Shared Sovereignty over Migratory Natural Resources

Abstract

With growing vigor, political philosophers have started questioning the Westphalian system of states as the main actors in the international arena and, within it, the doctrine of Permanent Sovereignty over Natural Resources. In this article I add to these questionings by showing that, when it comes to migratory natural resources, i.e., migratory species, a plausible theory of territorial rights should advocate a regime of shared sovereignty among states. This means that one single entity should represent their interests and maybe also those of third parties, managing and making decisions over the resource as a whole. Although such a regime might be the tacit goal of existing international conventions regarding wildlife, it remains untheorized in political philosophy and largely under-theorized in international law. By presenting the critical situation of the monarch butterfly in North America, I point to the inadequacy of the compartmentalized current regime, which generates injustice in migration; namely, the phenomenon whereby range states of a given species may neglect or over-exploit it while in their territory, to the detriment of others. I suggest that more flexible and imaginative governance arrangements are needed to deal in a better way with these and similar natural resources.

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Notes

  1. 1.

    This idea is reiterated in later UN documents, such as the Charter of Economic Rights and Duties of states and the International Covenant on Economic, Social and Cultural Rights (see respectively, UNGAR 1974, 1976).

  2. 2.

    There are a series of good reasons to demand resilience and sustainability from collectives claiming sovereignty over natural resources, and expounding them here would lead this article in a different direction. Just to mention two: for purely instrumental reasons, keeping the ecological balance and caring for the environment are good things for the people who live in the territory. Second, as a matter of justice, having these two principles limit the conduct of territorial entities helps to ensure that they will leave enough and as good for present and future others to use, a matter of utmost importance given the ever scarcer natural resources available in the world today, and the ever increasing demand for them.

  3. 3.

    The literature on the legal treatment of migratory species at the global level yields only a few, mostly outdated results (De Klemm 1989; Navid 1989; Bowman 1999a, b; Sands 2003). In the contemporary literature on political philosophy, as far as I have searched, they remain entirely absent.

  4. 4.

    Those that move within state borders and those that never leave the commons throughout their lives (like maybe some cetaceans and tuna) are not going to occupy me here, insofar as they only fall under just one jurisdictional regime.

  5. 5.

    Other treaties relating to migratory species focus either on a particular kind (like the International Convention for the Regulation of Whaling, from 1946), or a particular region (like the Bern Convention on the Conservation of European Wildlife and Natural Habitats, from 1979).

  6. 6.

    See for example: ‘Wild animals in their innumerable forms are an irreplaceable part of the earth’s natural system which must be conserved for the good of mankind’ (Bonn Convention, p. 1, my emphasis).

  7. 7.

    A less damaging although still unfair version of injustice in migration would be that of free-riding in migration; namely, when one of the range states takes pains to conserve a given migratory species while the other(s) enjoy the benefits without contributing to that end. I thank Avery Kolers for suggesting this.

  8. 8.

    Apart from aesthetic, these are: environmental, ecological, genetic, scientific, recreational, cultural, educational, social and economic (Bonn Convention, p. 1).

  9. 9.

    I am assuming that illegal logging in Mexico—which was a few years ago signaled as the main cause in the declining numbers of monarchs—has been to a large extent eliminated thanks to the government taking action and establishing regular anti-logging patrols (see ‘Hope for monarch butterfly after Mexican logging halted’ 2014). My analysis would change, however, if the increasing number of clandestine drug laboratories within Mexico’s natural reserves and the violent take-over of the timber industry by drug cartels in Michoacán became yet another cause of the monarch’s decline (see for example, ‘Impacta el narcotráfico áreas naturales protegidas de México’ 2014).

  10. 10.

    Some could here object that it is actually the Canadian and U.S. farming industry that ought to get compensated by the Mexicans if measures are taken to preserve the butterflies that negatively affect their corporate interests. I deal with this objection below.

  11. 11.

    I here use the term natural debt descriptively, although it is normally given a normative connotation, insofar as what constitutes over-use is set by some theory of just entitlements (Blomfield 2014).

  12. 12.

    It is interesting to note that, although the doctrine is called full permanent sovereignty, when it comes to migratory species it can only be temporary.

  13. 13.

    Albeit unsuccessfully, this principle was invoked at the turn of the twentieth century, in what was known as the Pacific Fur Seal Arbitration. There, the U.S. claimed sovereignty over the Bering fur seals beyond their national jurisdiction, based on the fact that they had bred on U.S. territory. Without using these terms, the U.S. government at the time was complaining against injustice in migration—the ground of their complaint being the over-exploitation of the seals by British vessels that caught them as res nullius in the open sea (Sands 2003, p. 562).

  14. 14.

    The most thoroughgoing theory in this regard is Hillel Steiner’s, who proposes that every individual on earth ought to be entitled to an equal share of the value of natural resources: her unconditional initial capital grant (Steiner 2009, p. 6).

  15. 15.

    It is precisely on this basis that the IWC has issued non-zero whaling quotas for aboriginal subsistence.

  16. 16.

    The literature on collective agency and common intentionality is vast and this is not the place to review it. Here I follow Raimo Tuomela’s definition of a group agent as one whose ‘functional and intentional existence… derives from the joint attitudes, dispositions, and actions of its members, and from the irreducible reference to the group that these attitudes and actions involve and that is here assumed to make groups conceptually irreducible to the members’ individual properties and relationships not based on the group’ (Tuomela 2013, p. 3).

  17. 17.

    I am therefore skeptical of proposals such as that of Banai (in this issue), where each polity is left to decide the upper limits on the permissible exercise of territorial jurisdiction over natural resources. At least when it comes to migratory species, a unilateral self-imposition of provisos on consumption and exploitation of certain resources seems inefficient and ultimately insufficient to guarantee their sustainability, even if done with a due regard to the right to self-determination of other polities.

  18. 18.

    Maybe this task-force could take the legal form of a guardian along the lines of Christopher Stone’s proposal for guardianship of natural objects (Stone 2010).

  19. 19.

    One more feature of joint tenancy that may turn out to be relevant for the analogy (in cases of state secession or merging) is the right of survivorship, whereby the death of one joint tenant automatically transfers her part of the property in equal parts to the survivors (see ‘West’s Encyclopedia of American Law’ 2008).

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Acknowledgments

For their insightful comments on earlier drafts, I thank the participants at the PPPE Club and the Conference Ecological Challenges (University of Oslo), the Annual Conference of the Association for Legal and Social Philosophy (University of Leeds), and the Mancept Workshop on Animal Rights and Political Theory (University of Manchester). I am also thankful for their written feedback to Megan Blomfield, Lars Christie, Alfonso Donoso, Avery Kolers, Kerstin Reibold, Scott Wisor and an anonymous referee of this journal. Finally, I thank Douglas Tallamy, Lincoln Brower and Jorge Zeballo for detailed scientific information about the monarch’s decline. This work was partly supported by the Research Council of Norway through its Centres of Excellence funding scheme, Project Number 179566/V20.

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Mancilla, A. Shared Sovereignty over Migratory Natural Resources. Res Publica 22, 21–35 (2016). https://doi.org/10.1007/s11158-015-9309-7

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Keywords

  • Shared sovereignty
  • Migratory species
  • Natural resources
  • Monarch butterfly