International Law in a Time of Scarcity: an Introduction

• Publication year: 2013
• Citation: Vol. 42 No. 1

INTERNATIONAL LAW IN A TIME OF SCARCITY: AN INTRODUCTION

Harlan Grant Cohen^*

TOO LITTLE OF EVERYTHING

Stories of scarcity litter the morning newspapers. States and companies race for control over limited supplies of minerals¹ and fossil fuels.² Water scarcity threatens China,³ Africa,⁴ and the American South.⁵ Food prices soar⁶ as extreme heat,⁷ drought,⁸ flooding,⁹ and severe rains¹⁰ destroy key

[Page 2]

crops. Food shortages are reported in Egypt,¹¹ in Venezuela,¹² in Jamaica,¹³ in Mali,¹⁴ in Haiti,¹⁵ in Niger,¹⁶ and in Africa generally.¹⁷ The list goes on and on. And with this scarcity has come instability, as states threaten each other with war,¹⁸ riots break out, and governments fall.¹⁹ The Arab Spring, of course, began in part with complaints about rising food prices.²⁰

But scarcity doesn't just seem to run rife, a common problem arising independently across a range of resources in a range of places. On the contrary, these stories of scarcity seem deeply and inextricably intertwined. Increased demand for wealth and goods in developing states like India and China fuels increasing demand for food²¹ and energy.²² That increased

[Page 3]

demand drives rising fossil fuel prices;²³ increased fossil fuel consumption contributes to climate change and global warming.²⁴ Increased demand for fossil fuels spurs the search for new, harder-to-access sources. Some of these may be in contested territories;²⁵ others may be complicated to extract, putting pressure on other resources like air or water in the process.²⁶ Concerns about both climate change and rising fossil fuel prices increase demand for alternative energy sources, including biofuel. Rising temperatures and severe weather associated with climate change put pressure on food production, destroying or ruining crops through drought, fires, or increased rain.²⁷ Rising prices for alternative energy sources increase the diversion of arable land to biofuel production and the diversion of products like palm oil or cassava from food to fuel.²⁸ Together with results of climate change, those shifts fuel volatile and rising food and cooking oil prices.²⁹ Volatile and rising food prices encourages a global land grab, as states and other investors race each other to secure access to arable lands and water supplies.³⁰ As these global interests bring industrial export-driven farming to these newly acquired lands, land and water for small indigenous farmers

[Page 4]

grows increasingly scarce.³¹ To the apocalyptically minded, drawing lines between these stories of scarcity undoubtedly suggests a vicious downward spiral in which everything is doomed to become scarcer and more expensive. Recent riots over rising food prices³² might only auger worse things to come.³³

But not all are convinced of an impending Malthusian collapse.³⁴ In his article in this issue, Jose A. Cuesta catalogues the views of more optimistic economists who see human knowledge and technological progress as antidotes to physical scarcity.³⁵ In the words of another, "[h]uman ingenuity and technological progress have so far managed to outpace the natural forces conspiring to bring about the downfall of mankind and the despoliation of the environment."³⁶ But regardless of how one perceives the prospects for the planet's long-term future and the implications for subsequent generations, the realities of resource scarcity and the very immediate dilemmas, displacements, and devastation they can cause are already with us. In the short-term, scarcity is very much our problem.

Does international law have the resources to manage, if not solve, this complex global problem? Different areas of international law governed by different regimes have their own ways of conceptualizing and managing scarcity. International human rights law may frame the problem as one of individual economic and social rights or as one of the right of indigenous

[Page 5]

groups.³⁷ International trade law and international investment law may each treat scarcity as a problem it can solve by either growing the global pie through more liberalized trade or encouraging greater investment in agriculture, water management, or energy.³⁸ In some extreme cases, scarcity may serve as a limited exception to a state's obligations.³⁹ For the most part though, these models from different areas of international law operate in isolation from one another, following their own internal logics. It is possible that some of these different approaches complement one another.⁴⁰ But in many cases, these approaches conflict and may actually exacerbate the problems and tensions produced by scarcity. A bilateral investment treaty may protect the rights of foreign investors to water and crops even when local farmers are facing famine or drought.⁴¹ Law of the Sea rules guaranteeing access to foreign fishing may conflict with coastal states fishermen's human right to food.⁴² The energy regime may call for increased oil production and lower prices even as the environmental regime calls for the opposite.⁴³ Or as Kristen Boon explained during her presentation and elsewhere, Bluefin Tuna may be an endangered species under the Convention on the International Trade in Endangered Species (CITES) or a valuable food source under regional fishing agreements.⁴⁴

The problem of scarcity has started to get the attention of international law scholars and experts, but much of the discussion has remained confined to specific regimes or regime complexes. Given the interconnected nature of the problem and the complicated interaction of myriad moving parts,

[Page 6]

however, a more holistic approach, one that can bridge both subjects and regimes, is required.

The Symposium

It was with this goal in mind that the editors of the Georgia Journal of International and Comparative Law convened their 2012 symposium: "International Law in a Time of Scarcity."⁴⁵ The editors brought together a group with deep and varied expertise on issues of global scarcity: Kristen Boon, a professor of international law at seton Hall University Law school whose work has focused on international organizations, the management of post-conflict situations, and regime competition over fish and fisheries; Jose A. Cuesta, a senior economist at the World Bank, an affiliated visiting professor at Georgetown University, and founding member of the World Bank's Food Security and Nutrition Knowledge Platform, whose research interests include development economics, poverty, food security, conflict and the analytics of public policy; Lincoln L. Davies, a professor of law at the University of Utah S.J. Quinney College of Law, whose research spans renewable and alternative energy, carbon capture and sequestration, nuclear power, utility law, and regulatory and technology innovation; Gabriel Eckstein, a professor of law at Texas Wesleyan University School of Law and expert in U.s. and international water and environmental law and policy; Barbara Deutsch Lynch, a visiting associate professor at the Georgia institute of Technology's Sam Nunn School of International Affairs whose research focuses on economic development, urbanization, and natural resource utilization in Latin American societies; Lillian Aponte Miranda, an associate professor of law at Florida International University and expert on human rights and the rights of minorities and indigenous peoples; Felix Mormann, an associate professor at the University of Miami school of Law and faculty fellow with Stanford University's Steyer-Taylor Center for Energy Policy and Finance and expert on sustainable energy policy; Aparna Polavarapu, an assistant professor at the University of south Carolina school of Law, whose research examines women's rights and access to justice in East Africa, touching on areas of rule of law, gender equality, access to land, and customary/statutory law interaction; and Anastasia Telesetsky, an associate professor of law at the University of Idaho College of Law with expertise in international law, environmental protection, and the law of the sea. As a

[Page 7]

keynote speaker, the JOURNAL had the honor of hosting the law school's distinguished alumna, Ertharin Cousin, Executive Director of the United Nations World Food programme, whose inspiring lunchtime lecture laid out the real on-the-ground work of the U.N. World Food programme in alleviating the effects of food scarcity around the world.

Building on the range of experiences and expertise of the participants, the discussions at the symposium were wide-ranging, thought-provoking, and deep. panelists were asked over the course of the day to consider a range of broad questions: What do we really mean when we talk about a resource being "scarce"? When does scarcity become a problem? Is scarcity becoming more of an issue than it might have been in the past, and if so, why? Can common sources of scarcity be identified? How do current legal and policy regimes respond to, cope with, ignore, or exacerbate scarcity issues? panelists were also asked to explore the way forward, considering lessons learned from...