I have a little scenario here for the hardcore libertarian political theorists. Say I'm taking a swim in the local lake, (which is unowned), and when I get home I realize that my skin has a rash because of the pollutants in the water. I know where the pollutants came from, (the local coal factory), do I have the right to call up my security agency and force the factory to stop polluting the lake? Or can I not because I don't own it? Or can I because the factory is violating my property right in my person? Thoughts!
I don't believe so, because it would be a case where you knew the risk of swimming there (whether you decided to find out the safety hazards beforehand or not is irrelevant, except to your health of course). I might be wrong on this one, but I would think it would be a case of where it's almost as if the coal factory owns the lake. That is, no one else has a claim to it, but the factory is utilizing it (for waste allocation). As I said, I might not be totally right, or even right in the slightest. Others will hopefully give their input, and there is lots of knowledge and insight here.
I mean, if I owned dogs, and my dogs ran around a nearby woods that no one else uses or owns, I effectively have homesteaded the woods for the use of letting my dogs run around.
The only one worth following is the one who leads... not the one who pulls; for it is not the direction that condemns the puller, it is the rope that he holds.
It depends upon the social norms regarding the lake. If we assume the lake to be public property, there are two possibilites that I can identify immediately:
1) Public property where the citizens can reasonable expect the lake to be safe. People cannot just pollute that lake, as the norms do not allow for it.
2) It might be a lake where the citizens use it as a dump. In this case, anyone swimming in the lake is doing so at his own risk, as he has no reasonable expectation for it to be safe.
It might be a lake where the citizens use it as a dump
Read that as "take a dump" for the longest time.
lol
There are implied rights here that need dispute resolution to make them clear. Under standard libertarian rights theory, we don't have a rights issue when there's no scarcity. So if you have people jumping in the lake and swimming in it, and we don't have conflicts over when and where people get to use it, no one has any pressure to claim it as property. But, we tend to use the first come, first serve rule in establishing rights.
In your case, you say it's unowned, which means that no one has made an ownership claim yet. Also, the fact that you are swimming in the local lake implies that you've done this before, and so have others. So, from the community of swimmers (and probably casual fisherman) the introduction of pollutants would be cause for a high level of anger and a new cost by making something scarce which was not: healthy fish, safe drinking water, and safe swimming environment.
On the other hand you have a business which is going to say, "I checked there were no claims of property, and I am making a claim on this property by using it as a sink for the byproducts of my production."
At this point it ought to be a matter of assigning property rights to the lake to the individuals who use the lake. Then we can start to assign tort actions to inappropriate alteration, or use, of the property.
Now air and water are both non-solids which cannot be controlled in the same ways in which one can control solid matter. If I release gases into the air, fluid dynamics are going to move the gas in ways that I can predict to a very small degree, but which I know will in fact end up spilling over into the property of others. The same would be true in the lake with the cycling and currents in the water. So when my byproducts end up altering the water in other locations within the lake, someone would have a tort action.
But let's say the property right gets purchased through some means by the company. Well, there are still non-violent voluntary economic actions that can be taken by the local community. Refusing to voluntarily interact with the company that runs the factory, the owners of the factory, and/or employees of the factory would all be mechanisms by which you drive up their costs. Suing for side effects if they interfere with groundwater, etc.
If the court systems refuse to push the costs to the community back onto the factory's owners, the community can produce alternative court systems, and pursue actions in these courts.
Two things need to be clear, if you can't get sufficient local support, then you won't be able to alter the company's behavior without engaging in violence. If you can get the support, then you should be able to get sufficient pressure through voluntary sanction of people and/or products associated with the company to alter their behavior. If as a last resort you are unable to get sufficient economic pressure on the company, then the local community could agree to violently interfere. Then the question will be whether or not the company has sufficient support from other members of society to resist and sanction the perpetrators of the violent interference.
Ideally, in a free society, these interactions would tend to be more and more efficient. Violent interference causes destruction of capital, so it's going to be a less efficient option within the system as a whole. One would expect individuals and courts to want to bind the negative and positive side-effects of any productive effort back to the person(s) involved whenever possible. Only in that way do the costs get covered in a voluntary way.
The issue with nation states as they exist today, is that violent interference externalizes certain costs, pushing them onto others who have no benefits, but end up suffering losses. This breeds resentment and contempt in the people that suffer these costs. This has been a breeding ground for all kinds of lunacy in social and political theory and technology (meaning implementation of solutions).
Another point to make, as precedent is established, it becomes part of the "rules of the game", if companies know from historical precedent that their pollution into "unowned" property will cause this kind of an uproar (interpret as costs they will have to endure), they will be more likely up front to seek means of offsetting the dispute resolution costs before hand. This is why the rule of law, specifically natural property rights and common law, are so important for reducing the uncertainty. We want these productive efforts to succeed. Providing a stable and "fair" environment is in all of our best interests, even if a single localized instance may cost us more than we want it to.
I don't think you'd have the right to force the factory to stop polluting the lake, but I think you would have the right to force the factory to pay for any and all medical costs you incur as a result of swimming in it, maybe plus interest.
Edit: Actually, I think you'd have at most the right to force every single person who's ever worked at that factory and its owner(s) (starting from the time it started polluting into the lake) into the lake for the same amount of time that you were in there. That's much more substantial than the above.
The keyboard is mightier than the gun.
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Two persons (the swimmer and the polluter) are using the lake in incompatible ways: i.e. the polluting of the lake interferes with the swimming.
The solution here is not for the swimmer to force the company to stop polluting the lake and for the lake to remain unowned.
What is needed is for the lake to become someone's property.
So really the question is how original ownership rights should be assigned.
The rules governing homesteading are notoriously difficult to standardize, or express in abstract principles. The only thing that one can really say on the subject is that use of unowned property conveys ownership. But how exactly "use" is to be defined (frequency, temporal priority, investment in the property, et al) is open for debate.
I think what I wrote in my last post applies only if it's assumed that any lake that isn't marked as containing pollution is unpolluted. In that case, the company has committed fraud against the swimmer. Otherwise, if it's assumed that any lake that's unmarked as safe is potentially dangerous (i.e. caveat natator), then the company isn't liable at all, as the swimmer went into the lake at his own risk.
Personally, I think the former standard is more "natural", as industrial pollution has hardly been around forever.