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Journal ArticleDOI

Beyond the National Resource Privilege: towards an International Court of the Environment

06 Mar 2014-International Theory (Cambridge University Press)-Vol. 6, Iss: 1, pp 68-97
TL;DR: In this article, the authors sketch the contours of an alternative resource governance scheme built around the idea of an International Court of the Environment and show that states do not require full control over all resources found in their territory in order to be sovereign.
Abstract: The national resource privilege, which holds that states are allowed to control all the natural resources found in their territory, is a cornerstone of international politics. Supporters of the national resource privilege claim that without the privilege states would fail to be sovereign and self-determining entities which provide for the needs of their citizens. However, as this paper shows the case is not as simple as that. In fact, control over resources must be carefully unpacked. Doing so shows that states do not require full control over all resources found in their territory in order to be sovereign. Moreover, sovereignty and self-determination come with a set of responsibilities and duties attached. Based on these observations the paper will sketch the contours of an alternative resource governance scheme built around the idea of an International Court of the Environment.

Summary (2 min read)

Introduction

  • Beyond the National Resource Privilege: towards an International Court of the Environment Schuppert, F. (2014).
  • Beyond the National Resource Privilege: towards an International Court of the Environment.

Introductory Remarks

  • In times of increasing resource scarcity, environmental degeneration and mass abject poverty, control over natural resources is the subject of heated debate within political, economic and academic circles.
  • In international law, control over natural resources has traditionally been understood as the privilege of sovereign states.i.
  • As surprising as it might sound, Pogge and Wenar both do not challenge the idea that natural resources should be controlled by the states in whose territory they are found.
  • This rather extreme position focuses on the global extension of distributive egalitarianism but it comes with a range of problems regarding both its normative validity (Armstrong n.d.) and its overly idealist methodology (Ratner 2013: 20).vii.

I. Analyzing Control over Natural Resources

  • As already noted in the introduction, since the Rio Declaration in 1992 one can observe in international politics a certain tension between different principles, as on the one hand environmental and developmental responsibilities seem to play an increasingly important role, while on the other hand the doctrine of permanent sovereignty over natural resources still seems to ride strong.
  • In practice this potential is far from being realized.
  • But the fact that the national resource privilege, in its current shape and form, seems to have contributed to these grave problems should be considered sufficient cause to at least critically investigate the normative justification of the national resource privilege and look for possible alternatives.

II. Sovereignty, Self-Determination and Resource Rights

  • That is to say, some rights might indeed (at least to a certain extent) be necessary for a state's sovereignty and selfdetermination, while others might (at least to a certain extent) not.
  • Both these reasons suggest that based on the requirements of being a functioning sovereign state which respects the rights and interests of both members and nonmembers the authors can conclude that, despite the oil's importance for the Saudi economy, full and exclusive control over all Saudi oil reserves by the Saudi state cannot be justified.

III. Beyond the Resource Privilege

  • If the arguments in the last section are correct, the national resource privilege - as it stands now - cannot be normatively justified on the functionalist argument from state sovereignty and self-determination.
  • Xxi Before I sketch a possible natural resource governance system beyond the national resource privilege, let me briefly consider two existing proposals for addressing the empirically observable flaws of the current system, i.e. unsustainable resource use and social and global injustice.
  • A further problem with the ICJ is also that most states do not see it as an environmental court and some states, such as Poland, even refuse to accept the ICJ’s claim to environmental jurisdiction.
  • Considering then that the ICJ does indeed not seem suitable to act as an international court of the environment, the question is whether the establishment of an ICE is a) at all feasible and b) if it is feasible, how an ICE can advance justice and sustainability, as well as challenge the national resource privilege.

Conclusion

  • The paper started by looking at the current system of natural resource governance, highlighting a set of issues with the existing national resource privilege.
  • The paper then critically analyzed existing functionalist justifications for the resource privilege, namely those which claim that control over all natural resources within a given territory is necessary for the sovereignty and self-determination of the state in question.
  • The analysis not only showed that control over resources is a divisible set of rights, but also that the resource privilege in its current form is not a necessary requirement for states' self-determination and sovereignty.
  • Based on these findings the last section sketched some possible institutional arrangements for an alternative resource governance system, suggesting the establishment of an IEC, in an attempt to use the normative potential of existing international environmental law for greening global politics.

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Beyond the National Resource Privilege: towards an International
Court of the Environment
Schuppert, F. (2014). Beyond the National Resource Privilege: towards an International Court of the
Environment.
International Theory
,
6
(1), 68-97. https://doi.org/10.1017/S1752971913000262
Published in:
International Theory
Document Version:
Peer reviewed version
Queen's University Belfast - Research Portal:
Link to publication record in Queen's University Belfast Research Portal
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Download date:10. Aug. 2022

1
Beyond the National Resource Privilege: Towards an International
Court of the Environment
Fabian Schuppert, Institute for Collaborative Research in the Humanities, Queen’s
University Belfast, Northern Ireland
Paper forthcoming in International Theory
Introductory Remarks
In times of increasing resource scarcity, environmental degeneration and mass abject
poverty, control over natural resources is the subject of heated debate within political,
economic and academic circles. In international law, control over natural resources has
traditionally been understood as the privilege of sovereign states.
i
This national
resource privilege was enshrined in international politics in the 1962 United Nations
(UN) Resolution on Permanent Sovereignty over Natural Resources, which states that
'the rights of peoples and nations to permanent sovereignty over their natural wealth
and resources must be exercised in the interest of their national development and of the
well-being of the People of the State concerned.' As Robyn Eckersley (2007: 308)
observes, 'this principle had originally been formulated as a human right belonging to
peoples or nations that had been subjected to colonial rule to freely dispose of their
natural wealth, [but] since the 1972 Stockholm Conference on the Human Environment
it is more typically formulated as a right belonging to sovereign states [sic.].'
The problem is that our current inability to combat climate change and
environmental degeneration effectively, as well as the coming into existence of both
these issues, seem to be at least partially connected to the fact that states enjoy
sovereign control over their natural resources, which has often lead to wasteful and
unsustainable management and use practices. While on the political level the 1992 Rio
Declaration rhetorically somewhat weakened the national resource privilege by
stressing every state's developmental and environmental responsibility towards present
and future generations, the 1992 UN Convention on Biological Diversity again explicitly
'reaffirms that states have sovereign rights over their biological resources'. Thus, even
though there has been a huge amount of multilateral agreements on environmental
issues, the truth is that states' sovereignty over their natural resources can only be
weakened if states voluntarily agree to become part of agreements which curtail their

2
powers.
ii
However, partially as a result of the vast amount of international
environmental agreements international environmental law does offer several ways to
restrict particular resource uses.
iii
What is striking when looking at the academic debate, though, is that within
normative political theory the national resource privilege is rarely challenged.
iv
When it
comes to control over natural resources normative philosophy has been for the most
part awfully quiet. Notable exceptions are Thomas Pogge’s (1994; 2008) and Leif
Wenar’s (2008) works, which have highlighted some of the unjust and unequal effects of
current resource management regimes. However, as surprising as it might sound, Pogge
and Wenar both do not challenge the idea that natural resources should be controlled by
the states in whose territory they are found. As Pogge (1994: 200-201) puts it:
Nations (or persons) may appropriate and use resources, but humankind at large
still retains a kind of minority stake, which, somewhat like preferred stock,
confers no control, but a share of the material benefits... One may use unlimited
amounts, but one must share some of the economic benefit.
Similarly, Wenar cites the 1966 UN International Covenant on Civil and Political Rights
which claims that 'all peoples may, for their own ends, freely dispose of their natural
wealth and resources' and he goes on to claim that the stated principle is 'so intuitive
that most will need no more proof than its statement' (Wenar, 2008: 10). Since Pogge is
mainly concerned with the distribution of the benefits of resource use while Wenar
wants to make sure that all members of a People get a say in what happens to their
nation's natural resources, both do not question the national resource privilege as such.
v
The only group of philosophers which has repeatedly questioned the resource
privilege are cosmopolitan liberal egalitarians like Charles Beitz (1979), Brian Barry
(1982) and Paula Casal (2011) who argue that since all human beings are morally equal
and the distribution of natural resources from a moral point of view arbitrary all people
should have an equal claim to an equal share of the world’s natural resources.
vi
This
rather extreme position focuses on the global extension of distributive egalitarianism
but it comes with a range of problems regarding both its normative validity (Armstrong
n.d.) and its overly idealist methodology (Ratner 2013: 20).
vii
Apart from these two groups, within current normative political theory only the
literature on territorial rights deals with the issue of control over natural resources
(Miller, 2012; Nine, 2008; 2012; Moore 2012; Kolers, 2009; 2012; Meisels, 2005).
However, philosophers who focus on territorial rights tend to assume that resource

3
rights are necessarily connected to territorial rights, meaning that also within the
literature on territorial rights the national resource privilege and its normative
justification are hardly ever challenged. In fact, even though philosophers writing on
territorial rights admit that the link between territorial rights and resource rights might
merit further investigation (Miller 2012: 254; Stilz 2011: 573), their basic assumption is
that resource rights follow from territorial rights and that the justification of control
over natural resources will therefore use the same (or very similar) arguments as the
argument for territorial rights.
The aim of this paper is to critically challenge a particularly common set of
arguments for the national resource privilege, namely those which justify the privilege
with reference to territorial sovereignty and collective self-determination as part of a
functionalist account of state legitimacy.
viii
In so doing, the paper wants to sharpen our
understanding of resource rights and hint at the possibility of an alternative system for
natural resource governance. Overall, the paper tries to show that full control over
natural resources is not as strongly connected to sovereignty and self-determination as
some might think, and that the functionalist argument for control over natural resources
actually supports a radically different resource governance scheme. However, such a
radically different governance scheme appears (unfortunately) rather utopian and
unrealistic. Based on this observation, the paper then sets out an alternative approach to
the governance of natural resources, which aims at reconciling the realities of living in a
world of sovereign states bound by international law with the ethical aspirations of
normative theories of global and intergenerational justice.
ix
I. Analyzing Control over Natural Resources
As already noted in the introduction, since the Rio Declaration in 1992 one can observe
in international politics a certain tension between different principles, as on the one
hand environmental and developmental responsibilities seem to play an increasingly
important role, while on the other hand the doctrine of permanent sovereignty over
natural resources still seems to ride strong.
The UN Convention on Biological Diversity offers a paradigmatic case. The
preamble of the convention starts by stating that the contracting parties are
conscious of the intrinsic value of biological diversity (…) [and] conscious also of
the importance of biological diversity … for maintaining life sustaining systems of
the biosphere, [thus] affirming that the conservation of biological diversity is a
common concern for humanity.

4
However, this impressive statement is directly followed by the reaffirmation of the
principle that 'states have sovereign rights over their biological resources.' Moreover,
the general principle of the convention claims that 'states have … the sovereign right to
exploit their own resources pursuant to their own environmental policies', though this
statement is again directly followed by pointing out every state's 'responsibility to
ensure that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national jurisdiction.' This
structure, which fails to give priority to either part of the principle, leads to tension
between the ideas of sovereignty over natural resources and responsibility towards
others.
Looking at the Rio Declaration and its succeeding conventions, one cannot help
but notice that these international agreements offer significant potential for providing
the framework of a more sustainable and just environmental governance regime.
However, in practice this potential is far from being realized. One of the reasons for this
discrepancy between the rhetoric of international agreements and their normative
potential on the one side, and the political and economic reality of natural resource
administration on the other side, is the important role sovereign state control plays in
the current trade system and international relations more generally. As Georg Sorensen
(2004) puts it, state sovereignty and collective self-determination are the rules of the
game of current international relations, which are arranged in such a way that all
sovereign states have good reason to participate in the existing game (making it thus
self-perpetuating), since all states benefit from their supposed right to sovereignty and
self-determination. This implies that any alternative scheme for natural resource
governance must not only respect sovereignty and self-determination on some level
(since it would be naïve to assume that states are willing to part with their privileges),
but also offer significant incentives for participating in the alternative scheme.
x
However, despite the crucial importance of sovereign state control for the
existing system, there exist certain limits to the concept of sovereignty. In fact, it would
be a grave mistake to assume that state sovereignty is an absolute concept, which
virtually allows states to do whatever they want. Both in practice and in normative
theory sovereignty is understood to be limited by the demands of people's universal
human rights, meaning that the principles of territorial sovereignty and self-
determination/non-intervention are (or at least can be) suspended if a state commits

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"Beyond the National Resource Privil..." refers background in this paper

  • ...As the work of Ostrom (1990, 2000) shows, private ownership and state control are by no means always the best way to govern resources sustainably, which means the functionalist argument would hold only for those cases and resources for which it can be shown that state control is indeed the best way…...

    [...]

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09 Apr 1999-Science
TL;DR: New insights about the management of large-scale resources that depend on international cooperation and the conditions most likely to favor sustainable uses of common-pool resources are discussed.
Abstract: In a seminal paper, Garrett Hardin argued in 1968 that users of a commons are caught in an inevitable process that leads to the destruction of the resources on which they depend. This article discusses new insights about such problems and the conditions most likely to favor sustainable uses of common-pool resources. Some of the most difficult challenges concern the management of large-scale resources that depend on international cooperation, such as fresh water in international basins or large marine ecosystems. Institutional diversity may be as important as biological diversity for our long-term survival.

2,463 citations

Journal ArticleDOI
TL;DR: In this paper, a conceptual schema for arraying property-rights regimes that distinguishes among diverse bundles of rights ranging from authorized user, to claimant, to proprietor, and to owner is developed.
Abstract: The term "common-property resource" is an example of a term repeatedly used to refer to property owned by a government or by no one. It is also used for property owned by a community of resource users. Such usage leads to confusion in scientific study and policy analysis. In this paper we develop a conceptual schema for arraying property-rights regimes that distinguishes among diverse bundles of rights ranging from authorized user, to claimant, to proprietor, and to owner. We apply this conceptual schema to analyze findings from a variety of empirical settings including the Maine lobster industry.

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"Beyond the National Resource Privil..." refers methods in this paper

  • ...Following the work of Elinor Ostrom (2000, 339; Schlager and Ostrom 1992, 250), it is possible to differentiate between at least five different kinds of resource rights, namely, the right to access (i.e. the right to enter a resource/area and enjoy nonsubtractive benefits), the right to withdrawal…...

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TL;DR: The sense of privacy itself, of the area of personal relationships as something sacred in its own right, derives from a conception of freedom which, for all its religious roots, is scarcely older, in its developed state, than the Renaissance or the Reformation as discussed by the authors.
Abstract: 'Freedom for the pike is death for the minnows'; the liberty of some must depend on the restraint of others. Freedom for an Oxford don, others have been known to add, is a very different thing from freedom for an Egyptian peasant. The sense of privacy itself, of the area of personal relationships as something sacred in its own right, derives from a conception of freedom which, for all its religious roots, is scarcely older, in its developed state, than the Renaissance or the Reformation. The perils of using organic metaphors to justify the coercion of some men by others in order to raise them to a 'higher' level of freedom have often been pointed out. The most eloquent of all defenders of freedom and privacy, Benjamin Constant, who had not forgotten the Jacobin dictatorship, declared that at the very least the liberty of religion, opinion, expression, property must be guaranteed against arbitrary invasion.

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"Beyond the National Resource Privil..." refers background in this paper

  • ...Q6 Please check references (Armstrong (2010); Berlin (1958); Gross (1948); Krasner (1999); Miller (2008); Ostrom et al....

    [...]

Frequently Asked Questions (14)
Q1. What are the contributions mentioned in the paper "Beyond the national resource privilege: towards an international court of the environment" ?

In this paper, it was shown that control over resources is a divisible set of rights, and that the resource privilege in its current form is not a necessary requirement for states ' self-determination and sovereignty. 

What is also needed is a general greening of international politics and law, as well as a strengthening of key norms, such as accountability, legitimacy, transparency and civil society participation. 

In terms of resource access and resource allocation weakening the resourceprivilege through the establishment of an ICE is only part of the solution. 

Part of the reason for this lack of engagement with environmental problems is that resource use and management are taken to be internal affairs of sovereign states. 

In an age of growing securitization, principles like no harm, precaution and sustainable use are potentially powerful tools for changing the international dynamics of resourcegovernance. 

As McCallion and Sharma (2000: 358) argue one of the main accomplishments of an ICE could be to turn soft law principles and customary norms into established customary law. 

As long as Saudi Arabia controls as much oil as it does right now, basically without any effective monitoring, many people in the world are utterly dependent on Saudi Arabia actually selling its oil for a reasonable price. 

by applying principles such asno harm and precaution the ICE can make an important contribution to defining the environmental responsibilities and conditions of state sovereignty. 

for Saudi Arabia to be free from domination and arbitrary outsideinterference it certainly would be good enough if Saudi Arabia had control over less than 100% of its oil reserves, as long as the part of the reserves not under Saudi control is not controlled unilaterally by a powerful rival state. 

Even though the fate of the local population certainly matters, since anyalternative resource administration scheme would have to make sure that people are able to meet their needs and can make a living, the example of Lac de Sénin shows clearly that having the right to access to all the resources found in its territory is not a necessary condition for securing Switzerland's sovereignty and self-determination. 

partially as a result of the vast amount of international environmental agreements international environmental law does offer several ways to restrict particular resource uses.iiiWhat is striking when looking at the academic debate, though, is that withinnormative political theory the national resource privilege is rarely challenged.iv 

The national resource privilege seems problematic for at least two sets ofreasons: first, in terms of the normative justification of the resource privilege as a necessary aspect of a state’s right to sovereignty and self-determination; second, with regard to the resource privilege’s contributing role in bringing about an international resource governance system which in many ways appears unjust and unsustainable. 

the problem especially with Rest’s call for an ICE is that it is overly ambitious, since Rest (1994: 173-174) argues that an ICE should have criminal jurisdiction to prosecute individuals for crimes against the environment, as well as the right to start investigations and proceedings on its own motion (Rest 1999: 37). 

While both sets of proposals make a range of interesting points they ultimatelynot only leave the resource privilege basically untouched, but they also struggle to meet (on their own) the demands of justice and environmental sustainability.