International Law and Scarcity

Scarcity of land, water, food, fish…These are common refrains today, and yet they beg an important question: what is scarcity?  This was the starting point of a terrific conference this week organized by the Dean Rusk Center, at the University of Georgia Law School, the Georgia Journal of International and Comparative Law, and OJ friend Professor Harlan Cohen.

The definition of scarcity can be approached in three ways.  Usually, scarcity is determined by supply and demand.  When demand outruns supply, it goes, we are in a state of scarcity. Nonetheless, the economic view of scarcity is not the only relevant framework because it doesn’t address questions of access.   Another way of looking at the issue, therefore, is through the window of rights and justice.  In other words we must consider vulnerability, exclusions, and access when we are assessing access.  Finally, we might look at the use of exhaustible resources on a trajectory.  As resources are used, we move down a slope.  The issue then is where are we on that slope with regards to exhaustible resources, and what should we do about it?

On the issue of how to respond to questions of scarcity, members of the panels canvassed opportunities to conserve, redistribute, substitute, innovate, acquire, and even abandon.  Some were particularly keen to highlight the problems of waste, as we contemplate scarcity.   Nonetheless, the discussion led to the suggestion we can’t get a handle on any of the scarcity issues in one area without coming to terms with the fact choices may need to be made about what uses are most important.  Normative choices about what to prefer, perhaps based on substitutability, will be part of the solution.  (Although, water and air of course are not substitutable.) Moreover, we might need to think hard about governance choices in order to make those institutions stick.  Management and regulation are therefore part of the conversation.

But these approaches raise big questions about whether to think about all these issues separately or together, in emergency/crisis terms or in terms of long-range planning, locally or globally.  Ultimately, it may depend on what resources we are talking about.  For my part, I discussed scarcity and redistribution in the case of Bluefin Tuna, which I have blogged about here.