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Any adequate position on allocating rights over natural resources will recognise that as well as the general claims we have over them (simply as human beings), there are also often special claims, based on the ways in which we have improved them, perhaps, or become attached to specific resources. The question is how to integrate these general and special claims in a compelling account of resource justice – a challenge that some theories of global justice appear to neglect. Avery Kolers, in this journal, has recently presented a complex and in many ways persuasive account of resource justice which takes this challenge seriously. But this response suggests that his position actually places too much weight on special claims, in entirely removing questions about the distribution of some resources from the table once we have determined the existence of such claims. Using the example of fresh water, it shows how his position has unwelcome implications. Although a complex account of resource justice is desirable, Kolers' account does not yet quite deliver on that challenge.
Natural resources have attracted considerable attention within debates on global justice, but it should be clear that any satisfactory approach to allocating resource rights will be a complex one. In considering a just distribution of rights over resources we are obliged to accommodate both general and special claims. Here general claims are claims that hold for all of us, given the importance of resources to human well-being. Humans need certain specific resources (such as fresh water, air or sunlight). More expansively they might, according to many prominent accounts of global justice, be entitled to either an equal share of the total value of the world's natural resources (Barry, 1982; Steiner, 2005) or a share sufficient to meet their basic rights and avoid severe poverty (Pogge, 2002).
But we should also recognise the significance of special claims, which are likely to be particular in two senses. They will be particular in the sense that only some people hold such claims; and they will also be particular in the sense that they are claims over specific resources, and not to some undifferentiated category of ‘resources’ or ‘resource values’ (indeed the same resources may be subject to competing special claims arising from more than one party, which further sharpens the theoretical challenge). An adequate answer to the question, who should enjoy rights over natural resources?, will acknowledge and respond to special claims based on (legitimate) attachment. It will similarly acknowledge and respond to special claims based on the (legitimate) improvement of resources. It will seek to balance these with the general claims of outsiders – those currently deprived of the ability to access and use specific resources, but whose human rights or other interests might be served better if they could benefit from them. General claims based on the idea of common ownership, for instance, might plausibly constrain the way that people can derive special claims over natural resources (see, e.g., Risse, 2012); but the force of special claims might also condition or constrain the way in which we deliver on general claims.
Up until very recently, political theorists had not made great progress in providing such a complex account, and it is a very welcome development that issues of rights over natural resources are now receiving greater and more sophisticated attention. One response to questions of natural resources and justice has been to declare the distribution of natural resources ‘morally arbitrary’, and to conclude from this that any advantage a particular party derives from their (unequal) share of resources must be an unjust one (Barry, 1982; Beitz, 1979). By contrast, we should somehow redistribute either resources themselves, or their value, to ameliorate inequalities in access to resources. That is a powerful position, framed by what is itself a powerful intuition about arbitrariness, but it is not a complete account. While it scores well in responding to the general claims of outsiders, it tends to disregard any special claims based on attachment or improvement. But the fact is, particular agents may have engaged with resources – at least sometimes legitimately, we can presume – in such a way as to invest those resources with greater value than they would otherwise have had. Even if the initial distribution of natural resources is morally arbitrary in one sense, this does not imply that the present value of particular resources is therefore also wholly arbitrary. To leap from one to the other would be a good example of the notion of moral arbitrariness leading us astray if we allow it to do too much work, too easily, within a theory of global justice (see Armstrong, 2010).
At the other extreme, we have an alternative position – more or less neatly encapsulated for us by the status quo in world politics, and largely endorsed by international law – which reserves more or less exclusive resource rights for the nation states in which specific resources happen to lie (see Schrijver, 1997). This rights regime is able to respond to special claims based on attachment and improvement, but it does so with the subtlety of a sledgehammer. It grants all resource rights – with very few exceptions, largely themselves the result of voluntary treaty making – to individual nation states. If we believe that nations or states have special claims on ‘their’ resources (for a sceptical view see Armstrong, 2012b) this regime will serve those claims well, though it will often do so at the expense of any special claims that indigenous groups or national minorities might have, and in practice it has proven compatible with national elites enriching themselves with resource rents, at the expense of their citizens (Wenar, 2008). But it certainly performs poorly by any sane standards of conservation, pays scant regard to issues of intergenerational justice and simply disregards the general claims of outsiders.
There must be some viable middle path here, which takes general claims seriously, while at the same time responding to the legitimate special claims that members of particular communities might have to continue to access and use specific resources. I attempt to provide such an account elsewhere (Armstrong, 2012a), but it is very welcome that others have also taken up the challenge. Avery Kolers' recent contribution to this journal provides a sophisticated response to the central challenge I have identified, seeking to avoid the excesses of an untrammelled global egalitarianism with regard to resources on the one hand, and a resolutely ‘Westphalian’ system of nation state control on the other (Kolers, 2012). In what follows I will show that his attempt to plot a middle course goes astray. But the fact that we have such a rich account of resource justice to discuss in the first place is to be greatly applauded.
Kolers' intervention is premised on the idea that there is an unhelpful division between ‘self-determinist’ and ‘cosmopolitan’ views on natural resources, which we need to defuse in order to produce a more satisfactory account. He provides a stern warning of the risks associated with some ‘cosmopolitan’ approaches. For Kolers, many approaches to global justice are unable or unwilling to accommodate the particularity of some resources, and the very specific role they play within the lives of certain communities (Kolers, 2012, p. 271). But Kolers suspects that once we take the particular value that resources can have seriously, we have to be sceptical about the potential for developing some kind of global metric according to which we could definitively say that resource holdings were equal. In the search for such a metric, Kolers believes, all too often we either neglect the particular value of resources, or treat the attachments communities might develop over them as some kind of ‘expensive taste’ of which the community in question ought to bear the cost (see also Kolers, 2009).
Kolers convincingly shows that in order to produce an adequate account of justice and resources, we need to take seriously the diverse ways in which resources can be valuable. These are not reducible to the simply economic-instrumental. The same resource can be valued in quite different ways by different agents, and these divergent valuations generate competing prima facie claims to be granted resource rights of some kind. But just how do we balance, or adjudicate between, these competing claims? Significantly, Kolers wants to say that some ways of living with one's ‘own’ resources are weighty enough to override other claims to control them, so that those resources can be rightly controlled entirely by the particular communities which enjoy that relationship with them.
On this account, once we recognise the right kind of relationship between a community and a resource, we can then entirely remove questions about the just distribution of that resource or its value from the table – no matter whether or not there are strong countervailing interests at stake. Kolers believes that in accepting these overriding special claims, we are in effect accepting that those communities are entitled to say that this is not a resource. A good is not to be considered as a natural resource, under the purview of theories of distributive justice, whenever the local community does not treat the good in question – oil, or fish or trees, say – as a mere substitutable economic good to be traded for money (Kolers, 2012, p. 279). This will be the case whenever those goods are not considered (by that community) to be substitutable either across types or across tokens – that is, when a resource could not be substituted, without loss, with another resource of the same type, or indeed with a resource of a different type. In such cases a claim over a resource will not gain its force from the intensive use or improvement of that resource (as on the famous Lockean account, for example), but is more likely to reside in the non-intensive use of a resource. Where a resource is being used non-intensively – and not treated simply as an economic asset to be sold on open markets – this is likely to indicate a depth of attachment to it that supersedes merely economic uses. The arising special claims are therefore extremely weighty. Kolers believes that in accepting these special claims, to repeat, we are deciding that the goods in question are not natural resources, and because this is so they ought not even to figure in the global justice advocate's calculation of a just distribution (Kolers, 2012, p. 280).
But this move – which seeks to protect special claims not by defending them at the bar of justice but by defining their objects as inappropriate distribuenda – is unwarranted. There are many goods that theorists of justice have good reason to protect from the ingress of market principles which treat them as mere commodities to be sold to the highest bidder. When this is the case – as with education, or health care – we typically show how individuals have justice claims on them which should at least sometimes be met regardless of ability to pay. We provide an argument about justice which acknowledges that there are competing criteria for allocating those goods, and which suggests how they ought to be held in balance. Kolers' account, by contrast, effectively stipulates that attachment provides an ineliminable side-constraint on any just distribution, and as such it generates unwelcome conclusions. We can illustrate that by considering the example of a crucial natural resource – fresh water.
Imagine two neighbouring countries. One is densely populated and poor, with very limited water availability. The other is rich and sparsely populated, and has a very large freshwater lake which provides far, far more water than it could ever use. It does use that water, but non-intensively. It fishes from that water, or sails on it, or drinks from it in moderation, but it does not sell that water on global markets. It is not especially attached to that particular water, but there is no other substance that it could sail on or fish from instead, and so in Kolers' terms water is here being treated in a way which denotes that it is substitutable across tokens but not across types. Now the rich country could divert some of the water from the lake to its water-scarce neighbour, but it chooses not to. Kolers' account appears to tell us that there can be no question of its having a duty of justice to do so. But if so his account runs awry in several distinct ways.
First, Kolers' account seems driven simply to stipulate that water is not a natural resource in the first place, and hence that there can be no question of redistributing it or of granting any force to external claims to it. It will not be seen as a resource, on his account, because it is not ‘type-fungible’. That is, so far as the community controlling it is concerned, there is no other type of resource that could serve as a replacement for it (Kolers, 2012, p. 278). This appears wrongheaded on two counts. On the one hand, it is not obvious why the fact that water is not substitutable across types should grant a claim over this particular water: water that the community, in our example, is not attached to in particular. The premise of non-substitutability across types does not appear sufficient to justify the conclusion of a claim to continued control over this water; some other argument, at least, would be necessary to bolster that conclusion. On the other hand, while the fact that water is not substitutable for any other substance might be normatively significant, surely it is also relevant that water is a non-type-substitutable source of well-being for all human beings. As humans we all need water, and exactly water, if we are to survive. There may be nothing distinctive, then, about our rich community's desire for continued access to water. In fact it is because we all need fresh water, uniquely and non-type-substitutably, that there are such important questions to be asked about how to distribute access to it, and indeed that it may make sense to specify a human right to it (see, e.g., Gleick, 1998). But then ruling out any external claim on water appears especially egregious. My first challenge to Kolers, then, is this: that whereas non-substitutability across tokens may serve to ground a special claim, it is not clear why non-substitutability across types does so too. Non-substitutability across types may instead point to a general need for a given resource, which makes discussion of the justice of its distribution important rather than, as Kolers has it, impermissible.
Second, Kolers' account looks to make the ‘cut’ between good and bad resource claims in the wrong place. It tells us that our hypothetical rich country ought to control the water because it does not use it intensively – that is, it does not substantially exploit it economically, or treat it as a mere fungible good to be traded for money. But morally, this does not appear to be the only – or perhaps even the most – salient fact. The lack of intensive use, after all, might signal a complete lack of interest. Presumably in Kolers' account it is meant to stand in for the existence of some kind of special relationship, whereby communities develop key projects that depend on secure access to particular resources. But if so, using intensity of use as a proxy for such relationships is a very blunt theoretical instrument, because it is not clear why we should expect intensity of use to track reliably depth of attachment or integration into important projects. Kolers himself has elsewhere unpacked a much more sophisticated ‘attachment'-based account focusing on what he calls ‘resilience’ and ‘plentitude’ as criteria for granting territorial rights (Kolers, 2009), so it may well be that that account and the one under discussion can somehow be squared. But there is certainly work to do in showing just how they fit together. This, then, is my second challenge: that if attachment to resources is what matters, non-intensive use is a poor proxy for such attachment. Non-intensive use (or the fact that resources are not being sold on markets as commodities) ought not, by itself, ground special resource claims.
Third, the account delivers the wrong type of conclusion. It tells us that where there is a good claim based on non-intensive use, we declare a good a non-resource and remove from the table any questions about how to share access to it. That good becomes, in Kolers' words, ‘immune to resource justice considerations’ (Kolers, 2012, p. 282). But this is so strong – especially in the face of possibly urgent claims from outsiders, whose basic human rights might be threatened, for instance – that I wonder if it can be what Kolers intends. There are good reasons for preferring a more nuanced account: imagine a chemical substance that is found to be present in a particular tree bark, which a particular community uses non-intensively but which turns out to have the potential to immunise effectively against malaria. It would then be implausibly strong to say that the existence of other general claims over this good simply become irrelevant once we have identified that it is being used non-intensively at present. A more plausible account, in my view, would seek to balance the different claims over resources, and endorse special claims only where there is a sufficiently weighty interest in retaining control over particular goods – which does not infringe upon the basic rights of others, or deny them the objects of their basic rights – and not simply where we identify the mere existence of a certain kind of claim which immediately trumps other claims. Deciding on such cases will still be very difficult. But we can be helped here if we are prepared to explore more complex ways of sharing rights over resources (which could see access and use, for instance, being shared while respecting any significant symbolic attachments; see Armstrong, 2012a). If we shift the question from who should control resources? to how should we allocate the various kinds of rights over resources?, then more complex accommodations are possible which can pay due heed to the many interests at stake in their use.
So Kolers is right, certainly, that indigenous communities often see their way of conceiving of and valuing resources ‘outbid’ by dominant majority populations, and he has done invaluable work in highlighting the ways in which some accounts of global justice actually threaten to endorse that fact. But it is not clear that the correct response to this is to erect a division between resources and non-resources, and to refuse to apply standards of justice to the latter. On Kolers' account, a statement of this kind: ‘the natural resources of the Saami tribespeople are their rightful property, and should be reserved for their own sustainable use’, has to be seen as literally unintelligible, a contradiction in terms. For in merely describing something as a resource we are held to take the attitude that it is a mere commodity, on this earth solely for economic exploitation, and that the (purely economic and instrumental) claims of outsiders must take priority over any local claims. But that is false: recognising a resource's usefulness to others is compatible with recognising – and, when appropriate, defending – its special significance to some people in particular. Moreover, Kolers' positive position risks moving us to the other extreme of voiding any external claims over resources by removing questions about the justice of their distribution from the table. Although the task is not easy, it should be possible to take special claims over resources seriously without removing them from the terrain of justice altogether. My third and final challenge to Kolers, then, is this: that his account errs by removing the objects of special claims from the demands of distributive justice both by defining them as non-resources and by using that stipulation to void general claims. An adequate account of resource rights must use arguments about justice to establish just when and why special claims trump general claims, rather than using the identification of special claims to end the conversation about justice.
Perhaps, though, Kolers might reformulate his argument such that it generates roughly the same conclusions from less objectionable premises. Perhaps we ought to say that once we identify that a resource is being used non-intensively, and represents a non-substitutable source of value for the community in question, there are grounds of justice to overrule countervailing general claims. We could then step back from the claim(s) that such resources are not then resources, or that they do not fall under the purview of a theory of justice. We might instead say that such resources would then be seen as so central to the life plans of members of those communities that any countervailing claims over them must fail. Special claims over those resources should then always be granted, even if at the cost of pressing general claims. But even thus reformulated the argument should be rejected. It would remain far too strong a conclusion to suggest that the mere existence of attachment-based special claims will always decisively count against the general claims of outsiders – as the examples above demonstrate. Even reformulated as an argument about justice, to declare that special claims will always trump the claims of outsiders, even where their basic rights are at stake, would be indefensible. Any satisfactory account seeking to integrate general and special claims over resources will instead internalise a set of constraints, including a basic rights proviso, which would rule out the kind of perverse conclusions I earlier suggested would emanate from Kolers' account (for such an account, see Armstrong, 2012a). If that is right, then we must hope and believe that it is possible to take attachment-based special claims over natural resources seriously – without granting quite that much ground to them.