Published online by Cambridge University Press: 20 February 2015
This paper offers a critical appraisal of the growing body of philosophical work on questions of justice in the exploitation of natural resources. It argues that failure to treat property as a distinct set of considerations from those of distributive justice has led to an impoverished philosophical analysis. Moreover, it demonstrates how a property-based approach contributes to a more complete view of the interests at stake in resource exploitation by drawing attention to aspects of human relationships with the physical environment that cannot be captured through the allocation of wealth, such as environmental and cultural integrity. The reason that philosophers have not, by and large, appreciated this contribution rests on mistaken views about the function of property rules that could be rectified through legal understanding. In pursuing this line of argument, the paper considers a recent proposal that seems promising on this front: Leif Wenar’s analysis of the resource curse. Wenar’s proposal is unique in suggesting that questions of resource justice be analysed and resolved through settled principles of property law, rather than through a theory of distributive justice. However, he makes several key tactical errors. Examining where the proposal goes wrong and why provides important insights into the use of legal concepts to analyse intractable questions of justice in political philosophy, and into the place of property in particular—methodological issues that have not received adequate attention, despite the increasingly interdisciplinary nature of scholarship in this area.
The author would like to thank Debra Satz, Matthew Harding, Dan Halliday, and Dale Smith for their insightful comments and helpful suggestions on earlier drafts of this paper. This paper has also greatly benefitted from conversations with Jeremy Gans, Kirsty Gover, Jürgen Kurtz, and David Sloss.
1. One prominent and well-known example is Jeremy Waldron’s work on human dignity, which self-consciously takes law as a starting point, using legal concepts from international human rights law to inform philosophical debates. See Dignity, Rank, and Rights (New York: Oxford University Press, 2012). Similarly, in the human rights context, the legal status of human rights has sometimes been used to overcome certain philosophical objections about their universality. See, e.g., Charles R Beitz, “Human Rights as a Common Concern” (2001) 95 Am Pol Sci Rev 269. In the immigration context, Michael Blake has used antidiscrimination law to show why arguments for rights to freedom of association should not be given too much weight; and Ayelet Shachar and Ran Hirschl have used an analysis of the legal rules governing transfer of political membership to argue that citizenship requires greater scrutiny as a matter of global distributive justice. See Michael Blake, “Immigration, Association, and Antidiscrimination” (2012) 122 Ethics 748; Ayelet Shachar & Ran Hirschl, “Citizenship as Inherited Property” (2007) 35 Pol Theory 253.
2. Leif Wenar, “Property Rights and the Resource Curse” (2008) 36 Phil & Pub Aff 2 at 9.
3. Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974).
4. See infra note 32 and accompanying text.
5. Much of this literature takes John Rawls’ The Law of Peoples as the point of departure. Some prominent examples include: Beitz, Charles R, Political Theory and International Relations, revised ed (Princeton: Princeton University Press, 1979); Brock, Gillian, Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press, 2009); Pogge, Thomas W, World Poverty and Human Rights, 2d ed (Cambridge: Polity Press, 2008) at 202–21; Tan, Kok-Chor, Justice Without Borders: Cosmopolitanism, Nationalism, and Patriotism (Cambridge: Cambridge University Press, 2004); Risse, Mathias, On Global Justice (Princeton: Princeton University Press, 2012); Shue, Henry, Basic Rights, 2d ed (Princeton: Princeton University Press, 1996).
6. See, e.g., Joseph Mazor, “Liberal Justice, Future People, and Natural Resource Conservation” (2010) 38 Phil & Pub Aff 380. Mazor provides a novel defense of resource conservation using traditional principles of liberal political philosophy. For a survey of approaches to intergenerational resource claims, see Gosseries, Axel & Meyer, Lukas H, eds, Intergenerational Justice (Oxford: Oxford University Press, 2009).
7. Hendrix, Burke A, Ownership, Authority, and Self-Determination (University Park: Pennsylvania State University Press, 2008); Levy, Jacob T, The Multiculturalism of Fear (Oxford: Oxford University Press, 2000) at 197–221.
8. This is relatively uncommon in liberal egalitarian circles, for reasons discussed in section II below. However, “property ownership” characterizations of resource claims have been embraced by left-libertarians and by some theorists of indigenous rights. See, e.g., Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994); Hendrix, supra note 7.
9. See, e.g., Meisels, Tamar, Territorial Rights (Dordrecht: Springer, 2005); David Miller, “Territorial Rights: Concept and Justification” (2012) 60 Pol Studies 252; Miller, David, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007) at 201-30; Margaret Moore, “Natural Resources, Territorial Right, and Global Distributive Justice” (2012) 40 Pol Theory 84.
10. See, e.g., Nozick, supra note 3; Otsuka, Michael, Libertarianism Without Inequality (New York: Oxford University Press, 2005); Steiner, supra note 8.
11. Wenar, supra note 2 at 1 [emphasis added]. Although Wenar takes existing state boundaries to constitute the relevant “people” who hold the property right, I use the term “popular” as opposed to “public” or “national ownership” because, for reasons presented below, it is important to the view that property rights vest in the people rather than in the state.
12. Ibid at 9-10. He also refers to a series of UN declarations on the status of natural resources; I discuss the relevance of these in section IV below.
13. International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, art 1; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art 1.
14. Wenar only singles out Iraq and Angola as examples. However, recitations that purport to vest natural resources in public bodies are common in modern constitutions. For a comprehensive list of constitutional provisions of this kind, based on the survey of 130 constitutions worldwide, see Webber, Jeremy & Gover, Kirsty, “Proprietary Constitutionalism” in Tushnet et al, eds, Routledge Handbook of Constitutional Law (London: Routledge, 2013) 361–74 at 363, n 3.
15. Wenar, supra note 2 at 10, n 25.
16. Ibid at 16-19.
17. Ibid at 12-16.
18. Ibid at 19-20.
19. Ibid at 20-21.
20. Ibid at 21-22.
21. Ibid at 26-27.
22. Ibid at 28.
23. “An Economic Theory of the Criminal Law” (1985) 85 Colum L Rev 1193 at 1198-99.
24. Margaret Jane Radin, “Market-Inalienability” (1987) 100 Harv L Rev 1849 at 1880.
25. Wenar himself refers to “blood diamonds” when describing these practices in Sierra Leone, supra note 2 at 9.
26. This is a common objection to otherwise legal state expropriations of property, the idea being that no amount of compensation can make up for the loss of certain kinds of property (e.g., one’s home, one’s place in a particular community, etc.).
27. This is a modified example of one of Nozick’s rationales for the Proviso, supra note 3 at 180.
28. Will Kymlicka, for instance, rejects “property ownership” as a basis for indigenous land and resource claims for precisely this reason. Liberalism, Community and Culture (New York: Oxford University Press, 1989) at 158-59, n 4. Similarly, Hendrix, supra note 7 at 75, expresses some discomfort with characterizing indigenous rights in terms of property ownership, although he ultimately suggests that it is a matter that must be left up to indigenous groups to decide.
29. It would not, however, be fair to attribute this view to libertarians across the board. Many libertarians, particularly outside of philosophical circles, recognize that government enforcement of any property regime requires “forced” (i.e., non-consensual) transfers to operate effectively and, by implication, are necessarily redistributive. This includes taxes levied for external defense, law enforcement, and the provision of public goods (in the classic economic sense). See, e.g., Epstein, Richard A, Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985).
30. Jeremy Waldron, “Nozick and Locke: Filling the Space of Rights” (2005) 22 Soc Phil & Pol 81 at 82.
31. See, e.g., Fried, Barbara, “Does Nozick have a Theory of Property Rights?” in Bader, Ralf M & Meadowcroft, John, eds, The Cambridge Companion to Nozick’s Anarchy, State, and Utopia (Cambridge: Cambridge University Press, 2012) 230–52; “Left-Libertarianism: A Review Essay” (2004) 32 Phil & Pub Aff 66; “Wilt Chamberlain Revisited: Nozick’s ‘Justice in Transfer’ and the Problem of Market-Based Distribution” (1995) 24 Phil & Pub Aff 226; Murphy, Liam B & Nagel, Thomas, The Myth of Ownership: Taxes and Justice (New York: Oxford University Press, 2002).
32. See, e.g., Leif Wenar, “Original Acquisition of Private Property” (1998) 107 Mind 799 and “The Concept of Property and the Takings Clause” (1997) 97 Colum L Rev 1923.
33. Supra note 2 at 2.
34. These concerns are reflected in a series of United Nations General Assembly Resolutions on “Permanent Sovereignty Over Natural Resources” passed in the 1950s, culminating in GA Resolution 1803 in 1962, and in the 1974 Declaration on the Establishment of a New International Economic Order (NIEO). For a general overview of the history, see Andrew Newcombe, & Paradell, Lluís, Law and Practice of Investment Treaties: Standards of Treatment (Aalphen aan den Rijn, The Netherlands: Kluwer Law International, 2009) at 1–74.
35. Indeed, one reason for the split between the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as distinct covenants implementing the UN Declaration of Human Rights had to do with concerns that member states would be required to adopt a particular kind of property regime. Moreover, the “right to property” was excluded from both instruments in place of the language in art. 1, which affirms the territorial sovereignty of each member state. For a useful overview, see Rhoda E Howard-Hassmann, “Reconsidering the Right to Own Property” (2013) 12 J Hum Rts 180.
36. Today there are well-recognized limitations to this principle, particularly in the context of air rights. However, there is still a strong presumption that land ownership includes rights to surface and subsurface resources.
37. This was precisely the source of controversy over South Africa’s Mineral & Petroleum Resources Development Act, No 28 of 2002, which abolished private ownership of mineral resources, vested them in the state, and created a licensing scheme that gave priority to applications from historically marginalized groups. The scheme was ultimately challenged (unsuccessfully) as an “acquisition” of private property without just and equitable compensation pursuant to s 25(2) of the South African Constitution. See Agri South Africa v Minister for Minerals and Energy  ZACC 9.
38. Supra note 2 at 10.
39. Over 100 countries currently have some form of domestic environmental impact assessment legislation in place. For an overview of these approaches, including a survey of international instruments that incorporate environmental impact assessment, see Craik, Neil, The International Law of Environmental Impact Assessment (Cambridge: Cambridge University Press, 2008).
40. This program was established by the Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972. There are currently 190 states that have ratified the convention, and the World Heritage properties list includes 1007 sites worldwide. See online: UNESCO World Heritage Centre http://whc.unesco.org/.
41. Supra note 2 at 9.
42. Ibid at 21.
43. Ibid at 22.
44. Wenar invokes the notion of rights as “side constraints,” which supports this reading of the view. Ibid at 32, citing Nozick, supra note 3.
45. See, e.g., Nozick, supra note 3 at 30-35, 48-51, 172; Cohen, GA, Self-Ownership, Freedom, and Equality (Cambridge: Cambridge University Press, 1995) at 144–64.
46. Wenar mentions that civil lawsuits are possible, supra note 2 at 25-26. However, they are not the focal point of his discussion.
47. This principle has its origins in an ancient Roman law maxim, which was later adopted in England under the Magna Charta. Today it can be found in a variety of civil law and common law jurisdictions; the most active take-up has been in the United States, where it is known as the “public trust doctrine.” See, e.g., California Real Estate Digest, 3d ed (Eagan, MN: Thomson Reuters, 2008) “Public Lands,” s 39.
48. Supra note 2 at 10.
49. Ibid at 10.
50. Presumably, given his focus on the criminal law, this compensation is typically in the form of a fine or restitution paid to a public authority. For, unlike prosecutions, there is no possibility of private collection: only public authorities can punish criminal wrongdoers. To simplify things, however, I shall assume that this doesn’t raise any special problems, and that criminal fines are interchangeable with civil damages. I have also not separately considered the issue of whether differences between restitution (damages aimed at correcting for unjust enrichment) or compensation (damages aimed at making the injured party whole) figure into the account, since Wenar himself does not make anything of this distinction.
51. Market value forms the baseline for compensation. While compensation for other losses such as opportunity costs is available in some circumstances, it is unusual to compensate for losses associated with the subjective valuation of a particular good, particularly in absence of an enforceable agreement reflecting that valuation. See, e.g., Restatement (Third) of Restitution, s 49, comment f (2011).
52. Conceptually, this can be traced to Calabresi and Melamed’s well-known distinction between “property rules” and “liability rules.” Guido Calabresi & A Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv L Rev 1089.
53. It is incomplete because the loss has an objective valuation (i.e., it is set by a standard, such a market value, that is determined by courts), and it could be the case that performing the injurious act and paying for the injury is more valuable to the transgressor than not acting.
54. It should be observed that in criminal law there are limitations on injunctive relief that apply in virtue of criminal law’s punitive nature. This observation further suggests that a focus on property crimes is misguided.
55. Supra note 2 at 11.
56. Ibid at 11.
57. It is worth noting on this front that the Supreme Court of Canada has recently made its first formal declaration of Aboriginal title, arising out of a long-standing dispute involving British Columbia’s grant of a commercial logging license on lands traditionally occupied by a band of the Tsilhqot’in. See Tsilhqot’in Nation v British Columbia, 2014 SCC 44.
58. For instance, he emphasizes that: “[t]here need not be a ‘resource rights’ revolution to follow the human rights revolution,” that “citizens need not be involved in, or even aware of, the management of natural resources” and that his account “forbids only flagrant injustice.” Supra note 2 at 15, 11-12.
59. Wenar even expresses some ambivalence on this point. For instance, he notes that the United States has banned energy companies from trading with Sudan since 1997 based on Sudan’s poor human rights record. He then explains that “[t]he property-based approach here would only add that American energy companies should be barred from trading with the Sudanese government specifically because this regime is violating the human rights that are property rights.” Ibid at 27 [emphasis added].
60. See references in supra note 31.