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Against “Permanent Sovereignty” over Natural Resources

April 2014
Politics Philosophy & Economics 14(2)

Authors:

University of Southampton

The doctrine of permanent sovereignty over natural resources is a hugely consequential one in the contemporary world, appearing to grant nation-states both jurisdiction-type rights and rights of ownership over the resources to be found in their territories. But the normative justification for that doctrine is far from clear. This article elucidates the best arguments that might be made for permanent sovereignty, including claims from national improvement of or attachment to resources, as well as functionalist claims linking resource rights to key state functions. But it also shows that these defences are insufficient to justify permanent sovereignty and that in many cases they actually count against it as a practice. They turn out to be compatible, furthermore, with the dispersal of resource rights away from the nation-state which global justice appears to demand.

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AGAINST ‘PERMANENT SOVEREIGNTY’ OVER NATURAL RESOURCES

Chris Armstrong, University of Southampton

Abstract: The doctrine of permanent sovereignty over natural resources is a hugely

consequential one in the contemporary world, appearing to grant nation-states

both jurisdiction-type rights and rights of ownership over the resources to be found

in their territories. But the normative justification for that principle is far from clear.

This article elucidates the best arguments that might be made for permanent

sovereignty, including claims from national improvement of or attachment to

resources, as well as functionalist claims linking resource rights to key state

functions. But it also shows that these defences are insufficient to justify permanent

sovereignty, and that in many cases they actually count against it as a practice.

They turn out to be compatible, furthermore, with the dispersal of resource rights

away from the nation-state which global justice appears to demand.

Keywords: Permanent sovereignty; natural resources; international law; self-

determination; global justice

the river…came flowing in a semicircle crossing the border from

Sweden and down through this village and back into Sweden a few

kilometres further south. And I remembered the year before when I

had gazed down into the whirling water and wondered whether in

some way or other it was possible to see or feel or taste that the

For helpful comments on earlier drafts of this article I would like to thank Ayelet Banai, Gillian

Brock, Simon Caney, Andrew Mason, Darrel Moellendorf, Shmulik Nili, David Owen, Annie Stilz, Kit

Wellman and Lea Ypi.

water was really Swedish and was only on loan this side of the

border. But I was so much younger then and didn’t know much

about the world, and after all it was just a fancy.

It might be fanciful to suppose, as Per Petterson’s young hero does, that water

flowing from Sweden tastes somehow Swedish. But though we can be sure that the

water, or tin, or copper found in Sweden are no different in their properties from the

water or tin or copper found in Norway, there is one sense in which they are

‘Swedish.’ They are Swedish in the sense that international law defines them as the

preserve of the Swedish people. A number of instruments of international law

stipulate clearly and unambiguously that natural resources are at the ‘disposal’ of the

nation-states ‘in’ or ‘under’ which they exist. The United Nations’ (1966)

International Covenant on Civil and Political Rights, for instance, states that ‘All

peoples may, for their own ends, freely dispose of their natural wealth and

resources.’

This doctrine, which has come to be known as the doctrine of ‘permanent

sovereignty’ over natural resources, is a powerful organising principle within world

politics. Although we might make the mistake of assuming it to be a natural fact of a

world of states, the principle only came to be elaborated and enshrined within

international law during the 1950s and 60s, when it was a highly controversial part of

the struggle for decolonisation. Whilst many newly-independent countries were keen

to institute a strong doctrine of permanent sovereignty into international law, major

world powers were keen to restrict permanent sovereignty with a set of provisos

ensuring that natural resources were used for the wider good, and in the interests of

global economic cooperation.

Still, the principle continues to have a major effect in

constituting what we might call the status quo of the contemporary world order.

Individual nation-states enjoy an extensive and essentially exclusive set of rights over

the resources within their territories, albeit with exceptions to that rule arising

through voluntary treaty-making.

In a pragmatic sense, then, permanent sovereignty is the default position: any

argument for a particular distribution of resource rights will have to contend with the

fact that states possess those rights as a matter of legal reality, and are unlikely to

give them up easily. But ought it to be seen as the default position from the moral

point of view? What, if anything, is the normative basis of permanent sovereignty?

Can it be justified? This article will identify the best available arguments in favour of

the doctrine, and assess whether they are adequate to the task of justifying it. Despite

its huge significance within world politics, permanent sovereignty is not often

explicitly justified within either international law

or political philosophy. Some

defences do exist, as we will see later in this article. But the method will also be one of

extrapolation, whereby we seek to identify whether defences of territorial rights over

land, or of self-determination, for instance, could be extended to natural resources.

The article begins in section I with some preliminaries, defining resources and

resource rights, and distinguishing the question of rights over resources from the

question of rights over land. Four arguments in favour of permanent sovereignty will

then be adduced - and each, ultimately, will be found wanting. Section II examines

whether nation-states have plausible ‘improvement’- or ‘attachment’-based special

claims over ‘their’ resources. I establish that these two arguments fail to justify

national permanent sovereignty. Although there are some improvement-based

special claims which might apply at the level of nation-states, these apply to some

resources and not to others, and moreover are best responded to by granting not full

and exclusive rights over all of the natural resources within a territory, but an

appropriate share of the income from the relevant resources. In the case of

attachment, whilst there are again some plausible special claims within nation-states,

these again fail to justify granting full and exclusive resource rights to them; such

attachment-based claims apply to some resources and not to others, do not in any

case demand the full set of resource rights, and in many of the most plausible cases

actually challenge, rather than support, the ability of the nation-state to exercise

exclusive control over resources.

Section III then examines two rather more ‘instrumental’ arguments which

might be advanced for placing resource rights in the hands of nation-states, each of

which suggests that the doctrine of permanent sovereignty serves an important good

(with the candidates being the good of members’ basic rights, and the good of

effective conservation of resources), which would not be well served otherwise. The

problem with these two arguments is that they are compatible with a regime of

dispersed control over resources, and do not require or even recommend

thoroughgoing permanent sovereignty. What is a powerful pillar of the contemporary

world therefore turns out to stand without adequate justification. The conclusion

draws some conclusions from this deficit for debates about global justice and

territorial rights.

I. Resources and Rights

To make progress in investigating the justifications (if any) for permanent

sovereignty, we need to know, first, what natural resources are, and, second, what it

would mean to enjoy rights over them. This article defines natural resources as any

raw materials (matter or energy) which are not created by humans, but are available

to sustain human activities.

This definition follows the usage within international

law, and of international organisations overseeing trade in resources. For the

purposes of compiling statistics on natural resources and economic growth, for

instance, the Organisation for Economic Cooperation and Development suggests that

‘Natural resources are natural assets (raw materials) occurring in nature that can be

used for economic production or consumption.’

Natural resources need to be distinguished from the land in, on or above

which they occur. Though in practice this can be difficult, expensive and destructive,

natural resources such as metals, petrochemicals and minerals can in principle be

removed and transported away from the land in, on or above which they lie.

Economic theory has not traditionally helped us much here insofar as its traditional

list of the factors of production (land, labour and capital) included natural resources

as a part of land. But more recently we tend to find the two separated more clearly

both in economics and in the law, so that we witness instead discussion of ‘land and

natural resources.’ The fact that natural resources are in principle removable from

land means that we can intelligibly ask questions about whether rights over each

should be allocated separately. In fact there is increasing recognition within political

theory that rights over resources cannot simply be ‘read off’ from the territorial right

to police a particular geographical jurisdiction, and that the standard justifications

for rights of jurisdiction or border control cannot simply and immediately be

extended to produce a justification for rights over resources. As David Miller puts it,

in the absence of an argument why rights to exercise jurisdiction over territory,

membership and resources need to be held together, ‘The relationship between the

three sets of rights should be regarded as an open question.’ Each may require a

separate, albeit potentially overlapping argument.

As a result it is possible – and desirable - to distinguish between indirect and

direct claims to natural resources. A direct claim to a resource, on my account, is a

claim which states that a specified agent has a prima facie claim to control, securely

access or constrain others’ access to a specified resource simply because of some

feature of her relationship with that resource (for instance, that secure access to that

resource is in itself necessary to her ability to pursue her central life-plans; see below).

An indirect claim to a resource, by contrast, is one which states that a specified agent

has a claim to control, securely access or place constraints on others’ access to a

resource but derives that claim purely from other, prior claims such as claims to

exercise control over land or over borders. Thus a person might say: I must be

allowed to control resource x, or to be allowed to exclude others from accessing it,

because use of resource x by others will harm the integrity of my land, or violate my

(putative) right to regulate access to that land. Such indirect claims are rather a weak

basis on which to ground claims to natural resources. For one thing, many natural

resources (such as freshwater, fish, wild animals and possibly even oil) are not tied to

a particular piece of land but are rather ‘fugacious.’ On the other hand, even claims to

resources which are not fugacious are vulnerable to the challenge that if resource x

could be removed without harming the integrity of the land (for instance, by some

high-tech horizontal mining technology), any resource claims would then dissipate.

By contrast a direct claim to a resource would remain intact regardless of whether

and how others might access or extract it, and does not depend upon a close

connection between resources and specific geographical sites. In section II I

investigate national special claims which are direct in form, suggesting that nations

are entitled to rights over resources because of some feature of their relationship with

those resources. But it is also possible that nations, or states, might have good

indirect claims to natural resources if it can be demonstrated that without that

control other valuable ends would suffer. Section III considers two rather more

indirect arguments which suggest that important political projects would suffer if

states were denied rights over ‘their’ natural resources.

What, finally, would it mean to enjoy rights over a natural resource? Drawing

on Elinor Ostrom’s influential work, I suggest a list of key resource rights. A first set

of four includes the following: Access is the right to interact with a resource and to

enjoy ‘non-subtractive’ benefits from it – benefits which, as with pure public goods,

do not prevent anyone else enjoying the same right.

Withdrawal is the right to

obtain and indeed to remove resource units for one’s use, or to enjoy subtractive

benefits. Alienation is the right to sell a resource. The right to derive income is the

right to obtain proceeds from the sale of a resource, or to extract some other form of

income from it.

All four rights in our first tier allow agents to derive benefits from

resources. But we can also move up a level and delineate rights to qualify the ways in

which such benefits can be enjoyed by others. A second tier of four rights includes the

following: Exclusion is the right to determine who can access and withdraw a

resource. Management is the right to set rules for how resources can be accessed or

withdrawn, and conversely to make decisions about whether and how particular

resources ought to be protected. The right to regulate alienation is the right to set

rules about how rights over resources can be sold or otherwise transferred. The right

to regulate income is the right to set rules about who can derive income from

resources they have rights over, and how, and as such includes the ability to levy

taxes on benefits. Taken together, subsets of these eight rights can capture the

substance of what are typically called property rights over resources, and what might

be termed rights of jurisdiction over them.

The point to make immediately is that these rights are both conceptually and

practically separable. We should not be misled into assuming that all these rights in

some sense naturally cohere into a single and simple notion of ‘ownership,’ for

instance. Honoré’s famous account of the incidents of property makes just this point

very clearly. As he puts it, ‘Historically there have been many reasons for separating

the standard incidents into two or more parcels. Indeed, historically speaking, the

metaphor of splitting may mislead, for in some cases full ownership has been built up

from the fragments, not vice versa.’

Such fragmentation is not exceptional or

aberrant.

Hence to ask ‘who owns natural resources?’ is certainly the wrong

question, if that question misleads us into assuming that all of the various rights over

resources must be concentrated in the hands of a single agent. That might be the

outcome of an argument about resources but it ought not, at the risk of begging the

question, to be its starting point.

Those preliminaries set the scene for what follows. We are looking, in this

article, for arguments which might justify granting an extensive set of rights over

natural resources to individual nation-states. The arguments considered in the next

section ground resource rights for nations directly on special claims which the

nations in question putatively have over them, as a result of some feature of their

relationship with ‘their’ resources. The arguments considered in section III seek to

ground states’ permanent sovereignty in the (indirect) significance of control over

resources for valuable ends such as the securing of citizens’ basic rights, or

conservation. In each case I demonstrate that, even insofar as the arguments under

review are good, they do not suffice to ground anything like a full and exclusive set of

resource rights for nation-states. As such permanent sovereignty stands without good

justification.

II. Permanent Sovereignty and National Special Claims

Given the relative scarcity of direct arguments for the principle of permanent

sovereignty, one place to look for support would be erstwhile defences of control over

land, to investigate whether these might generate plausible justifications for control

over resources too. Whilst not all defenders of territorial rights over land explicitly set

out their stall to defend rights over the resources under it, it is nevertheless possible

that they provide the conceptual tools for doing so. A variety of nationalist theorists

have placed their faith in a justification of national control over territory which

focuses on the way in which nations or nation-states come to enjoy a particular kind

of relationship with land.

A first argument draws on ‘improvement’-based special

claims, and suggests that national communities may have invested a good deal of care

and work in a territory or its resources, and as such earned rights over that land or

those resources. A second argument relies on the significance of ‘attachment,’ and

suggests that the attachment which national communities come to form with land (or

resources) is crucial from a normative point of view, and justifies granting nation-

states extensive resource rights. Such accounts ground claims in the way in which the

people, and land (and perhaps its resources), have become adapted to each other in a

deep way. One variant emphasises economic value whereas the other emphasises the

centrality of land or resources to national projects or identities; most nationalist

accounts, perhaps, advance a combination of both arguments. We will inquire

whether nationalist accounts of territorial rights can extend into the domain of

resources, and provide a justification for a strong principle of control over resources.

I will show that they do not.

Improvement-Based National Claims

Perhaps a special claim from ‘improvement’ might provide us with a reason why

nations might be entitled to control the resources within their territories.

The

argument will suggest that nations add value to natural resources over time, and that

this value demands that we place control over those resources in the hands of the

nation in question. We need to be able to say here, according to Miller, that a nation

has done things to improve a territory (or its resources) which can be appreciated as

improvements according to some universal criteria of material value; examples might

include cultivating land, digging wells, draining malarial swamps, making land more

productive, and so on.

However it is unclear, for three major reasons, whether such an argument can

provide solid backing for anything like the doctrine of permanent sovereignty. First,

even insofar as the improvement of resources occurs, it is not obvious that it makes

sense to attribute this to the national community itself. We might object to such a

claim on the basis that the national community is an inappropriate agent to which to

attribute praise or blame.

But even if we could surmount that issue, it is not

empirically obvious that improvement of resources coincides with membership of a

particular national community. As is well known, China has pursued a relentless

policy of buying up the natural resources of many African countries, many of which

were previously unappropriated. It is not clear what improvement-based claims those

African countries would then be able to make. They have certainly sold exploration

rights to Chinese companies, but pointing to that fact to justify their possession of

resource rights in the first place can only beg the question. Much more generally, in a

global economy the extraction and refining of natural resources is frequently the

preserve of multinational corporations which employ people in many countries, may

pay taxes in another country and dividends to shareholders in still further countries.

In very few countries indeed is ownership of natural resources by foreigners actually

forbidden, and in the rest the overlap between improvement and national

membership will be patchy at best.

Second – and notwithstanding the first objection - improvement-based

special claims will be troubled by the fact that the degree of ‘cultivation’ of resources

is very variable.

Some resources have indeed been improved or protected, but others

have not. For instance, some resources will be undiscovered, and it is hard to see how

any direct special claims could apply to them. Others will, like freshwater, literally fall

from the sky or (often) flow from sources in other countries.

Still others will lie

dormant, and will not have been improved in any significant sense. In the case of

minerals or petrochemicals buried beneath the ground, it is questionable just what

the nation has done to earn an entitlement to them.

Even if the costs of discovery

and extraction might justly be recouped, this will still leave a substantial portion of

value – or ‘resource rent’ – which is not created by the national community in

question. Why, then, would there be any improvement-based claim over that value?

Perhaps, in attempting to make that view plausible, our defender of

permanent sovereignty might suggest that whereas the national community does not

actively contribute to the creation of that value, it may still do so more passively. For

instance, we might say that the market value of a buried resource could be increased

simply by a decision not to exploit it, when others do exploit theirs. That decision not

to exploit is after all a decision in its own right. But resorting to such arguments is

risky for two reasons. For one thing the argument runs the risk of circularity, in

grounding a right to control resources on the fact that nation-states reserve the right

to exploit or not exploit those resources. The fact that a nation-state has excluded

others from exploiting them can hardly justify the right to so exclude them. For

another, the claim that nations might add to resources’ value just by leaving them in

situ opens a very troubling can of worms, for by the same token other people outside

of the nation will add to their value more or less passively too – one nation by

desiring that good and hence increasing its market price; a further nation by

possessing quantities of the same resource but not selling them. Miller, for instance,

earlier pointed out quite correctly that ‘the value of the resources available within the

territorial boundaries of any one state depend on global institutions such as the

international commodity market.’

At the very least, this suggests that nations might

be entitled to part of the income from their resources, but that outside actors might

also be so entitled. Unless we can establish that nations labour very directly over

specific resources (which will not be true in many cases), that possibility is a daunting

one.

The third and most significant problem is that even if the improvement-based

argument generates a plausible national special claim over resources, it is far from

clear that it should be responded to by allocating exclusive and full resource rights to

nation-states. Observe here that in the first instance, according to Miller, it is the

value added to a resource which the nation has a putative claim over, and not the

resource itself: ‘the nation as a whole now has a legitimate claim to the enhanced

value that the territory [or resource?] now has.’

We might then ask why the correct

response is not to allocate a quite specific form of resource right to nations, rather

than the full complement of resource rights. In particular, we might, if we accepted

the argument from the creation of value through to some kind of national entitlement,

accord nations a right to derive income: a right to a part of the proceeds should those

resources be sold, or perhaps some other form of income. But it is not clear why they

ought to be accorded any broader set of rights.

We need an argument, then, why improvement-based special claims – even

insofar as they are good - need to be met by giving particular nation-states a full set of

exclusive resource rights. In particular, even if nations did have property-like claims

over the resources in their territories we would need additional reasons for thinking

that a regime of individual national jurisdiction was also necessary, as opposed to a

global jurisdictional regime for instance. One reason for also invoking jurisdictional

rights has recently been suggested. Miller has argued that according limited resource

(or property) rights to a national community will not allow its members to securely

reap the benefits of their labours, in the absence of more substantial rights of

jurisdiction over resources. As he puts it, ‘If a group has added value to territory, its

continued enjoyment of the value it has created will always be insecure unless the

territory is controlled by political institutions that represent the group.’

One

nation’s ability to derive income from its oil, for instance, will perpetually be

vulnerable to external agents’ decisions concerning the legitimate use and sale of that

resource. If an outside actor can potentially change and change again the rules

determining how, when and under what constraints income from resources will flow

back to rightful recipients, then receipt of that income will be highly insecure.

The argument here appears to target rights of jurisdiction in addition to

national property rights. However, Miller’s argument is not sufficient to establish that

a nation ought to enjoy exclusive jurisdiction over ‘its’ natural resources. In the first

instance, observe that the argument only stipulates that some agent should be given

stable jurisdiction over resources, and that we should be able to construe this agent

as a representative of the nation which purportedly owns a resource. This argument

does not give us any reason why this should be a single agent, or if so why that single

agent should be the nation in question. A Kantian might say, for instance, that rights

over objects such as natural resources are never ultimately secure until the civil

authority of states is nested within a cosmopolitan international order. If what we are

after are stable and just rules of property, then we ought to commit ourselves to the

emergence of such an order. Alternatively we might argue, on the basis of an interest

in the good governance of resources (see section III), for a dispersed multi-level

system of proprietorship over resources. If that system also upheld generally stable

rules on resources, and adequately represented those who had created value, there

would again appear to be no objection. Short of a rebuttal of such possibilities, the

case for exclusive national control has not been made.

We can, in fact, turn Miller’s objection more forcefully against his own desired

conclusion. If we accept that the nation ought, if it is to reliably benefit from its

efforts, to exercise a share in jurisdiction over any resources within its territory, once

we acknowledge (as Miller appears to) that the national community is only one of the

agents capable of increasing the value of a particular resource then it becomes much

less plausible to hold that this jurisdiction should be exclusively national. If the value

of a given resource is the product of the efforts of nationals, non-nationals and / or

participants in the ‘international commodity market’ then we have the question of

how to secure any stream of income to which outsiders might be entitled. Exclusive

national jurisdiction would appear to render outsiders’ claims ‘always insecure’

themselves, and specifically vulnerable to the whim of the local nation-state. A

regime of shared jurisdiction over resources, in which each party was appropriately

represented, would appear to be optimal, other things being equal.

Attachment-Based National Claims

Perhaps nations might be entitled to rights over their resources because they have

integrated control over those resources into their collective life-plans, and come to

understand themselves as communities as collections of people who live in a close

relationship with this forest or that gold-seam. Miller also suggests such an

attachment-based argument for national resource control, noting that particular

territories (and perhaps the resources within them) come to attain symbolic

importance for nations as a result of their occupation of those territories, symbolic

value which may be ‘valuable’ to them alone.

I have suggested elsewhere that that

the attachment-based argument for resource rights is often credible,

and so rather

than question the validity of attachment-based special claims themselves, I want to

cast doubt on whether they can plausibly generate a claim for exclusive national

control over all natural resources within a given territory. I will suggest that there are

several reasons why this is highly unlikely.

The first is that the kind of strong and enduring attachment Miller appears to

have in mind typically applies to a limited subset of resources, rather than to all

resources within a territory. This suggests that if it applies to nations at all, the

attachment-based justification will be patchy and uneven in its application. Simply

put, there will be many other resources which simply do not figure in the national

imagination in any significant way, and which are in fact relatively neglected. The

logic of the attachment-based argument suggests that claims over such resources will

also be lacking.

The second reason is that a strong and enduring attachment appears to be a

quality of rather small-scale communities, rather than nations themselves. A good

example might be the Saami people of Scandinavia: roughly sixty thousand members

of an indigenous community which has sustained itself for more than a thousand

years by herding reindeer. The task of feeding and herding reindeer dictates the

movements of Siidas – small groups composed of several families – across the

seasons. It provides an economic foundation, but also provides a shared cultural

focus for that community. What we have in this case is a situation where there is an

intimate and profound connection between an individual’s identity and its ability to

securely interact with a specific natural resource. Whilst all of us will have life-plans

dependent on the availability of some natural resources (including, at the very least,

the objects of our basic rights, such as clean air and drinking-water), some of our life-

plans demand secure access to specific natural resources. We don’t understand

ourselves as fishermen or as hunters if there are no fish to fish, or no prey to hunt,

and Saami people may not understand themselves as Saami people if they are denied

secure access to ‘their’ reindeer herds. Now even in the Saami case it is an open

question to what extent resource claims are weakened by the recent ‘modernisation’

of the semi-nomadic Saami existence (with reindeer-herding being transformed by

the introduction of two-way radios, snowscooters and cross-country motorbikes), or

by the gradual ‘Scandinavianisation’ of the Saami (with only an estimated ten percent

of the community now engaging in herding, or dependent upon it for their upkeep).

But otherwise the case looks like providing a plausible basis for attachment-based

special claims over some resources. When we shift our focus to nations, though, it

just does not seem possible to produce examples where a majority of the members of

a given nation genuinely identify as part of that nation as a result of their direct

relationship with specific natural resources.

Both reasons suggest that although attachment appears capable of generating

good special claims over some resources, it appears highly unlikely to give us the

argument for permanent sovereignty which is being sought. In fact it is worth

returning to the concrete political implications of the Saami case, for it is not only the

case that the specifics of the Saami case fail to transfer substantially to the national

case. More worryingly than that, the Saami case threatens to actually challenge the

case for exclusive national control over resources. It is worth pointing out that the

rights of the Saami people – like the rights of indigenous peoples in many other parts

of the world – are claimed against nation-states. The Saami community – like many

indigenous communities (or ‘non-state peoples’) in the Americas – fail to map onto

national boundaries. Rather, the Saami land – Sapmi – spans Norway, Sweden,

Finland and Russia (as do the reindeer-herds themselves, given their seasonal

movements). Furthermore, although the logic of international law has often

channelled the claims of indigenous people as though they were claims for something

like permanent sovereignty over resources, their actual character has often been very

different (and often much more limited).

Through forums such as the Saami

Council

the Saami people are able to campaign for equitable treatment across

several countries, and during the Council’s membership of the World Council of

Indigenous Peoples it was able to voice an indigenous challenge to the principle of

exclusive national control. In this context, rather than each country granting the

Saami control over ‘its’ reindeer, in granting rights over reindeer and then allowing

the Saami to move their herds freely across national borders it may be more accurate

to say that each country has, often reluctantly, relinquished control over these herds.

The example of indigenous communities does supply, then, a case where a

plausible claim for resource rights can be made – but in so doing it does not, typically,

bolster the case for national resource rights. Indeed it may undercut it. The best hope

for defenders of national control would presumably be to point towards truly national

cases where the same very intense relationship between resources and communal

identity can be identified. But it is not clear that such examples can be provided (and

it is certainly the case that they have not yet been provided by defenders of national

control). Rather, it appears likely that insofar as genuinely national attachment to

resources exists, it will be both specific to particular resources, and also potentially

satisfied by way of limited resource rights. Typical cases may include ones where

there is a close connection between specific resources and parts of the landscape –

where a specific kind of extractive industry, for instance, has played a key role in a

nation’s socio-economic development, and where that development has clearly left its

mark on the landscape. But such attachments could be respected by granting rights to

access such sites, and perhaps rights to continue to derive some income from

traditional industries of extraction or husbandry. It is not clear why they would

demand a full complement of resource rights, and it is far from clear that such

arguments extend to all of the natural resources to be found within each national

community. In sum, the attachment-based argument appears supremely unlikely to

deliver good grounds for full resource rights over all of the resources within a nation-

state. It will be partial in both scope and content.

III. Resource Control and the State

Even if we consider the nationalist arguments canvassed in the last section to be

unable to present nation-states with a full set of rights over all of ‘their’ natural

resources, we might still try to defend that conclusion on other grounds. An

alternative is to focus on the value of effective states. Perhaps states secure important

goods for individuals, and perhaps it is the case that they are unable to secure those

goods unless they are able to exercise effective ownership or jurisdiction over the

resources within their territories. If we can demonstrate that states’ can advance

important ends of justice, and also demonstrate that their ability to advance those

ends of justice depends upon their having such rights, then we will have derived what

could be called a ‘functionalist’ argument for resource rights. I examine two kinds of

functionalist argument in this section. The first would suggest that states are valuable

(as well as legitimate) insofar as they protect the basic rights of their citizens, and

that to enable states to protect basic rights in this way we need to accord them control

over their resources. But in fact I will demonstrate that this position is compatible

with quite limited control over resources, and certainly does not require anything

approaching permanent sovereignty. The second argument would suggest that

according control over resources to states (or Peoples, on Rawls’s account) produces

the best outcomes in terms of the conservation and effective use of resources. But the

evidence for this argument is very weak, and the good in question – here

conservation – turns out to be compatible – and likely more compatible - with a

situation whereby rights over resources are dispersed across a range of institutional

settings.

Citizens’ Basic Rights and Permanent Sovereignty

One potentially promising alternative to the nationalist arguments examined in the

last section would be a ‘functionalist’ view, according to which states have a duty to

meet the basic rights or needs of their citizens, a duty which in turn requires them to

exercise control over the natural resources within their territory. Broadly speaking a

functionalist account of territorial rights seeks to ground those rights on the way in

which states serve the interests of their subjects. States, we might say, are necessary

to ‘provide a unitary and public interpretation of the rights of individuals and to

enforce those rights in a way that is consistent with those individuals’ continued

freedom and independence from one another.’

If we did not have states, individuals’

basic rights or needs would go without adequate protection. The important question

though, for our purposes, is whether states’ ability to protect their citizens’ basic

needs depends on full and exclusive rights over the natural resources within their

territory.

Cara Nine’s recent account of states’ resource rights grounds them precisely

on the essential functions of states. Nine claims that a collective such as a state may

acquire territorial rights if the acquisition ‘is necessary for the provision of members’

basic needs [and] does not prevent others from meeting their basic needs.’

And

giving a state rights over the natural resources within its territory is something that is

necessary to ensure ‘secure access to the objects of members’ basic needs.’

But even accepting as plausible the claim that a state which secures its

members’ basic needs is (at least minimally) legitimate, the important question for

our purposes is just which rights over which resources are necessary to meet citizens’

basic needs. Here Nine’s position appears to have changed over time. At one point

she argued that ‘a state [must] have exclusive territorial rights regarding the control

of the natural resources within its borders.’

The claim appeared to be that full and

exclusive rights over natural resources (in short, permanent sovereignty) is simply a

necessary element of self-determination.

But it is questionable why we should think

this, and indeed why we should favour any vision of self-determination which asked

so much of us. After all, we can easily imagine regimes of mixed individual (including

foreign), common and state ownership where the state reserved for itself key

jurisdictional rights, regulated the extraction, exchange and expatriation of resources,

and perhaps taxed owners at each stage, without claiming for itself the status of

owner. It would be much too strong to suggest that such a state would not enjoy self-

determination. Notably, recent defences of national self-determination – such as that

of David Miller, for instance – are not arguments for complete or rigid sovereignty

over all internal affairs, and are compatible with the ad hoc transfer or power

upwards to, for instance, confederal bodies; as a result, Miller suggests, ‘there is no

reason to make a fetish out of national sovereignty.’

Miller could be wrong about

that, of course. But if he is, then he is in good company. Not only does his judgement

accord with other recent theorists of self-determination,

but it also accords with the

broad redefinition of sovereignty post-World War II – with what is sometimes called

the ‘human rights revolution,’ which sees sovereignty increasingly intimately tied to

the observance of basic human rights.

It also accords with the growth of

‘governance’ at the global and trans-national level, which sees a pooling of states’

authority to make decisions on a series of issues.

In the case of natural resources,

states have placed bounds upon their own authority by signing key international

instruments, and joining key international organizations, governing the use of for

instance fisheries, trans-boundary waterways, and hazardous chemicals.

We have

also witnessed the gradual emergence in international law of a set of duties

accompanying permanent sovereignty which, although at present rather weak, seek

to constrain the ways in which states use natural resources. Examples include the

duty to respect the rights and interests of indigenous peoples,

the duty to equitably

share trans-boundary natural resources,

and the duty to use resources

sustainably,

amongst others. Sovereignty over natural resources has not therefore

been a static and absolute category, but one which has been constrained by the partial

sharing of sovereignty over resources between states and by the parallel growth in

duties under international law.

Nine’s more recent view is considerably more nuanced, insofar as it now

allows quite significant constraints on states’ resource rights. Not only should we

refuse their territorial claims over the ‘commons’ (such as the Arctic and Antarctic

regions); but we should also refuse to grant states rights over the resources buried

deep under their territories. These are resources which, as I suggested in the last

section, states appear to have done little or nothing to ground any claims over.

Moreover, and more pertinently from Nine’s point of view, control over underground

resources appears at best weakly connected to a state’s ability to exercise jurisdiction

over a territory.

But even if we accept Nine’s functionalist account, this is not the only

qualification we should make. Recall that the functionalist account is grounded on a

state’s ability to meet citizens’ basic needs (or as Stilz puts it, basic rights). But if the

focus is properly on basic rights, then why not grant states control over precisely

whatever resources are necessary to meet basic rights, rather than all resources

within a territory? This challenge has two parts: why grant states rights over the

resources within their territories, and not over some general pool of resources? And:

why grant states rights to resources over and above those necessary to meet basic

rights?

What, then, of our first challenge? Are there any good reasons why states

ought to be able to meet their citizens’ basic rights by using the particular resources

found within their own territories? If the functionalist account can give us an account

of just why states should be entitled to those specific resources, then it might have

achieved something significant. Unfortunately the argument for that contention is

not entirely clear, at least insofar as functionalist accounts have thus far been

developed. Perhaps the functionalist account might be supplemented with arguments

drawn from the nationalist account. We might say, for instance, that insofar as

improvement-based or attachment-based special claims overlap with state

boundaries, the contention that states should enjoy jurisdiction over basic shares of

their own resources is strengthened. But that would provide rather weak support

because, as we have already established, it is not clear that special claims do overlap

very neatly with state boundaries, and many of the most plausible attachment-based

special claims appear to challenge, rather than support, exclusive state jurisdiction.

With regards to the second part of the challenge, restricting state claims to

those resources necessary to meeting basic rights – which the logic of the

functionalist argument would appear to support - would potentially rule out rights

over a large pool of resources. There may be some communities in which the minimal

quantity of natural resources available is precisely sufficient to meet basic needs. But

in many communities, there is an ‘excess’ (and often a very considerable ‘excess’) of

resources which are not necessary for meeting basic rights. Why grant rights over

these? On the other hand, there will be some communities in which the resources

available are insufficient to meet basic rights. Here presumably the functionalist

account would have to grant claims on other states’ resources, and in so doing limit

the permanent sovereignty of those states.

The functionalist account is likely to constrain states’ rights in other ways too.

If what we are concerned about was the protection of individual rights then we might

want to prevent states using resources in ways that damaged the basic rights of

outsiders, for instance. But we might also suspect that the rights of individuals were

likely to be best protected by a regime of dispersed and multi-level governance of

resources (see below). In principle there are a variety of institutions which could

protect the basic rights of individuals, and simply stipulating that these rights have to

be protected by a single agent – the state – would be indefensible.

Thus the functionalist account, in the end, appears to demand relatively little

in the way of resource rights. The one thing it certainly does demand is an

entitlement to the natural resources needed to meet citizens’ basic rights. But that is

compatible with – and in cases of shortfalls in some states will demand – constraints

on permanent sovereignty. And since no plausible account of justice will deny

individuals the objects of their basic rights, the functionalist account here seems to

have established very little.

Conservation and Permanent Sovereignty

We have already examined a functionalist account according to which states

putatively derive resource rights from their mission to protect the basic rights of their

citizens. But that is not the only functionalist argument possible. An alternative

would focus on the way in which resources are used – efficiently or otherwise – and

suggest that states ought to enjoy rights over resources because a system of

permanent sovereignty will produce an optimal pattern of resource use. Such an

argument might lean on the commonplace claim that assets (such as resources) will

deteriorate in value unless they are ‘owned’ or controlled by a single, specified agent.

John Rawls appears to lean towards more broadly functionalist arguments for

territorial rights in The Law of Peoples, though not always in much explicit detail.

But he certainly does suggest, at two points in that essay, that territorial rights might

be justified via a parallel with property. Much as an asset ‘tends to deteriorate’ ‘unless

a definite agent is given responsibility for maintaining it,’ so a government ought to

take responsibility for a territory and for ‘maintaining the land’s environmental

integrity.’

The argument, as we might reconstruct it, suggests that we will endure a

‘tragedy of the commons’ unless specified parties are allocated an interest in

conserving resources and their value.

The structure of this argument is a plausible one: resource control on the part

of individual states (or Peoples) serves an important good – effective conservation of

resources – which would not be secured by any rival system. Like the functionalist

argument from the basic rights of citizens, it places its faith in an empirical

conjecture that such a regime of resource rights will reliably serve an end of justice.

As Rawls presents it the functionalist argument from conservation or efficient

use is underdeveloped – it really does not progress beyond that initial parallel with

property, the staple of liberal economic theory. Even so, however, there are already

three points that we need to bear in mind about the argument as it stands. First, it is

not obvious why we would take Rawls’s argument to support extending all resource

rights to individual states. Elinor Ostrom’s pioneering work, for instance, has

established that there are many examples of communal ‘proprietorship’ rather than

ownership over natural resources in which resources are effectively and sustainably

used and managed. In such cases the ‘proprietors’ of those resources enjoy rights to

access and manage resources, along with some rights to withdraw from the common

stock, but do not enjoy rights to alienate them or even necessarily to derive income

from them. As such granting agents rights to sell or derive income from resources

does not appear to be strictly necessary for them to have an incentive to use them

wisely.

Second, the economists’ argument which Rawls picks up on is actually an

argument for individual ownership, which is meant to establish its superiority over

the inefficiency and wastefulness of state control. That argument standardly suggests

that individual ownership is necessary for the retention and creation of lasting value,

whereas communally-held assets will tend to deteriorate in value, at least relatively.

But Rawls actually appears to want to use that argument to justify something like

communal ownership. Economists are unlikely to be convinced, as their view is

precisely that communal ownership is insecure in its benefits. Indeed if at the global

level assets are already owned and looked after by individuals, then as far as the

economists are concerned the problem may be a non-problem. Why then (as far as

they are concerned) stipulate a need for national control? None of this is to say that

the economists are right; but it is to say that it is far from obvious how Rawls can

support his own argument by leaning on evidence which is usually held to serve the

opposite conclusion.

Third and most importantly, even if we reformulate the argument to suggest

that the optimal use of resources will come once we grant exclusive rights over them

to individual states, what is the evidence for that contention? To an environmental

scientist, the claim that the optimal basis for securing the best use of precious and

scarce resources was a regime of untrammelled state control would presumably be

alarmingly anachronistic. Moreover, although Rawls’s Law of Peoples depicts a world

of potentially autarkic states which are free to choose whether to engage with the

global marketplace or not, in reality it is a stubborn fact that states are already

comprehensively dependent on the natural resources of other countries. The UK, for

example, has fed its population for at least two hundred years only by supplementing

its own production with foodstuffs produced overseas, demanding amongst other

things vast quantities of freshwater for their production. It is not clear whether it

could sustain anything like its present population without access to other states’

freshwater. Four countries, in fact - the US, Australia, Canada and Brazil - are

currently engaged in a massive, though unplanned, transfer of ‘virtual’ water to the

rest of the world without which shortages of water for food production would become

disastrous very quickly.

We could make similar points about the reliance of

countries on the rainforests of the Amazon and Congo regions, for example, in their

capacity as key carbon sinks. Resource-cycles such as the global freshwater cycle or

the cycle of carbon emission and absorption cannot, as we know very well, be

controlled by individual nation-states, but they are indispensable to life as we have

come to know it. Fisheries policy appears to be a further case where the exclusive

pursuit of national interests exacerbates, rather than eases, the tragedy of the

commons Rawls is apparently concerned with, and where a sustainable future

appears to demand greater transnational cooperation.

Thankfully there are instances of the trans-national governance of resources

which have produced fairly robust advances. Prime examples would include the

governance of fisheries, or of schemes aimed at the forest protection such as the

International Tropical Timber Organization.

Such schemes have proliferated to

produce a mosaic of trans-national resource governance with overlapping jurisdiction

and mixed – but nevertheless significant – degrees of success. Perhaps the most

sustained and coordinated programme of trans-national resource governance has

emerged under the auspices of the European Union. Although general conclusions

are not easy to arrive at, it does seem to be the case that the EU has been

instrumental in resolving – or at least mitigating – a series of collective action

problems over resources. Whereas individual states have little incentive to adopt

expensive principles of environmental regulation, the knowledge that like rules will

be applied to all EU member-states makes them much more attractive.

Insofar as

exclusive national control can be an obstacle to resource conservation,

complex forms of global and trans-national governance of resources have already

delivered results - and, if we are to avoid the worst case scenarios of climate scientists,

we have to hope that these are only the first of many such experiments in resource

governance beyond the state.

In short, arguing for the superiority of permanent sovereignty as a guarantor

of resource conservation or efficient use is far from straightforward. Rawls may have

delivered a plausible argument to the effect that conservation of resources requires

that specific parties are allocated an interest in their preservation. But he has not

delivered the conclusion that this should be a single entity (or a single kind of entity,

such as the state), or that the interest in the preservation of resources should or must

be concentrated at one level. It seems likely that if caring for the environmental

integrity of resources is what we care about, then trans-national ‘proprietorship’ is at

least part of an ideal solution. We could also draw support from the United Nation’s

recent emphasis on developing policy frameworks for the management of what it

designates Shared Natural Resources, such as water, which are held to be

inadequately protected by a regime of primarily national control.

In other cases, a

degree of communal proprietorship at the sub-national level will also be preferable.

So whilst Rawls’s initial argument has a plausible structure, evidence for the

conclusion that effective proprietorship over natural resources will always occur at

the level of peoples or nation-states is weak. As with the broader functionalist

account, the good of resource conservation would appear to be compatible with

considerably qualified rights on the part of nation-states. Indeed we have good

reason to suspect that from the point of view of conservation the dispersed

governance of resources would be optimal.

Conclusions

In recent years discussion of the territorial rights of nation-states has come on in

leaps and bounds. Several things have become obvious during this time. One is that

defending states’ territorial rights is not easy, not least in the face of the claims of

outsiders. To the contrary, if defending the interests of individuals is what we care

about, granting states very firm territorial rights is a blunt instrument indeed.

may have been thought in the past that defending the territorial rights of states was a

rather easy enterprise, but this is not the case any longer; and while the

sophistication of defences of territorial rights is increasing, so too are the challenges

they have to face becoming more apparent.

A second conceptual advance has been the recognition that the traditional

elements of a state’s territorial rights – standardly comprising rights to exercise

control of borders, to maintain jurisdiction over land, and to control resources – are

not as tightly intertwined as was once thought. Each, potentially, requires a separate

justification. This article has investigated the prospects for defending one element of

a state’s territorial rights, as understood within contemporary international law. It

has been suggested that defending permanent sovereignty over natural resources is

fraught with difficulties. Arguments often advanced to defend control over land (such

as nationalist arguments which, on my analysis, typically press special claims based

on improvement and / or attachment) can be partially extended to cover resources,

but do not take us even close to permanent sovereignty for nation-states.

Functionalist arguments possess initial promise in presenting us with an account of

how the rights of individuals cannot be defended without states enjoying some rights

over resources (though, note, they do not necessarily tell us why there should be

states as opposed to some other organisation or web of organisations). But they do

not justify anything like permanent sovereignty either: their claims, even insofar as

we ought to accept them, are much more easily satisfied. Functionalist arguments

from conservation would tend to support a dispersal of resource rights away from

nation-states, across a variety of institutional settings. Functionalist arguments from

basic rights cannot rule that possibility out either – in fact if they take individual

rights seriously they ought to endorse it.

I want to pause now to examine just where our discussion of arguments for

permanent sovereignty leaves us, and to emphasise a rather striking fact about the

argument so far. I have considered four arguments which appear to offer the best

available justifications for permanent sovereignty, and found them wanting. As I have

suggested, introducing special claims does not speak in favour of permanent

sovereignty, but in favour of granting quite limited rights which in any case are at

least partly orthogonal to any national claims. Similarly, taking citizens’ basic rights,

or conservation, seriously speaks in favour of distinctly limited rights for states, and

suggests that constraints on states’ permanent sovereignty are both allowable and,

indeed, required.

The striking fact – which more observant readers will have spotted – is that in

so doing I have made no reference, in this article, to general claims to resources or to

broader principles of global justice. I have not suggested that permanent sovereignty

is unjustified because it denies individual equal – or equalizing – shares of resources.

Neither have I asserted that resource distribution is morally arbitrary (which in any

case is to put the cart before the horse if it means that we do not pay serious attention

to special claims), and found arguments for permanent sovereignty accordingly

wanting.

Neither, finally, have I invoked the spectre of bloody history, and

suggested that permanent sovereignty is undermined by the facts of colonialism,

resource grabs and the sheer historical brutality of the drawing of boundaries. Rather,

I have examined each of the four arguments on their merits and shown, in each case,

that following the logic of the argument leads us away from, rather than towards,

exclusive permanent sovereignty over resources. Even without invoking wider claims

of justice – even if improvement, attachment, the protection of citizens’ basic rights,

or the effective use of resources is all that we care about – permanent sovereignty is

found wanting.

But if we relax this – rather massive – constraint on the argument thus far

and allow broader claims of justice their due weight, the sheer clumsiness of

permanent sovereignty in serving justice becomes undeniable. A full account of how

we ought to balance special and general claims over resources would require much

longer treatment.

But if our question is whether permanent sovereignty actually

offers the best possible integration of special and general claims over natural

resources, the answer is resoundingly negative. Permanent sovereignty does serve to

protect a nation-state’s right to some of the income from resources which it has

improved or protected – but only by the rather blunt measure of granting it a right to

all of the income from resources (and indeed all other rights over them), whether

they have been improved or protected or not. It performs at best moderately well on

the issue of attachment, and I have suggested that the strongest attachment-based

claims relate to small-scale communities which in fact are often engaged in ongoing

struggles to wrest resource rights away from the nation-state. At the same time,

anyone outside of the national community who has developed a symbolic attachment

to a given resource – a Canadian Hindu wishing to perform puja at the Ganges, for

example – can be barred from accessing it at the whim of the local nation-state.

Permanent sovereignty cannot be justified by pointing to the need to secure the basic

rights of citizens, and the struggle to secure those rights must at least sometimes

require us to place constraints on control over resources. Permanent sovereignty

performs poorly in terms of conservation, and there is strong evidence that the

optimal governance of scarce resources would see their management partially

devolved both upwards and downwards from the state. Finally, and damningly, the

regime of permanent sovereignty simply ignores the claims of outsiders, insofar as it

restricts any benefits from resources to members of the nation-states in which they

happen to lie.

In recent years key decisions and instruments of international law have

increasingly emphasised the need to balance any claims to national control over

resources with the interests of non-citizens and with the requirements of

sustainability and intergenerational justice.

The arguments of this article suggest

that we ought to welcome such developments, and seek to extend them. Whatever a

just regime of resource rights ought to look like, a doctrine of untrammelled

permanent sovereignty must be an obstacle from rather than a boon from the point of

view of justice.

Per Petterson, Out Stealing Horses, translated by Anne Born (London: Vintage, 2006), p. 40.

For the full text, see http://www2.ohchr.org/english/law/ccpr.htm

As the arguments surrounding the drafting of the relevant instruments of international law amply

illustrate, these debates about the broad principle of permanent sovereignty were informed by very

specific and contingent political and economic goals. In particular, newly-independent countries were

concerned principally to disqualify concessions over key natural resources which had been granted – in

the years before independence – to corporations based in developed countries, whereas the latter

(including the UK, the US and France) adverted to constraining arguments about the importance of

sustaining global trade in an effort to protect precisely those concessions. For a full and illuminating

account, see Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and

Responsibilities (Cambridge: Cambridge University Press, 1997).

That is evident in the wording of the 1966 Covenant cited above, for instance, which does not provide

any reasons supporting permanent sovereignty. The only clue we have is the fact that the clause about

permanent sovereignty is included in an article (Article 1) about self-determination. We will consider

the connection between permanent sovereignty and self-determination in section III.

For a similar definition, see Mathias Risse, On Global Justice (Princeton: Princeton University Press,

2012).

Organisation for Economic Cooperation and Development Glossary of Statistics:

http://stats.oecd.org/glossary/search.asp . This definition of natural resources is contested by those who

suggest that whether a substance counts as a ‘natural resource’ depends fundamentally on the attitude

taken to that substance by the agent or community currently using it. I discuss but reject that view in

Chris Armstrong, ‘Resources, Rights and Global Justice: A Response to Kolers,’ Political Studies

(forthcoming 2013).

David Miller, ‘Territorial Rights: Concept and Justification,’ Political Studies 60.2 (2012): 252-68, at

254; see also Anna Stilz, ‘Nations, States and Territory,’ Ethics 121 (2011): 572-601; and Christopher

Heath Wellman, ‘Political Legitimacy and Territorial Rights,’ ms. A. John Simmons similarly observes

that the ‘connection between territorial rights [over land] and rights over all resources in the relevant

territory is not in any way (morally, physically, conceptually) necessary.’ Simmons, ‘States’ Resource

Rights: Locating the Limits,’ online symposium on resource rights:

http://territorynetwork.wordpress.com/ , at pp. 5-6.

On the features of pure public and collective goods, see for instance Richard Cornes and Todd

Sandler, The Theory of Externalities, Public Goods and Club Goods (Cambridge: Cambridge

University Press, Second Edition 1996).

Ostrom listed rights to access, withdraw, manage, exclude and alienate as the key resource rights. See

Ostrom, ‘Private and Common Property Rights,’ in B. Bouckaert and G. De Geest (eds) Encyclopedia

of Law and Economics, vol. II. Civil Law and Economics (Cheltenham: Edward Elgar, 2000), pp. 332-

79, at p. 339. In the first tier of rights, I have added the right to derive income since it is conceptually

distinct from the others; in the second tier of rights I have similarly added rights to regulate income and

alienation.

Tony Honoré, ‘Ownership,’ in his Making Law Bind (Oxford: Clarendon Press, 1987), pp. 161-92, at

p. 187.

As one leading legal account of property has it, ‘property institutions diverge enormously in the

range of elements they comprise.’ For instance, what we might call ‘use-privileges’ are often separated

from the right to accumulate wealth from a resource: ‘The shareholders in a public company or the

beneficiaries under a large trust have private wealth – cashable claims on scarce resources – without

necessarily having any substantial use-privileges over the items vested in the company or trustees.’ J.

W. Harris, Property and Justice (Oxford: Oxford University Press, 1996), p. 28, p. 27. Defenders of

global distributive justice might observe the reverse too: that a party might enjoy the right to access or

use a resource without having claims to derive (all of the) income from it.

See for instance Margaret Moore, National Self-Determination and Secession (Oxford: Oxford

University Press, 1998); Tamar Meisels, ‘Liberal Nationalism and Territorial Rights,’ Journal of

Applied Philosophy 20.1 (2003): 31-43; David Miller, National Responsibility and Global Justice

(Oxford: Oxford University Press, 2007). For a less obviously nationalist account which nevertheless

shares some core features with that account, see Avery Kolers, Land, Conflict and Justice (Cambridge:

Cambridge University Press, 2009).

Interestingly although Miller suggests that resource rights might require a different justification from

jurisdictional rights over territory, the argument he makes for national resource rights is grounded in

the same improvement- and attachment-based arguments that he uses to justify control over land. See

Miller, ‘Territorial Rights: Concept and Justification.’

Miller, ‘Territorial Rights,’ at 259.

For some arguments to that effect, see Jacob Levy, ‘National and Statist Responsibility,’ Critical

Review of International Social and Political Philosophy 11.4 (2008): 485-99.

Miller, National Responsibility, p. 219.

The sharing of rights over freshwater between nation-states already has a long history. Nearly half of

the land surface of the planet can be considered as part of one international river basin or another, and

the water from international river basins accounts for around 60% of global freshwater supply. More

than 220 nation-states – in other words, the great majority of them – are already sharing water with a

neighbouring country. See Peter Gleick, ‘Water in Crisis: Paths to Sustainable Water Use,’ Ecological

Applications 8.3 (1998): 571-79.

Miller seemed to concede that point, though it is not clear whether his argument can dispense with it

entirely and still function in the way he wishes it to. In On Nationality, he states that he does not wish

to endorse the view – which he identifies with Israel Kirtzner – that in discovering a natural resource

we create value in it. Miller, On Nationality (Oxford: Clarendon Press, 1995), p. 106, note 34.

For a fuller discussion of this argument with regards to Norwegian oil wealth, see Chris Armstrong,

‘Sovereign Wealth Funds and Global Justice,’ Ethics and International Affairs (forthcoming 2013).

Indeed Miller continues to say that ‘Since states are enriched and impoverished in seemingly

arbitrary ways by such institutions, this triggers an obligation on the part of resource-rich states to aid

those that are relatively poor’; ibid. p. 105. Such an argument plays a much less obvious role in his

more recent work.

Miller, National Responsibility, p.218.

Miller, ‘Territorial Rights,’ at 263.

For a useful critical discussion of Miller’s insecurity-based argument, see Kim Angell, ‘Do Insecure

Property Rights Ground Rights of Jurisdiction?’ Res Publica 19.2 (2013): 183-92.

Miller, ‘Territorial Rights,’ at 261-2.

See Chris Armstrong, ‘Justice and Attachment to Natural Resources,’ Journal of Political

Philosophy (forthcoming 2014). Note, though, that my own account does not rely on facts about

collective identification, in the way that nationalist accounts do.

For a good account of the way in which Saami claims have often failed to challenge the

overwhelming fact of state sovereignty in Scandinavia, see Fae Korsmo, ‘Nordic Security and the

Saami Minority: Territorial Rights in Northern Fennoscandia,’ Human Rights Quarterly 10 (1988):

509-24.

See www.saamicouncil.net.

Anna Stilz, ‘Nations, States and Territory,’ p.580.

Stilz is not sure that it does (at least by itself), and suggests that by contrast to the right to territorial

jurisdiction over land, any putative rights to control resources ‘requires a more complex justification.’

Ibid., 573. Though Stilz does not say so, it might be that she believes something like an occupancy-

based account can help to support states’ rights over natural resources.

Cara Nine, Global Justice and Territory (Oxford: Oxford University Press, 2012), p. 41.

Ibid., p. 42.

Cara Nine, ‘The Moral Arbitrariness of State Borders: Against Beitz,’ Contemporary Political

Theory 7 (2008): 259-79, at 272.

A rather different account of the connection between national self-determination and control over

resources has been suggested recently by Margaret Moore (‘Natural Resources, Territorial Rights and

Global Distributive Justice,’ Political Theory 40.1 (2012): 84-107). Moore suggests that it is important

for self-determining peoples to have control over the rules of use and transfer of natural resources. But

although Moore emphasises the value of self-determination, attachment actually appears to do the

significant work in the argument, in distinction to – and arguably in opposition to – any broader claims

based on national self-determination (on which I cast doubt in this section). Furthermore, it is striking

that the key examples Moore produces of communal connection to specific resources actually

undermine rather than underpin claims to control on the part of nation-states. Her key examples (the

Lakota Sioux, and cultural minorities in New Zealand and Papua New Guinea) are of communities

which are engaged in struggles to wrest control over resources away from the state.

David Miller, On Nationality, p. 101, p. 103.

Note, for instance, that in their influential defence of self-determination, Margalit and Raz suggest

that ‘the right to self-determination is neither absolute nor unconditional. It affects important and

diverse interests of many people…Those who may benefit from self-government cannot insist on it at

all costs. Their interests have to be considered along those of others.’ Avishai Margalit and Joseph Raz,

‘National Self-determination,’ Journal of Philosophy 87.9 (1990): 439-61, at 461.

See for instance Christian Reus-Smit, ‘Human Rights and the Social Construction of Sovereignty,’

Review of International Studies 27.4 (2001): 519-38.

See for instance Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press,

2004). For some forceful objections to the idea that the sovereignty of the state cannot be either

practically or conceptually shared across a variety of institutions, see Thomas Pogge’s discussion of

‘cosmopolitanism and sovereignty.’ Pogge, World Poverty and Human Rights (Cambridge: Polity

2002), pp. 178-81.

In the case of fisheries, there are many transnational organizations regulating fishing both inside and

outside of states’ territorial waters, including most notably the European Fisheries Control Agency, an

agency of the European Union. For an introduction to other Regional Fisheries Management

Organizations, see http://ec.europa.eu/fisheries/cfp/international/rfmo/index_en.htm. In the case of

freshwater, many decades of international cooperation has seen the widespread acceptance of a notion

of ‘limited territorial sovereignty.’ For discussions, see Nurit Kliot, Deborah Shmueli and Uri Shamir,

‘Institutions for Management of Transboundary Water Resources: their Nature, Characteristics and

Shortcomings,’ Water Policy 3 (2001): 229-255. In the case of hazardous chemicals, the most famous

example of successful transnational regulation is probably the regime for the control of

Chlorofluorocarbons (CFCs) which emerged in the late 1980s, beginning with the Montreal Protocol of

1987. For an historical account, see Peter Morrisette, ‘The Evolution of Policy Responses to

Stratospheric Ozone Depletion,’ Natural Resources Journal 29.3 (1989): 793-821.

On which see Nico Schrijver, ‘Unravelling State Sovereignty? The Controversy on the Right of

Indigenous Peoples to Permanent Sovereignty over their Natural Wealth and Resources,’ in I. Boerefijn

and J. Goldschmidt (eds 2008) Changing Perceptions of Sovereignty and Human Rights (Antwerp:

Intersentia), pp. 85-98; see also S. James Anaya and Robert Williams, ‘The Protection of Indigenous

Peoples’ Rights over Land and Natural Resources in the Inter-American Human Rights System,’

Harvard Human Rights Journal 14 (2001): 33-86.

Trans-boundary natural resources include waterways, fish, oil, gas and atmospheric resources. But

international law has developed most fully in the case of waterways. See for example Owen McIntyre,

Environmental Protection of International Watercourses under International Law (Aldershot: Ashgate,

2007). For an investigation of the (somewhat ambiguous) injunction to use such resources ‘equitably,’

see for instance G.J. Syme, B.E. Nancarrow and J.A. McCreddin, ‘Defining the Components of

Fairness in the Allocation of Water to Environmental and Human Uses,’ Journal of Environmental

Management 57.1 (1999): 51-70.

The 1972 Stockholm Declaration on the Human Environment declared a duty on the part of states to

‘adopt an integrated and coordinated approach to their development planning so as to ensure that

development is compatible with the need to protect and improve the human environment.’ See

http://www.unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503. For some

relevant key decisions in international environmental law, see Cairo Robb (ed) International

Environmental Law Reports 1: Early Decisions (Cambridge: Cambridge University Press, 1999).

Cara Nine, Global Justice and Territory, p. 43.

John Rawls, The Law of Peoples and ‘The Idea of Public Reason Revisited’ (Harvard: Harvard

University Press, 1999), p. 8; see also pp. 38-9.

Elinor Ostrom, ‘How Types of Goods and Property Rights Jointly Affect Collective Action,’ Journal

of Theoretical Politics 15.3 (2003): 239-70.

For an example of that kind of argument, see R.J. Smith, ‘Resolving the Tragedy of the Commons by

Creating Private Property Rights in Wildlife,’ CATO Journal 1 (1981): 439-68. Smith argues that ‘the

only way to avoid the tragedy of the commons is to end the common property system by creating a

system of private property rights’ in natural resources such as wildlife (at 467).

Tony Allen, Virtual Water (London: I.B. Tauris, 2011); see also Arjen Hoekstra and Ashok

Chapagain, The Globalization of Water (Oxford: Blackwell, 2009), chapter 3.

This is far from being a new conclusion. Note for instance the view that ‘the ultimate solution [for

preserving fish stocks] is to treat these resources as a giant commons managed as a trust by some

international agency such as the United Nations.’ S. V. Ciriacy-Wantrup and Richard Bishop,

‘“Common Property” as a Concept in Natural Resources Policy,’ Natural Resources Journal 15.4

(1975): 713-728.

See http://www.itto.int/. For an evaluation of the ITTO’s success to date, see Duncan Poore,

Changing Landscapes: The Development of the International Tropical Timber Organization and its

Influence on Tropical Forest Management (London: Earthscan, 2003).

For useful comparative studies, see Norman Vig and Michael Faure (eds) Green Giants?

Environmental Policies of the United States and European Union (Cambridge: MIT Press, 2004). See

also John McCormick, Environmental Policy in the European Union (Basingstoke: Palgrave

Macmillan, 2001), chapter 9.

Rawls himself suggested that poverty in developing countries is often caused precisely by poor

decision-making in a context of abundant resources. Rawls, The Law of Peoples, p. 108. It is also worth

observing that processes of state-building have frequently been accompanied by environmental

transformation, often with dramatically negative consequences for the conservation of natural resources.

For a bibliography of UN Reports on shared control over water as one example of a shared resource,

see http://www.internationalwaterlaw.org/bibliography/UN/UNILC/. For an approach to water scarcity

which focuses on the need for both local solutions (such as shared governance of particular river basins)

and a ‘global ethic’ of solidarity in sharing access to water, see Malin Falkenmark and Jan Lundqvist,

‘Towards Water Security: Political Determination and Human Adaptation Crucial,’ Natural Resources

Forum 21.1 (1998): 37-51.

It is notable that all of the examples of sound communal proprietorship over natural resources which

Ostrom cites are local rather than national; and indeed she cites many studies which suggest that the

maximum scale for effective proprietorship over some natural resources is much, much smaller than

the national level. See Ostrom, ‘Private and Common Property Rights,’ pp. 347-8. Of course, some of

these small-scale cases could also be trans-national.

See for instance the developing debate about immigration and the right to exclude; e.g. Philip Cole

and Christopher Heath Wellman, Debating the Ethics of Immigration: Is There a Right to Exclude?

(Oxford: Oxford University Press, 2011).

For a cautious note about the role that the idea of moral arbitrariness should play in global egalitarian

arguments, see Chris Armstrong, ‘National Self-determination, Global Equality and Moral

Arbitrariness,’ Journal of Political Philosophy 18.3 (2010): 313-34.

See Chris Armstrong, Justice and Natural Resources: A Global Egalitarian Theory, unpublished

manuscript.

See e.g. Schrijver, Sovereignty over Natural Resources, chapters 9-11. For a country-by-country

overview of the impact of these decisions and instruments on domestic law, see Alice Palmer and Cairo

Robb (eds 2004) International Environmental Law Reports Volume 4: International Environmental

Law in National Courts (Cambridge: Cambridge University Press).

National legislative adoption of international wildlife law after treaty ratification

Article

Full-text available

Sep 2023
CRIME LAW SOCIAL CH

David R. Goyes

Since the 1970s, the world has witnessed a proliferation of international treaties championing the protection of wildlife. The effectiveness of those treaties, which together comprise international wildlife law (IWL), depends on their national implementation by individual states rather than on their number. National implementation of IWL ranges from legislative action, to resource allocation, to individual behavioural change. Inadequate IWL implementation can facilitate and even lead to wildlife crime. Therefore, examining how countries operationalise their commitments derived from IWL is important to understand the efficacy (or lack thereof) of wildlife treaties. The main goal of this article is to investigate the dynamics by which nations internalise international wildlife commitments into state law, by using Norway as a case study. The article thus explores the social dynamics that shaped the domestic legal action that Norway undertook after its ratification of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention). The study is based on historical data documenting Norway’s legislative processes derived from the conventions and historical records of the country’s environmental conflicts. It applies Chambliss’s sociology of law perspective on conflict to interpret the material. While many globalisation scholars hold that globalisation stripped states of legislative sovereignty, this article argues that Norway’s wildlife policy is mostly dependent on clashes between national forces, rather than Norway conceding legislative powers to the international community. In other words, the tension between economic growth and ecosystem conservation determines how Norway implements IWL commitments. This article contributes to the literature on environmental regime effectiveness and the domestic impact of treaties.

A Case for the Participation in the REDD+ to Address the Natural Resources Use and Governance in Botswana

Chapter

Dec 2023

This chapter analyses the risks and trade-offs between natural resources, climate change and human rights using the case study of the San in Botswana. Botswana has a human rights obligation to address climate change, minimise its effects on natural resources and can fulfil such an obligation by participating in the REDD+ Programme of the United Nations. REDD+ Programme addresses the climate change risks that exacerbate the vulnerabilities and inequities that characterise current natural resource governance regimes. The involvement of Indigenous Peoples may aid synergies, cost-effectiveness, and effective management approaches that may serve as a springboard for the San to issue tailor made demands to their government. This chapter argues that the participation of Botswana and the involvement of the San in the REDD+ will address the sustainability of natural resources and the promotion and protection of Indigenous Peoples’ rights.

Geoengineering in a climate of uncertainty

Chapter

Nov 2015

Megan Blomfield

Achieving climate justice is increasingly recognized as one of the key problems associated with climate change, helping us to determine how good or bad the effects of climate change are, and whether any harms are fairly distributed. The numerous and complex issues which climate change involves underline the need for a normative framework that allows us both to assess the dangers that we face and to create a just distribution of the costs of action. This collection of original essays by leading scholars sheds new light on the key problems of climate justice, offering innovative treatments of a range of issues including international environmental institutions, geoengineering, carbon budgets, and the impact on future generations. It will be a valuable resource for researchers and upper-level students of ethics, environmental studies, and political philosophy.

Climate justice and territorial rights

Chapter

Nov 2015

Chris Armstrong

Introduction: climate justice

Chapter

Nov 2015

Jeremy Moss

Exporting harm

Chapter

Nov 2015

Jeremy Moss

Climate change and state consent

Chapter

Nov 2015

Thomas Christiano

Climate change: life and death

Chapter

Nov 2015

John Broome

Empathising with scepticism about climate change

Chapter

Nov 2015

Simon Keller

A just distribution of climate burdens and benefits: a luck egalitarian view

Chapter

Full-text available

Nov 2015

Kasper lippert-rasmussen

Sovereignty over Natural Resources: Balancing Rights and Duties

Book

Jul 1997

Nico Schrijver

In modern international law, permanent sovereignty over natural resources has come to entail duties as well as rights. This study analyses the evolution of permanent sovereignty from a political claim to a principle of international law, and examines its significance for a number of controversial issues such as people's rights, nationalization and environmental conservation. Although political discussion has long focused on the rights arising from permanent sovereignty, Dr Schrijver argues that this has been at the expense of the consideration of the corollary obligations it also entails. His book thus identifies directions sovereignty over natural resources has taken in an increasingly interdependent world and demonstrates its relevance to debate on foreign-investment regulation, the environment and sustainable development.

On Global Justice

Book

Dec 2012

Mathias Risse

National Responsibility and Global Justice

Book

Nov 2007

David Miller

virtual water: Tackling the Threat to Our Planet's Most Precious Resource

Book

Jan 2011

Tony Allan

Environmental Policy in the European Union

Article

Jan 2001

John McCormick

An accessible but sophisticated introduction to, and analysis of, the increasingly important role of the European Union in environmental policy. Written by a well-known authority in the field, the book ranges widely over the emergence and evolution of the EU role in this critical field of policy, the relationship between policies made at the EU and member state levels, and the nature of the environmental policy process. The book ends with in-depth studies of EU activities in key policy areas - from air quality and waste management to global warming - and sums up the successes and failures of EU policy to date.

Sovereignty over Natural Resources: Balancing Rights and Duties

Article

Jul 1998

Common property as a concept in natural resources policy

Article

Jan 1975
NAT RESOUR J

The Idea of Public Reason Revisited

Article

Jan 1999

J. Rawls

Justice and Natural Resources: An Egalitarian Theory

Book

Jun 2017

Chris Armstrong

Our world is increasingly marked by climate change, environmental degradation, and conflict over precious resources such as oil, water, and land. In each case, access to valuable resources is at stake. We require a normative account of how access to the benefits and burdens natural resources provide ought to be shared. But to date we have no comprehensive account of the demands of justice when it comes to natural resources. Justice and Natural Resources provides a systematic account of how to think about natural resources, the conflicting claims people have over them, and the implications of this account. The volume criticises the status quo in world politics, according to which resources themselves, and decisions about how to use them, are the preserve of individual states. Instead it demonstrates that justice requires a more equal sharing of the benefits and burdens that flow from the world's resources, and shared management of many of the world's resources. Along the way it addresses important real-world questions such as the following: how should access to the resources of the oceans be shared? How good are national claims to the enormous resource wealth found in Sovereign Wealth Funds? Should we stop buying natural resources from dictators? And who should pay for conservation of valuable resources such as the world's rainforests?

Immigration and Territorial Rights

Chapter

Nov 2007

David Miller

Against “Permanent Sovereignty” over Natural Resources

Abstract

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