Political Legitimacy. Moral Philosophy and Politics, 1-28.

275

Briones, Claudia (Comp.) (2005). Cartografías argentinas: políticas indígenas y formaciones provinciales de alteridad. Antropofagia. Buchanan, Allen. (1975). Distributive Justice and Legitimate Expectations. Philosophical Studies, 28(6): 419-425. Buchanan, Allen. (1991). Secession. The Morality of Political Divorce from Fort-Sumter to Lithuania and Quebec, Westview Press. Buchanan, Allen. (2004). Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. Oxford University Press. Burrows, Andrew (2012). A Restatement of the English Law of Unjust Enrichment. Oxford University Press. Burrows, Andrew (2019). “In Defence of Unjust Enrichment”, Cambridge Law Journal, 1-24 Bustos-Videla, Cesar (1964). The 1879 Conquest of the Argentine ‘Desert’ and its Religious Aspects. The Americas, 21(1): 36-57. Butt, Daniel (2009). Rectifying International Injustice: principles of compensation and restitution between nations. Oxford University Press. Butt, Daniel (2013). Inheriting Rights to Reparation: Compensatory Justice and the Passage of Time. Ethical Perspectives, 20(2):245-269. Butt, Daniel (2017). Historical Emissions: Does ignorance matter?. in L. Meyer, and P. Sanklecha, (eds.). Climate Justice and Historical Emission, (pp. 61-79). Cambridge University Press, Canals Frau, Salvador (1946). Expansion of the Araucanians in Argentine. in J. Steward (ed.) Handbook of South American Indians: Vol II. (pp. 95-117). Smithsonian Institution/Bureau of American Ethnology. Caney, Simon (2005). Justice Beyond Borders: A Global Political Theory. Oxford University Press. Caney, Simon (2006). Environmental Degradation, Reparations, and the Moral Significance of History, Journal of Social Philosophy, 37(3):464-482. Caney, Simon (2010). Climate change and the duties of the advantaged, Critical Review of International Social and Political Philosophy, 13(1):203-228. Cañuqueo, Lorena, Kropff, Laura, and Pérez, Pilar (2015). A la sombra de estado: Comunalización indígena en parajes de la pre cordillera de Rio Negro, Argentina, Revista del Museo de Antropología, 8(2):159-170.

276

Cárdenas-Llancaman, Martín (2019). “Azmapu: una propuesta normativa Mapuche”, in C., Carrizo, S., Truccone-Borgogno, M. Lucca Caovilla., H., Cottyn, & F. Díaz, (eds.). Dosier Temático Política Y Derecho Indígena. Administración Pública Y Sociedad (APyS), (8):97-109. Carens, Joseph (2000). Culture, Citizenship and Community: A Contextual Exploration of Justice as Evenhandedness. Oxford University Press. Casal, Paula (2007). Why sufficiency is not enough. Ethics, 117(2):296-326. Casamiquela, Roberto (1985). Características de la Araucanización al oriente de los Andes. Cultura, Hombre y Sociedad, 50/2(1):9-15. Cayuqueo, Pedro (2019). Historia Secreta Mapuche, Catalonia. Chancel, Lucas, and Piketty, Thomas (2015). Carbon and inequality: From Kyoto to Paris. Paris School of Economics. https://doi.org/10.13140/RG.2.1.3536.0082 (Accessed July 6th 2021). Chiaramonte, José C. (2002). Fundamentos Iusnaturalistas de los movimientos de independencia. in M. Teran, and J. Serrano-Ortega (eds.) Las Guerras de la Independencia en la América Española, (pp. 99-122.) Universidad Michoacana de San Nicolas de Hidalgo.

Chiaramonte, José C. (2004). The Principle of Consent in Latin and Anglo-American Independence. Journal of Latin American Studies, 36: 563-586. Cooper, John (1946). The Patagonian And Pampean Hunters. in J. Steward (ed.) Handbook of South American Indians: Vol I. (pp. 127-165). Smithsonian Institution/Bureau of American Ethnology. Coleman, Jules (1982). Corrective Justice and Wrongful Gain. The Journal of Legal Studies, 11(2): 421-440. Coleman, Jules (1983). Moral Theories of Torts: Their Scope and Limits: Part II. Law and Philosophy, I(1): 5-17. Coleman, Jules (1988). The Structure of Tort Law. The Yale Law Journal, 97(6): 1233- 1253. Coleman, Jules (1992a). Tort Law and the Demands of Corrective Justice. Indiana Law Journal, 62(2): 349-379. Coleman, Jules (1992b). Risk and Wrongs. Cambridge University Press. Coleman, Jules (1992c). The Mixed Conception of Corrective Justice. Iowa Law Review, 77: 427-444.

277

Coleman, Jules (1995). The Practice of Corrective Justice. in D. Owen, (ed.) Philosophical foundations of Tort Law (pp. 53-72). Oxford University Press. Copello, Santiago L. (1944). Gestiones del Arzobispo Aneiros, en Favor de los Indios Hasta la Conquista del Desierto, Imprenta y Casa Editora. Copp, David (1998). Equality, Justice and the Basic Needs. in G. Brock (ed.) Necessary Goods: Our Responsibility to Meet Others’ Needs. (pp. 113-134). Rowman & Littlefield. Cortés-Conde, Roberto (1993). The Growth of the Argentine Economy, c.1870-1914. in L. Bethell, (ed.) Argentina since Independence. (pp. 47-77). Cambridge University Press. Cortés-Conde, Roberto (1997). La Economía Argentina en el Largo Plazo: siglos XIX y XX. Sudamericana. Dagan, Hanoch (2004). The Law and Ethics of Restitution. Cambridge University Press. Daniels, Norman (1979). Wide Reflective Equilibrium and Theory Acceptance in Ethics. Journal of Philosophy, 76(5): 256-282. Daniels, Norman (1980). Reflective Equilibrium and Archimedean Points. Canadian Journal of Philosophy, 10(1): 83-103. Daniels, Norman (2016). Reflective Equilibrium. in E. N. Zalta (ed.) The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), https://plato.stanford.edu/archives/sum2020/entries/reflective- equilibrium/.(Accessed June 23rd, 2021). Dannermann, Gerhard (2009). The German Law of Unjustified Enrichment and Restitution: A Comparative Introduction. Oxford University Press. De George, Richard (1980). The environment, rights, and future generations. in E. Partridge (Ed.) Responsibilities to future generations. (pp. 157-165). Prometheus Books. De Jong, Ingrid (2015). El acceso de la tierra entre los indios amigos de la frontera bonaerense (1850-1880). Revista de Ciencias Sociales, 27: 87-117. De la Fuente, Diego (1872). Primer Censo de la República Argentina [año 1869]. Imprenta del Porvenir. De la Fuente, Diego (1898). Segundo Censo de la República Argentina [año 1895]. Taller Tipográfico de la Penitenciaría Nacional Delrio, Walter, Lenton, Diana, Musante, Marcelo Nagy, Mario, Papazian, Alexis and Perez, Pilar (2010). Discussing Indigenous Genocide in Argentina: Past, Present

278

and Consequences of Argentinean state Policies toward native Peoples. Genocide Studies and Prevention: An International Journal, 5(2)3: 138-159. Di Giminiani, Piergiorgio (2015). The becoming of ancestral land: Place and property in Mapuche and claims. American Ethnologist, 42(3): 490-503. Di Tella Guido and Zymelman, Marcelo (1961). “Etapas del Desarrollo Económico Argentino”, Revista de Economía Latinoamericana, 30-51. Dotti, Jorge (1992). La Letra Gótica: Recepción de Kant en la Argentina desde el Romanticismo hasta el treinta. Facultad e Filsofía y Letras de la Universidad de Buenos Aires. Doyal, Len and Gough, Ian (1991). A Theory of Human Need, Macmillan Publishers. Dworkin, Ronald (1975). The Original Position. In N. Daniels (ed.). Reading Rawls: Critical Studies on Rawls’ A Theory of Justice. (pp. 16-52). Basic Books, Inc. Elliot, Robert (1989). The rights of future people. Journal of Applied Philosophy, 6(2):159-169. Estrada, José M. (1901). Curso de Derecho Constitucional, T. I, Compañia Sud- Americana de Billetes de Banco. Feinberg, Joel (1984). Harm to others: the moral limits of criminal law, Vol I. Oxford University Press. Feinberg, Joel (1987). “Wrongful Life and the Counterfactual Element in Harming” in J. Coleman & E. Fankel Paul (eds). Philosophy and Law, (pp. 145-178). Basil Blackwell. Føllesdal, Andreas (1996) “Minority Rights: a Liberal Contractualist case” in Raikka, Juha (ed.) Do we need minority rights? Conceptual issues, Kluwer Law International, Available at SSRN: https://ssrn.com/abstract=1731867 (Accessed May 24th, 2021). Føllesdal, Andreas (2000). Indigenous Minorities and the Shadow of Injustice Past., International Journal of Minority and Group Rights, 7: 19-37. Føllesdal, Andreas (2004). The Special Claims of Indigenous Minorities to Corrective Justice. In L. H. Meyer (ed.) Justice in Time: Responding to Historical Injustice, (pp. 339-253). Nomos Verlagsgesellschaft. Føllesdal, Andreas (2011). The distributive justice of a global basic structure: A category mistake?. Politicas, Philosophy & Economics, 10(I): 46-65. Føllesdal, Andreas (2018) “Federalism”, in E. N. Zalta (ed.). The Stanford Encyclopedia of Philosophy (Summer Edition),

279

https://plato.stanford.edu/archives/sum2018/entries/federalism/ (Accessed February 22nd, 2021). Foot, Philippa (1967). The Problem of Abortion and the Doctrine of the Double Effect. Oxford Review, 5: 1-5. Frankfurt, Harry (1987). Equality as a Moral Ideal. Ethics, 98(1): 21-43. Gallo, Ezequiel (1993). Society and Politics, 1880-1916. in L. Bethell (ed.). Argentina Since Independence. (pp. 79-111) .Cambridge University Press. Gans, Chaim (2008). A just Zionism. On the Morality of the Jewish state. Oxford University Press. García-Gualda, Suyai (2017). Tejedoras de futuro: La participación política de las mujeres Mapuce en el conflicto territorial de Neuquén. Tesis Doctoral, Facultad de Ciencias Políticas y Sociales, Universidad Nacional de Cuyo. García-Gualda, Suyai (2021). Urbanización y municipalización en territorio indígena. Bitácora Territorial, 31(2): 131-142. García-Gualda, Suyai, & Sartino, Julieta (2020). A propósito del informe R.A.M y la demonización del “indio rebelde”: breves notas sobre las continuidades históricas en la Patagonia argentina. Ideología, Estado, Universidad Pensamiento crítico desde el Sur, 181-195. García-Portela, Laura (2021). Rectifying Climate Injustice: A backward-looking approach to Reparations for climate change loss and damage. Doctoral Dissertation, University of Graz. Gardner, John (2011). What is Tort Law For? Part 1. The Place of Corrective Justice”. Law and Philosophy, 30(1): pp. 1-50. Gardner, John (2012). Corrective Justice, Corrected. Diritto e questione pubbliche, 12: 8-37. Gardner, John (2018) From Personal Life to Private Law, Oxford University Press. Gardner, Molly (2015). A Harm-Based Solution to the Non-Identity Problem. Ergo, 2(17): 427-444. Gardner, Molly (2017). On the Strength of the Reason Against Harming. Journal of Moral Philosophy, 1-15. Gargarella, Roberto (2010). The Legal Foundations of Inequality. Constitutionalism in the Americas, 1776-1860. Cambridge University Press. Gargarella, Roberto (2013). Latin American Constitutionalism, 1810-2010. The Engine Room of the Constitution, Oxford University Press.

280

Glick, Thomas (1995). Science and society in twentieth-century Latin America. in L. Bethell, (ed.) The Cambridge History of Latin America, V. 6: 1930 to the Present, Part 1: Economy and Society. (pp. 461-536) .Cambridge University Press. Goodin, Robert (1989). Theories of Compensation. Oxford Journal of Legal Studies, 9(1): 56-75. Goodin, Robert (1991). Compensation and Redistribution. in J. Chapman, (ed.) Compensatory Justice, Nomos. XXIII: 143-177. Goodman, Nelson (1955). Fact, Fiction and Forecast. Harvard University Press. Gosepath, Stefan (2020). Vindication of Distributive Justice. Yearbook for Eastern and Western Philosophy, 7-19. Gosepath, Stefan (2021). “Equality”, in E. N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Summer 2021 Edition), https://plato.stanford.edu/archives/sum2021/entries/equality/. (Accessed April 28th, 2021) Gosseries, Axel (2004). Historical Emissions and Free-riding. in L. Meyer, (ed.) Justice in Time: Responding to Historical Injustice. (pp. 355-382). Nomos Verlagsgesellschaft. Gosseries, Axel (2005). Cosmopolitan Luck Egalitarianism and the Greenhouse Effect. Canadian Journal of Philosophy, 35(1): 279-309. Gosseries, Axel (2008). On future generation’s future rights. Journal of Political Philosophy, 16(4): 446-474. Gough, Ian (2017). Heat, Greed and Human Need. Elgar Publishing. Hale, Charles A. (1986). Political and Social ideas in Latin America, 1870-1930. in L. Bethell (ed). The Cambridge History of Latin America, Vol. IV c. 1870 to 1930, (pp. 367-441). Cambridge University Press. Halperin-Dongui, Tulio (1992). Una nación para el desierto argentino. Centro Editor de América Latina.

Halperin-Dongui, Tulio (2009). Politics Economics and Society in Argentina in the Revolutionary Period. Cambridge University Press. Hamilton, Berenice (1963). Political thought in sixteenth-century Spain: A study of the political ideas of Vitoria, De Soto, Suarez and Molina. Oxford Clarendon Press. Hammond, John (2011). Indigenous Community Justice in the Bolivian Constitution of 2009. Human Rights Quarterly, 33(3): 649-681.

281

Hart, Herbert L. A. (1968). Law, Liberty and Morality. Oxford University Press. Hart, Herbert L. A. (1982). Essays on Bentham, Oxford Clarendon Press. Hasbrouck, Alfred (1935). The Conquest of the Desert. The Hispanic American Historical Review, 15(2): 195-228. Hevia, Martin and Spector Ezequiel (2008). The Bizarre World of Historical Theories of Justice: Revisiting Nozick’s Argument. Social Theory and Practice, 34(4): 533- 549. Heyd, David (1992). Genethics: Moral Issues in the Creation of People. University of California Press. Heyd, David (2017). Climate Ethics, Affirmative Action, and Unjust Enrichment. in L. Meyer, & P. Sanklecha (ed.). Climate Justice and Historical Emission. Cambridge University Press, 1-21. Honoré Tony (1999). Responsibility and Luck.The Moral basis of Strict Liability. In T. Honoré. Fault and Responsibility (pp.14-40), Hart Publishing. Instituto Nacional de Estadísticas y Censos (INDEC) (2012) Censo nacional de población, hogares y viviendas 2010: censo del Bicentenario: resultados definitivos, Serie B nª 2. Instituto Nacional de Estadísticas y Censos (INDEC) (2021) Informes Técnicos Vol. 5, n° 59; Condiciones de Vida. Vol. 5, n°4, Incidencia de la pobreza y la indigencia en 31 aglomerados urbanos, segundo semestre de 2020. International Panel on Climate Change (IPCC) (2014). Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing Team, R.K. Pachauri and L.A. Meyer (eds.)]. IPCC, Geneva, Switzerland, 151 pp. International Panel on Climate Change (IPCC) (2018). Summary for Policymakers. In Global warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [V. Masson-Delmotte, P. Zhai, H. O. Pörtner, D. Roberts, J. Skea, P. R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J. B. R. Matthews, Y. Chen, X. Zhou, M. I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, T. Waterfield (eds.)]. World Meteorological Organization, Geneva, Switzerland, 32 pp.

282

Ivison, Duncan (2000). Political Community and Historical Injustice.Australasian Journal of Philosophy, 78(3): 360-373. Ivison, Duncan (2006). Historical injustice. In J. Dryzek, B. Honig, & A. Phillips (Eds.), The Oxford handbook of political theory (pp. 507-525). Oxford University Press. Jacobson, Mark; Delucchi, Mark; Bauer, Zack; Goodman, Savannah; Chapman, William; Cameron, Mary; Bozonnat, Cedric; Chobadi, Liat; Clonts, Hailey; Enevoldsen, Peter; Erwin, Jenny; Fobi, Simone; Goldstrom, Owen; Hennessy, Eleanor; Liu, Jingyi; Lo, Jonathan; Meyer, Clayton; Morris, Sean; Moy, Kevin; O’Neil, Patrick; Petkov, Ivalin; Redfern, Stephanie; Schucker, Robin; Sontag, Michael; Wang, Jingfan; Weiner, Eric; Yachanin, Alexander (2017). “100% Clean and renewable wind, water, and sunlight all-sector energy roadmaps for 139 countries of the world” Joule, 1(1): 108-121. Jamieson, Daniel (1993). Method and Moral Theory. in P. Singer (ed.) A Companion to Ethics. (pp. 476-487). Blackwell Publishing. Johnston, David and Zimmermann, Reinhard (2004). Unjustified enrichment: surveying the landscape. in D. Johnston, and R. Zimmermann, (eds.) Unjustified Enrichment: Key Issues in Comparative Perspective. (pp. 3-33). Cambridge University Press. Kant, Immanuel (1991). DR: The Doctrine of Right, in The Metaphysics of Morals, (Introduction, translation, and notes by Mary Gregor), Cambridge University Press. Kavka, Gregory (1982). The Paradox of Future Individuals. Philosophy & Public Affairs 11(2): 93-112. Klimchuk, Dennis (2005). “Mack v. Attorney General of Canada and the Structure of the Action in Unjust Enrichment” in D. Dyzenhaus and M. Moran (eds.) Calling Power to Account: Law, Reparations and the Chinese Canadian Head Tax Case. (pp. 307-340). University of Toronto Press. Klimchuk, Dennis (2009). The Normative Foundations of Unjust Enrichment. in R. Chambers, C. Mitchell and J. Penner (eds.) The Philosophical Foundations of the Law of Unjust Enrichment. (pp. 82-100). Oxford University Press. Knight, Carl (2013). What is grandfathering?. Environmental Politics, 22(3): 410-427. Kolers Avery (2012). Floating Provisos and Sinking Islands. Journal of Applied Philosophy, 29(4): 333-343. Kolstad, Charles, Urama, Kevin, Broome, John, Bruvoll, Annagrette, Cariño- Olvera, Michelline, Fullerton, Don, Gollier, Christian, Hanemann, William,

283

Hassan, Rashid, Jotzo, Frank, Khan, Mizan, Meyer, Lukas, and Mundaca, Luis. (2014). “Social, Economic and Ethical Concepts and Methods” in Edenhofer, O. Pichs-Madruga, R. Sokona, Y. Farahani, E. Kadner, S. Seyboth, K. Adler, A. Baum, I. & Minx, J. C. (Eds.), Climate Change 2014: Mitigation of Climate Change, (pp. 173-248). Cambridge University Press. Kosovsky, Fernando and Ivanoff, Sonia (Comp.) (2015). Propiedad Comunitaria Indígena. Editorial Universitaria de la Patagonia. Kradofer-Morales, Sabine (2008). Ser mapuche en Argentina en el umbral del tercer milenio. Revista del CESLA, 10: 37-51. Krebs, Thomas (2004). In defence of unjust factors. in D. Johnston, and R. Zimmermann, (eds.) Unjustified Enrichment: Key Issues in Comparative Perspective. (pp. 76-100). Cambridge University Press. Kropff, Laura (2005). Activismo Mapuche en Argentina: Trayectoria Histórica y Nuevas Propuestas. in P. Davalos (ed.). Pueblos Indígenas, Estado y Democracia. (pp. 103-132). Consejo Latinoamericano de Ciencias Sociales. Kropff, Laura (2011). Debates sobre lo político entre jóvenes mapuche en Argentina. Revista Latinoamericana de Ciencias Sociales, Niñez y juventud, 1(9): 83-99. Kropff, Laura (2016). Entre Genealogías Familiares y Genealogías Políticas: Jóvenes en un proceso de Comunalización Mapuche en Argentina. MANA, 22(2): 341-368. Kukathas, Chandran (2006). Who? Whom? Reparations and the Problem of Agency. Journal of Social Philosophy, 37(3): 330-341. Kymlicka, Will (1995). Multicultural Citizenship: a Liberal Theory of Minority Rights, Oxford Clarendon Press. Lenton, Diana (2005). De centauros a protegidos: la construcción de la política indigenista argentina desde los debates parlamentarios (1880-1970), PhD Thesis, University of Buenos Aires, http://repositorio.filo.uba.ar/handle/filodigital/1268 (Accessed November 4th, 2020) Lenton, Diana (2010). Política Indigenista Argentina: una Construcción Inconclusa. Anuario Antropologico, 35(1): 57-97. Levaggi, Abelardo (1990). La protección de los naturales por el Estado argentino (1810- 1950): el problema de la capacidad. Revista Chilena de Historia del Derecho, 445- 469.

284

Levaggi, Abelardo (1995a). Tratados entre la corona y los indios de la frontera sur de Buenos Aires, Córdoba y Cuyo. Memorias del X Congreso del Instituto Internacional de Historia del Derecho Indiano, 695-764. Levaggi, Abelardo (1995b). Tratados celebrados entre gobiernos argentinos e indios del sur de Buenos Aires, Santa Fe, Córdoba y Cuyo (1810-1852). Revista de Historia del Derecho “Ricardo Levene”, 30: 87-165. Levaggi, Abelardo (1996). Las dos políticas indigenistas de Avellaneda y su época: Antropología cristiana y evolucionismo darwinista. Signos Universitarios, 15(30): 237-252. Llamosas, Esteban (2018). Las ideas jurídicas en la enseñanza de la Universidad de Córdoba. in Introdución a los Estudios de la Carrera de Abogacía, TI. (pp. 89-105). Ciencia, Derecho y Sociedad-UNC. Locke, John (1970[1689]). Two Treatises of Government. Cambridge University Press. Lu, Catherine (2017). Justice and Reconciliation in World Politics. Cambridge University Press. Luna, Félix (1984). Historia Gráfica de la Argentina Contemporánea: Construyendo una nación (1880-1890), TI. Hyspamerica. Luna, Félix (1990). Historia Gráfica de la Argentina Contemporánea: La Decada del Milagro (1880-1890) TII. Hyspamerica. Luna, Félix (2005). Breve Historia de los Argentinos. Booket. Lynch, John (1993). From independence to national organization. in L. Bethell (ed.). Argentina Since Independence. (pp. 1-46). Cambridge University Press. Lyons, David (1981). The New Indian Claims and Original Rights to Land. in J. Paul (ed.) Reading Nozick: Essays on Anarchy, state and Utopia. (pp. 355-79). Rowman & Littlefield. McMahan, Jeff (2013). Moral Intuition. in H. LaFollette & I. Persson (ed.) The Blackwell Guide to Ethical Theory, Second Edition, (pp. 103-120). Blackwell Publishing. Magrabaña, Heraclio (1910). Los Mensajes. Historia del desenvolvimiento de la nación argentina redactada cronológicamente por sus gobernantes 1810-1919. T.III: 1852- 1880. Talleres Gráficos de la Compañía Gral. de Fósforos. Mandrini, Raul and Ortelli, Sara (1995). Repensando viejos problemas: Observaciones sobre la Araucanización de las Pampas. RUNA, 22: 135-150. Mandrini, Raul and Ortelli, Sara (2002). Los ‘Araucanos’ en las Pampas (c. 1700- 1850). in G. Boccara (ed). Colonización, resistencia y mestizaje en las Américas

285

(siglos XVI-XX), (pp. 237-257). Ediciones Abya Yala/Instituto Frances de Estudios Andinos. Margalit, Avishai and Raz, Joseph (1990). National Self-Determination. The Journal of Philosophy, 87(9): 439-461. Marimán-Quemado, Pablo (2006). Los Mapuche antes de la conquista Militar Chileno- Argentina. in P. Marimán, S. Caniuqueo, J. Millalén, R. Levil, (eds.) ¡… Escucha, Winka…! Cuatro ensayos de Historica Nacional Mapuche y un epílogo sobre el futuro. (pp. 53-127). Lom ed. Marimán-Quemado, Pablo, Caniuqueo, Sergio, Millalén-Paillal, José, and Levil, Rodrigo (2006). ¡… Escucha, Winka…! Cuatro ensayos de Historica Nacional Mapuche y un epílogo sobre el futuro. Lom ed. [Epilogue available in English in https://hemi.nyu.edu/hemi/en/emisferica-111-decolonial-gesture/carcamo ] Marmor, Andrei (2004) “Entitlement to Land and the Right to Return. An Embarrassing Challenge for Liberal Zionism”, in L.H. Meyer (ed.), Justice in Time. Responding to Historical Injustice. (pp. 319–33). Nomos Verlagsgesellschaft. Martinez-Sarasola, Carlos (1998). Los hijos de la tierra: historia de los indígenas argentinos. Emecé. McInnes Mitchell (2012). The Reason to Reverse: Unjust Factors and Juristic Reasons. Boston University Law Review, 92: 1049-1065. Meisels, Tamar (2003). Can Corrective Justice Ground Claims to Territory?. Journal of Political Philosophy, 11: 65–88. Meisels, Tamar (2009). Territorial Rights. Springer. Meyer, Lukas H. (1997a). More than they have a right to: future people and our future- oriented projects. in N., Fotion & J. Heller, (eds.) Contingent Future Persons, (pp. 137-156) Kluger Academic Publishers. Meyer, Lukas H. (1997b). Can Actual Future People Have a Right to Non -Existence?. Archives for Philosophy of Law and Social philosophy, 67: 200-209. Meyer, Lukas H. (2001). Transnational Autonomy: Responding to Historical Injustice in the Case of the Roma Peoples. International Journal on Minority and Group Rights, 8(2)3: 263-301. Meyer, Lukas H. (2003). Past and Future: The Case for a Threshold Notion of Harm” in L. Meyer, S. Paulson, and T. Pogge (ed.). Rights, Culture, and the Law: Themes from the Legal and Political Philosophy of Joseph Raz. (pp. 143-159). Oxford University Press.

286

Meyer, Lukas H. (2004a). Surviving Duties and Symbolic Compensation. in L. Meyer, (ed.). Justice in Time: Responding to Historical Injustice, Nomos Verlagsgesellschaft, 173-183. Meyer, Lukas H. (2004b). Compensating Wrongless Historical Emissions of Greenhouse Gases. Ethical perspectives, 11(1): 20-35. Meyer, Lukas H. (2004c). Historical Injustice and the Right of Return. Theoretical Inquiries in Law, 5(2): 305-315. Meyer, Lukas H. (2006). Reparations and symbolic Restitution. Journal of social philosophy, 37(3): 406–422. Meyer, Lukas H. (2013). Why Historical Emissions Should Count. Chicago Journal of International Law, 13(2): 597-614. Meyer, Lukas H. (2018). Responding to Colonial Injustice -Refletion on the Legitimacy of the Return of the ‘Padrão’. Kunst un Recht, Journal fûr Kunstrecht, Urheberrecht und Kulturpolitik, 119-126. Meyer, Lukas H. (2021a). "Intergenerational Justice", in E. N. Zalta, The Stanford Encyclopaedia of Philosophy (Summer 2021 Edition), https://plato.stanford.edu/archives/sum2021/entries/justice-intergenerational/ (Accessed May 8th, 2021). Meyer, Lukas H. (2021b). Climate Justice, Inherited Benefits, and Status quo- Expectations. in S. Kenehan, and C. Katz (eds). Climate Justice and Feasibility, Rowan & Littlefield (forthcoming). Meyer, Lukas H. and Polzler, Thomas. Basic Needs and Sufficiency: The Foundations o Intergenerational Justice. In S. M. Gardiner (ed.) The Oxford Handbook of Intergenerational Ethics. (forthcoming). Meyer, Lukas H. and Roser, Dominik (2006). Distributive Justice and Climate Change. The Allocation of Emission Rights.Analyse & Kritik, 28: 223-249. Meyer, Lukas H. and Roser, Dominik (2009). Enough for the Future. A. Gosseries, & L. Meyer (eds). Intergenerational Justice. (pp. 219-248). Oxford University Press. Meyer, Lukas H. and Roser, Dominik (2010). Climate justice and historical emissions. Critical Review of International Social and Political Philosophy, 13(1): 229-253. Meyer, Lukas H., and Sanklecha, Pranay (2011). Individual Expectations and Climate Change. Analyse & Kritik: Zeitschrift fuer Sozialtheorie, 32(2): 449-71. Meyer, Lukas H., and Sanklecha, Pranay (2014). How Legitimate Expectations Matter in Climate Justice. Politics, Philosophy & Economics, 13(4): 369-93.

287

Meyer, Lukas H., and Sanklecha, Pranay (2017). Introduction: On the significance of historical emissions for climate ethics. in Meyer, L. and Sanklecha, P. (eds.). Climate Justice and Historical Emission. ( pp. 1-21). Cambridge University Press. Meyer, Lukas H. and Stelzler Harald (2018). Risk-averse sufficientarianism the imposition of risks of rights-violations in the context of climate change. Ethical Perspectives, 25(3): 447-470. Meyer, Lukas H. and Waligore, Timothy (2016). Superseding Historical Injustice and Changed Circumstances. FWF Project Proposal. Millalén-Paillal, José (2006). La sociedad Mapuche prehispánica: Kimûn, Arquelogía y Etnohistoria. in P. Marimán-Quemado, S. Caniuqueo, J. Millalén, R. Levil (eds.) ¡… Escucha, Winka…! Cuatro ensayos de Historica Nacional Mapuche y un epílogo sobre el futuro”. (pp. 17-127). Lom ed. Miller, David (2001). Distributing Responsibilities. The Journal of Political Philosophy, 9(4): 453-471. Miller, David (2007). National Responsibility and Global Justice. Oxford University Press. Miller, David (2017). Justice. in E. N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Fall 2017 Edition), https://plato.stanford.edu/archives/fall2017/entries/justice/ (Accessed June 15th, 2021) Moore, Margaret (2020). Territorial Rights and Territorial Justice. in E. N. Zalta (ed.) The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), https://plato.stanford.edu/archives/sum2020/entries/territorial-rights/. (Accessed October 27th, 2020). Moroni, Marisa (2007). La nacionalización de la frontera pampeana y la formación del Estado Argentino. Secuencia, 69-89. Nagel, Thomas (2005). The Problem of Global Justice. Philosophy & Public Affairs, 33(2): 113-147. Nagy, Mariano (2012). Tradiciones situadas, usos del pasado y devenir indígena. Vols 1 y 2. PhD Thesis in History, University of Buenos Aires, URI: http://repositorio.filo.uba.ar/handle/filodigital/2822 (Accessed June 18th, 2020). Nagy, Mariano (2014a). Los Catriel, de amigos a apresados. ¿El fin o la continuidad de una estrategia?. Runa, 35(1): 93-112.

288

Nagy, Mariano (2014b). Después del fin. Sometimiento, proletarización y rearticulación comunitaria indígena en Buenos Aires. in J. Lanata (Comp.). Prácticas Genocidas y Violencia Estatal en Perspectiva Transdisciplinar (pp. 96-133). IIDyPCa-CONICET- UNRN. Navarro-Floria, Pedro (2001). El salvaje y su tratamiento en el discurso político argentino sobre la frontera sur, 1853-1879. Revista de Indias, LXI: 345-376. Navarro-Floria, Pedro (2002). El desierto y la cuestión del territorio en el discurso político argentino sobre la frontera Sur. Revista Complutense de Historia de América, 28: 139-168. Nine, Cara (2008) Superseding historic injustice and territorial rights,. Critical Review of International Social and Political Philosophy, 11(1): 79-87. Nine, Cara (2010). Ecological Refugees, states Borders, and the Lockean Proviso. Journal of Applied Philosophy, 27(4): 359–375. Nino, Carlos S. (1980). Los Límites a la Responsabilidad Penal: una teoría liberal del delito, Astrea. Nino, Carlos S. (1991). The Ethics of Human Rights. Oxford Clarendon Press. Nino, Carlos S. (1992). Fundamentos de Derecho Constitucional. Astrea. Nino, Carlos S. (1996). Radical Evil on Trial. Yale University Press. Nino, Carlos S. (2003). Introducción al Análisis del Derecho, Astrea. Nozick, Robert (1974). Anarchy state and Utopia. Blackwell Basic Books. O’Donnell, Mario (2014). Breve historia argentina. De la Conquista a los Kirchner. Penguin Random House. O’Donnell, Mario (2016). “El debate sobre Roca” recovered from http://pachoodonnell.com.ar/articulos/item/441-el-debate-sobre-roca (Accessed, May 8th 2020). O’Neill, Onora (1986). The Power of Example. Philosophy. 61: 5-29. Ortelli, Sara (1996). La ‘Araucanización’ de las Pampas: ¿Realidad Histórica o Construcción de los Etnólogos. Anuario del IEHS, 11: 203-225. Osorio, Leticia and Tedeschi Sebastián (2006). Desalojos en América Latina:los casos de Argentina, Brasil, Colombia y Perú. Centro por el Derecho a la Vivienda y contra los Desalojos (COHRE). Padgen, Anthony (2003). The Christian Tradition. in A. Buchanan, and M. Moore (eds.) states, Nations and Borders. The Ethics of Making Boundaries. (pp. 103-126). Cambridge University Press.

289

Page, Edward (2012). Give it up for climate change: a defence of the beneficiary pays principle. International Theory, 4(2): 300–330. Papazián, Alexis, Musante, Marcelo and Perez, Pilar (2014). Los campos de concentración indígena como espacios de excepcionalidad en la matriz estado-nación- territorio argentino. in L. Lanata (Comp.). Practicas Genocidas y Violencia Estatal en Perspectiva Transdisciplinar, (pp. 66-95). IIDyPCa-CONICET. Parfit, Derek (1976a). On Doing the Best for Our Children. in M. Bayles (ed.) Ethics and Population. (100-115). Cambridge: Shenkman. Parfit, Derek (1976b). Rights, interests, and possible people. in S. Gorovitz, A. Jameton, R. Macklin, J. O’Connor, E. Perrin, B. Page St. Clair & S. Sherwin (eds.). Moral problems in medicine, (pp. 369–375). Englewood Cliffs.

Parfit, Derek (1982). Future generations: further problems. Philosophy & Public Affairs, 11(2): 113–172. Parfit, Derek (1983). Energy policy and the further future: the identity problem. in D. MacLean & P. Brown (eds.). Energy and the future, (pp. 166–179). Rowman and Littlefield. Parfit, Derek (1984). Reasons and Persons. Oxford Clarendon Press. Parfit, Derek (1986a). Comments. Ethics 96(4): 832–872. Parfit, Derek (1986b). Overpopulation and the quality of life. in P. Singer (ed.). Applied Ethics (pp. 145–164). Oxford University Press. Parfit, Derek (1997). Equality and Priority. Ratio, 18(3): 202-221. Parfit, Derek (2004). Postscript. in J. Ryberg, & T. Tännsjö (eds.). The Repugnant Conclusion : Essays on Population Ethics, Dordrecht: Kluwer, 257. Parfit, Derek (2011a). On What Matters, Vol I. Oxford University Press. Parfit, Derek (2011b). On What Matters, Vol II. Oxford University Press. Parfit, Derek (2016). Can We Avoid the Repugnant Conclusion?. Theoria, 82: 110-127. Parfit, Derek (2017a). On What Matters, Vol III. Oxford University Press. Parfit, Derek (2017b). Future People, the Non-identity Problem, and Person-Affecting principles. Philosophy & Public Affairs ,45(2): 118-157. Partridge, Ernst (1990). On the Rights of Future Generations. in D. Scherer. (ed.) Upstream/Downstream: Issues in Environmental Ethics. (pp. 40-66). Temple University Press.

290

Patton, Paul (2005). Historic Injustice and the Possibility of Supersession. Journal of Intercultural Studies, 26: 255–66. Pérez, Alberto (2008). Tras la conquista de las quince mil almas. Estudio Preliminar de E. Zeballos, La Conquista de Quince Mil Leguas, Continente. Perry, Stephen (1992). Comments on Coleman: Corrective Justice. Indiana Law Journal, 67(2): 381-409. Piciñam, María; Piciñam, Pety; Caiñikul, Maiten; Maripil, Fernando; Kvlalew, Silvia; Hernández, Damián; Figueroa, Cecilia, Ñänku, Relmu; Díaz, Raúl, Vacanarvaja, Tania, Tiscomia, Luis, Villareal, Jorgelina, Rodriguez de Anca, Alehandra; Huilipan Verónica, (2010). Propuesta para un KVME FELEN MAPUCE. Gráfica Althabe. Pigna, Felipe (2005). Los Mitos de la Historia Argentina II: de San Martín al “Granero del Mundo”. Planeta. Pizarro, Daniel and Vallespinos, Gustavo (2017). Tratado de Obligaciones, Tomo IV. Rubinzal Culzoni. Pogge, Thomas (2004). Historical Wrongs. The Two Other Domains. in L. Meyer (ed.). Justice in time: Responding to Historical Injustice. (pp. 117-134). Nomos Verlagsgesellschaft. Quijada, Mónica (1999). La Ciudadanización del ‘Indio Bárbaro’. Políticas Oficiales y Oficiosas Hacia la Población Indígena de la Pampa y la Patagonia, 1870-1920. Revista de Indias. LIX(217): 675-704. Quijada, Mónica (2002). Repensando la Frontera Sur Argentina: Concepto, Contenido, Continuidades y Discontinuidades de una Realidad Especial y Étnica (Siglos XVIII- XIX), Revista de Indias, LXII(24):103-142. Quijada, Mónica (2006). De Mitos Nacionales, Definiciones Cívicas y Clasificaciones Grupales. Los Indígenas en la Construcción Nacional Argentina de los Siglos XIX a XXI. in, W. Ansaldi, (ed.). Calidoscopio Latinoamericano. Imágenes Históricas Para un Debate Vigente. (pp. 426-450). Ariel. Radovich, Juan (2003). Impacto Social de Grandes Aprovechamientos Hidroenergeticos sobre Comunidades Rurales de Norpatagonia, PhD Thesis in Antropology, University of Buenos Aires, http://repositorio.filo.uba.ar/handle/filodigital/1335 (Accessed July 5th, 2020). Radovich, Juan (2017). Fractura Hidráulica y Conflicto Territorial en la Comunidad Mapuche Campo Maripe, Neuquén, Argentina. Revista GeoPantanal, 12(22): 89-104.

291

Ramos, Anna and Delrio, Walter (2005). Trayectoria de oposición. Los mapuches y tehuelches frente a la hegemonía de Chubut. in C. Briones (Comp.) Cartografías argentinas: políticas indígenas y formaciones provinciales de alteridad. (pp. 73-107). Antropofagia. Ramirez, Silvina (2017). Diversidad en los modos de gestionar la conflictividad: profundizando el derecho al acceso a la justicia. Revista sobre acceso à justica e direitos nas Américas ABYA YALA, (2): 107-121. Rao, Narasimha, Riahi, Keyman and Grubler, Arnulf (2014). Cimate impacts of poverty eradication. Nature Climate Change, 749-751. Rawls, John (1951). Outline of a Decision Procedure for Ethics. The Philosophical Review, 60(2): 177-197. Rawls, John (1993). Political Liberalism. Columbia University Press. Rawls, John (1999). A Theory of Justice. Revised edition. Harvard University Press. Rawls, John (2007). Lectures on the History of Political Philosophy. Cambridge University Press. Raz, Joseph (1982). The claims of reflective equilibrium. Inquiry, 25(3): 307-330. Raz, Joseph (1986). The Morality of Freedom. Oxford University Press. Risse, Mathias (2008). Who Should Shoulder the Burden? Global Climate Change and Common Ownership of the Earth. HKS Faculty Research Working Paper Series, RWP=(-075 Rock, David (1986). Argentina 1516-1982. From Spanish Colonization to the Falklands War. I.B Taurus & Cº Ltd. Rock, David (1993a). Argentina in 1914: The Pampas, The Interior, Buenos Aires. in L. Bethell, (ed.). Argentina Since Independence. (pp. 113-138). Cambridge University Press. Rock, David (1993b). Argentina, 1930-1946. in L. Bethell (ed.). Argentina Since Independence. Cambridge University Press, 173-242. Rock, David (2019). The British in Argentina: Commerce, Settlers & Power 1800-2000. Palgrave, Macmillan. Rockstrom, Johan, Gaffney, Owen, Rogelij, Joeri, Meinschausen, Malte, Nakicedenovic, Nakicenovic, and Schellnhuber, Hans (2017). A roadmap for rapid decarbonization. Science, 355(6331):1269-1271. Ruiz-Moreno, Isidoro (2009). Campañas militares argentinas. T5. La política y la guerra. Luchas contra indios y sediciosos (1870-1884), Claridad.

292

Sayre-McCord, Geoffrey (1996). Coherentist Epistemology and Moral Theory in W. Sinnott-Armstrong, and M. Timmons (eds.). Moral Knowledge?. (pp. 137-189). Oxford University Press. Sábato, Hilda (2016). Historia de la Argentina. 1852-1890. Siglo veintiuno editores. Sabina, Luciana (2014). Héroes y villanos: la batalla final por la historia argentina, Sudamericana. Salgado, Juan M. (2010). Tomando en Serio los Derechos de los Pueblos Indígenas. in R. Gargarella, (Coord.) La Constitución 2020: 48 propuestas para una sociedad igualitaria. (pp.150-155). Siglo 21 editores. Sanderson, Douglas (2011). Against Supersession. Canadian Journal of Law and Jurisprudence, 24(1): 155-182. Sanz-Villarroya, Isabel (2007). La Belle Epoque de la Economía Argentina. 1875-1913. Acciones e Investigaciones Sociales, 23: 115-138. Sarmiento, Domingo F. (1885). Investigaciones sobre el sistema colonial de los españoles. in Obras de D. F. Sarmiento, T.II: Artículos Críticos I Literarios 1842- 1853. (pp. 211-218). Felix Lajounae Editor. Sarmiento, Domingo F. (1896a). Obras de D. F. Sarmiento, T. VII: Facundo o Civilización y Barbarie en las Pampas Buenos Aires. Imprenta y Litografía Mariano Moreno. Sarmiento, Domingo F. (1896b). Obras de D. F. Sarmiento, T XII: Educación Común. Imprenta y Litografía Mariano Moreno. Sarmiento, Domingo F. (1899). Darwin. in Obras de D. F. Sarmiento, T. XXII: Discursos Populares. (pp. 104-133). Imprenta y Litografía Mariano Moreno. Sarmiento, Domingo F. (1900a). Obras de D. F. Sarmiento, T: XXXVII: Conflicto y armonías de las razas en América. Imprenta y Litografía Mariano Moreno. Sarmiento, Domingo F. (1900b). La Expedición al Rio Negro. in Obras de D. F. Sarmiento, T: XLI: Progresos Generales. Vistas Económicas. (pp. 328-331). Imprenta y Litografía Mariano Moreno. Schwartz, Thomas (1978). Obligations to Posterity. in R. Sikora & B. Barry (ed.). Obligations to Future Generations. (pp. 3-13). Temple University Press. Seleme, Hugo (2011). The Moral Irrelevance of Global and International Inequality. The Journal of Jurisprudence. 271-326. Sher, George (2004). Ancient Wrongs and Modern Rights. In L. Meyer (ed). Justice in Time: Responding to Historical Injustice, (pp. 135-144) Nomos Verlagsgesellschaft.

293

Sher, George (2005). Transgenerational Compensation. Philosophy & Public Affairs, 33(2): 181-200. Shields, Liam (2016). Just Enough: Sufficiency as a demand of Justice. Edinburgh University Press. Shue, Henry (1993). Subsistence Emissions and Luxury Emissions. Law & Policy, 15(1): 39-59. Simmons, John (2005). Historical Rights and air Shares. Law and Philosohy, 14(2): 149- 184. Simmons, John (2016). Boundaries of Authority. Oxford University Press. Singer, Peter (2008). One Atmosphere. in T. Brooks (ed.). Global Justice Reader, (pp. 667-688). Blackwell Publishing. Smith, Lionel (2005). The Timing of Injustice. in D. Dyzenhaus and M. Moran (eds). Calling Power to Account: Law, Reparations and the Chinese Canadian Head Tax Case. (pp. 287-306). University of Toronto Press. Smith, Stephen (2009). Unjust Enrichment: Nearer to Tort than Contract. in R. Chambers, M. Charles and J. Penner (eds.) Philosophical Foundations of the Law of Unjust Enrichment. (pp. 182-210). Oxford University Press. Spinner-Halev, Jeff (2012). Enduring Injustice. Cambridge University Press. Steiner, Hillel (1983). The rights of future generations. D. MacLean and P. Brown, (eds.). Energy and the Future. (pp. 151-165). Rowman and Littlefield. Steininger, Karl, Meyer, Lukas, Nabernegg, Stefan and Kirchengast, Gottfried (2020). Sectorial carbon budgets as an evaluation framework for the built environment. Buildings and Cities, 1(1): 337-360. Sterpin Laura (2018). La participación indígena en la reforma del Código Civil: agencias, discursos y practicas en tension. in M. Carrasco (ed.). Campos de interlocución y políticas de reconocimiento indígena en Argentina (pp. 87-103). Antropofagia. Stilz, Anna (2009). Liberal Loyalty: Freedom, Obligation and the state. Princeton University Press. Stilz, Anna (2015). Decolonization and Self-determination. Social Philosophy & Policy Foundation, 1-24. Stilz, Anna (2016). The Value of Self-determination. in D. Sobel, P. Vallentyne, & S. Wall (ed.). Oxford Studies in Political Philosophy: Volume-II. (pp. 98-127). Oxford University Press.

294

Stilz, Anna (2019). Territorial Sovereignty: A philosophical exploration Oxford University Press. Svampa, Maristella (2016). Debates Latinoamericanos: Indianismo, Desarrollo, Dependencia, Populismo. Edhasa. Tadros, Victor (2014). What Might Have Been. in J. Oberdiek, (ed.). Philosophical Foundations of the Law of Torts. (pp. 171-192). Oxford University Press. Tau-Anzoátegui, Victor (1977). Las ideas jurídicas en la Argentina (Siglos XIX-XX). Perrot. Taylor, Alan (1992). External Dependence, Demographic Burdens, and Argentine Economic Decline After the Belle Époque. The Journal of Economic History, 52(4): 907-936. Thompson, Janna (2002). Taking Responsibility for the Past: Reparation and Historical Injustice. Polity Press. Thompson, Janna (2017). Historical Responsibility and Climate Change. in L. Meyer, & P. Sanklecha (ed.). Climate Justice and Historical Emissions. (pp. 46- 60) Cambridge University Press. Torre, Juan C. and De Riz, Lililiana (1993). Argentina since 1946 in L. Bethell (ed.). Argentina Since Independence. (pp. 243-363). Cambridge University Press. Trentini, Florencia, Valverde, Sebastián, Radovich, Juan, Beron, Mónica and Balazote Alejandro (2010). Los nostálgicos del desierto: la cuestión Mapuche en Argentina y el estigma en los medios. Cultura y representaciones sociales, 186-212. Toledo-Llancaqueo, Victor (2006). Pueblo Mapuche, derechos colectivos y territorio: desafíos para la sustentabilidad democrática. LOM ediciones. Truccone-Borgogno, Santiago (2017). Un concepto de daño y sus consecuencias para la parte general del derecho penal. Política Criminal, 12(24)/14: 1184-1210. Truccone-Borgogno, Santiago (2019). Postericidio como crimen intergeneracional. En Letra: Derecho Penal, 5(8): 55-77. Truccone-Borgogno, Santiago (2021). La Conquista del Desierto, Confianza y el Principio de Proximidad. Análisis Filosófico, 41 (1): 7-36. Truccone-Borgogno, Santiago (forthcoming) “Climate Change, the Rights of Future People and the Supersession Thesis”, Critical Review of International Social and Political Philosophy Valverde, Sebastian (2015). El estigma de la difusión y la difusión del estigma. La escuela histórico-cultural y los prejuicios hacia los pueblos indígenas de

295

Norpatagonia, Argentina. Relaciones de la Sociedad Argentina de Antropología, 327- 349. Vernon, Robert (2003). Against Restitution. Political Studies, 51: 342-557. Virgo, Grahan (2015). The Principles of the Law of Restitution. Oxford University Press. Visser, Daniel (2004). Searches for silver bullets: enrichment in three-party situations. in D. Johnston and R. Zimmermann, (eds.). Unjustified Enrichment: Key Issues in Comparative Perspective. (pp. 536-567). Cambridge University Press. Vitoria, Francisco de (1991). Political Writings, edited by A. Padgen and J. Lawrance. Cambridge University Press. Yamei, David (2021). Rich countries should tithe their vaccines, Nature, 590, 529. Waldron, Jeremy (1988). The Right to Private Property. Oxford Clarendon Press. Waldron, Jeremy (1992a). Historic Injustice: Its Remembrance and Supersession. in G. Oddie and R. Perrett (ed.) Justice, Ethics, and New Zealand Society. (pp. 139-170). Oxford University Press. Waldron, Jeremy (1992b). Superseding Historic Injustice. Ethics, 103(1): 4-28. Waldron, Jeremy (1993). Special Ties and Natural Duties. Philosophy and Public Affairs, 22(1): 3-30. Waldron, Jeremy (1996). Kant’s Legal Positivism. Harvard Law Review, 109(7): 1535- 1566. Waldron, Jeremy (1999). The Dignity of Legislation. Cambridge University Press. Waldron, Jeremy (2003). Indigeneity? First Peoples and Last Occupancy. New Zealand Journal of Public and International Law, 1(1): 55-82. Waldron, Jeremy (2004a). Settlement, Return, and the Supersession Thesis”. Theoretical Inquiries in Law, 5(2): 237-268. Waldron, Jeremy (2004b). Redressing Historic Injustice. in L. Meyer, (ed.). Justice in Time: Responding to Historical Injustice. (pp. 55-77) Nomos Verlagsgesellschaft. Waldron, Jeremy (2006a). Supersession and Sovereignty. New York University Public Law and Legal Theory Working Papers. Paper 406. http://lsr.nellco.org/nyu_plltwp/406 (Accessed January 18th, 2021). Waldron, Jeremy (2006b). Kant’s Theory of the state. in P. Kleingeld (ed.) Toward Perpetual Peace and Other Writings on Politics, Peace, and History / Immanuel Kant. (pp. 179-200). Yale University Press. Waldron, Jeremy (2009). Proximity as the Basis of Political Community. Working- paper presented at Workshop on Theories of Territory. KCL, Feb 21: 1-27.

296

https://seis.bristol.ac.uk/~plcdib/territory/papers/Waldron-Proximity.pdf (Accessed June 26th, 2021). Waldron, Jeremy (2010). Two Conceptions of Self-determination. in S. Besson & J. Tasioulas (eds.). The Philosophy of International Law. (pp. 397-413). Oxford University Press. Waldron, Jeremy (2011). The Principle of Proximity. Public Law & Legal Theory Research Paper Series, Working Paper 11-08, http://ssrn.com/abstract=1742413 (Accessed April 13th, 2020). Waldron, Jeremy (2017). One Another’s Equals The Basis of Human Equality. Harvard University Press. Waldron, Jeremy (2018). Boundaries of authority. Philosophical Review, 127(4): 545- 550. Waldron, Jeremy (2020). Property and Ownership. in E. N. Zalta (ed.) The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), https://plato.stanford.edu/archives/sum2020/entries/property/(Accessed February 19th, 2021). Waligore, Timothy (2009). Cosmopolitan Right, Indigenous Peoples, and the Risk of Cultural Interaction. Public Reason 1(1): 27-56. Waligore, Timothy (2016). Rawls, Self-Respect, and Assurance. How Past Injustice Changes What Counts as Justice. Politics, Philosophy & Economics, 15: 42–66. Waligore, Timothy (2017). Legitimate Expectations, Historical Injustice, and Perverse Inentives for Settlers. Moral Philosophy and Politics, 4(2): 207-228. Waligore, Timothy (2018). Redress for Colonial Injustice: Structural Injustice and the Relevance of History. Global Justice. Theory Practice Rhetoric, 11: 15–28. Walzer, Michael (1994). Thick and Thin: Moral argument at Home and Abroad. University of Notre Dame Press. Webb, Charlie (2016). Reason and Restitution: A Theory of Unjust Enrichment. Oxford University Press. Weber, David (1998). Borbones y Bárbaros. Centro y periferia en la reformulación política de España hacia los indígenas no sometidos. Anuario IEHS 13: 147-171. Weinstock, Daniel (1996). Natural Law and Public Reason in Kant’s Political Philosophy. Canadian Journal of Philosophy, 26(3): 389-411. Weinstock, Daniel (2001). Towards a normative theory of federalism. International Journal of Social Sciences, 167: 75-83

297

Wenar, Leif (2006). Reparations for the Future. Journal of Social Philosophy, 37 (3): 396-405. Williges, Keith, Meyer, Lukas H. Steininger, Karl and Kirchengast. Gottfried, “Fairness Critically Conditions the Carbon Budget Allocation Across Countries.” (Under Review). Wolf, Clark (2009). Intergenerational Justice, Human Needs, and Climate Policy. In A. Gosseries and L. Meyer (eds.) Intergenerational Justice. (pp. 347-376). Oxford University Press. Woollard, Fiona (2012). Have we Solved the Non-Identity problem. Ethical Theory and Moral Practice, 15: 677-690. Ypi, Lea (2013). What is Wrong with Colonialism. Philosophy & Public Affairs, 41(2): 158-191. Zeballos, Estanislao (1961). Callvucurá y la dinastía de los Piedra, Hachette. Zeballos, Estanislao (2008[1878]) La Conquista de Quince Mil Leguas: ensayo para la ocupación definitiva de la Patagonia. Continente. Zellentin, Alexa (2014). Compensation for Historical Emissions and Excusable Ignorance. Journal of Applied Philosophy, 258-274. Zimmermann, Reinhard (1995). Unjustified Enrichment: The Modern Civilian Approach. Oxford Journal of Legal Studies 15(3): 403-429. Zimmermann, Reinhard, and Jacques du Plessis (1994). Basic Features of the German Law of Unjustified Enrichment. Restitution Law Review, 2: 14-43.

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