Cara Nine is a Lecturer at University College Cork. She received her BA in Philosophy from Carleton College and PhD in Philosophy from the University of Arizona. Her work takes up questions in pre-institutional political and moral philosophy—she tries to ask questions about the foundational assumptions of contemporary value theory. And so ends up asking things like: what is a state border? And, why is it inappropriate to morally blame the weather for causing harm? Her book Global Justice and Territory (OUP: 2012) won the APA Book Prize and Brian Farrell Book Prize from the Political Studies Association of Ireland. Since 2009, she has co-directed a research network on Territory and Justice.

A Theory of Compromise and Original Acquisition

Cara Nine

In 2007, Russia planted a flag on the ocean floor at the North Pole. Countering Russia’s move, countries such as Denmark, the US, and Canada desire to push their territorial boundaries out into the High Seas Arctic.

As a philosopher studying resource rights, I find these moves fascinating. Does a flag equal a claim? How far can territorial rights be extended, and on what grounds?

Up until now, political philosophy has explained the acquisition of natural resources, in one way or another, through the terms of human settlement. An agent acquires natural resources by moving into the area that contains that resource. Even claims to the ocean floor depend on settlement—they must be adjacent to settled land.   Settlement claims then can be extended (?) over areas that are not settled.

Several factors seem to make the adjacency, or settlement, criterion insufficient for understanding how an agent could originally acquire Arctic resources. First, technology and climate change have made it possible to control and extract resources from extremely remote, uninhabitable areas, leading states to extend their oceanic claims as far from their shores as politically possible. Second, claims to the North Pole include such a large amount of uninhabitable area that reasons linking the justification of a claim to settled territory is spurious. Alaska’s northern-most point is 1,291 miles from the North Pole; a smaller distance separates France from Russia. At some distance, adjacency claims must become arbitrary. Finally, even if adjacency is relevant, it, at least theoretically, could be overridden by other important considerations.

I suggest that resource rights in the deep sea may be created, alternatively, through acts of compromise.

Compromise. A compromise is identified by its process and outcome. The process involves mutual respect and acknowledgment of the other as an autonomous, moral agent with her own point of view. The outcome of a compromise is defined by mutual concession and mutual benefit.

Compromise requires each party to feel that she has given up something of value. This characterization alone is not yet able to distinguish compromise from other kinds of transactions. For example, a buyer values her money and yet she gives up a sum to obtain something she values more when she buys something in a shop. A compromise distinguished from a mere transaction usually involves the sacrifice of something more deeply felt, such as failing to act on a normative principle. A precondition for compromise is that all parties sincerely agree to sacrifice something of personal moral value through negotiation with the other parties. The complexity of the divergent reasons motivating the parties requires that each listens to and considers the other’s perspective, beliefs, and reasons.[i]

Suppose two farmers live on either side of an unclaimed field. (It’s not too much of a stretch to imagine the Farmers as opposing Arctic countries.) Both desire to expand their farms into that field. Farmer A believes that she morally deserves the entire vacant field because she worked hard to be successful the previous season, making it possible for her to expand. She believes that her neighbour is lazy and merely benefits from good luck, not hard work. Farmer B, she estimates, deserves no part of the field. Farmer B, conversely, believes that gaining the entire vacant lot is the only way to honour his father’s memory, and he feels a strong moral duty to do so. Farmers A and B cannot both act on their personal moral principles. If they compromise and divide the field, they will have failed to act morally, from each personal perspective. A compromise is a personal loss, a non-fungible negation that remains after the receipt of benefits.[ii]

Original Acquisition. Original acquisition is often described in Lockean terms—under which the process of acquisition involves a person and an unowned object. When the person labours on the object, she may acquire a set of claims to that object. In cases like the Arctic, however, we might want to consider methods of dividing rights that don’t depend upon previous interactions. For, first, rushing out into the Arctic could be interpreted as a sign of aggression and incite conflict. Second, requiring labour prior to acquisition is inefficient, especially in the case of resources under the seabed. In these cases, millions of hours and dollars have to be invested before labour can even be pursued.

On a theory of compromise, if parties make a compromise over unowned goods, then the result of their compromise can result in legitimate rights over those goods.

Here’s the interesting thing about compromise and original acquisition: compromise has two stages. In the first stage of negotiation, the parties bargain towards a mutually acceptable resolution. To be possible, the group must have the authority to determine rights over the disputed object of the compromise. In other words, the group has exclusive powers to determine rights over the object, and external parties have an obligation to refrain from interfering in the group’s authority. As this stage establishes the original exclusive claim, it is the initial point of exclusion. This means that the parties to the compromise already have exclusive powers over the goods, even though they have not yet come to any agreement.

In the second stage, the compromise is complete. The parties to the compromise leave the negotiation table with a set of rights over object(s) determined in the outcome of negotiation.

The main philosophical task is to explain how the first stage of compromise can give rise to external duties of non-interference.

I propose that a compromise is a mechanism of removal that itself is objectively valuable, and could give rise to external duties of non-interference, even without knowing the outcome of the agreement. Here are a few reasons to think compromise is objectively valuable:

1. Compromise necessarily creates value for the persons making the compromise, from their perspectives. It includes an internal test, that a collection of agents (the parties) consider the outcome reciprocally valuable, on the validity of their conceptions of value, and thus, in a minimal sense, creates a shared value.
2. Because compromise includes negotiation to secure an overall benefit, it creates a pareto improvement in each party’s situation from her perspective. This ensures that the value of fairness between parties will be promoted through the compromise.
3. Often compromise is the only way to resolve conflict. Its procedures demand genuine mutual recognition and respect between parties. In themselves, these features diffuse tension and temper the escalation of hostilities. Further, compromise gains valuable outcomes without requiring jointly shared concepts or values.
4. Beyond these features, a compromise regarding an original division of natural resources not only involves an agreement about the primary outcome, but also about the moral principles that support the reasons behind the division. The compromise over principles is valuable in that it sets the conditions for what is a just division of goods, from the perspective of the parties to the compromise. Suppose that only China and Norway each desire a large claim of the Arctic seabed. Both endorse the claim that property rights should be governed by a stable system of rights and rights enforcement. That is, they realize that any claim they make is only as good as the system of rights that is enforcing that claim. Since there is no system of rights governing property within the Arctic (or there is the possibility of massive reform of this system), the parties must also negotiate the terms of a minimal system of rights that will secure their property claims.   This requires that they agree to a minimal set of principles governing the terms of resource rights within the Arctic. A compromise over the rules of the system of rights engages the parties in a deeper discussion of political values. This negotiation sets the conditions of a just system of rights, in the sense that it creates a system of rights that is consented to by both parties.

On the basis of creation of shared value, then, a compromise to acquire natural resources involves the creation of value along several dimensions, and there are sufficient initial grounds for accepting the terms of the compromise as creating rights over goods.

A final note. A compromise can only be objectively valuable if it occurs within the context of appropriate inclusivity and exclusivity. These constraints include criteria regarding who cannot be permissibly excluded and who must be excluded from the compromise. For instance, to be permitted, agents must actually intend to act in accordance with the agreement and have the capacity to perform this action in accordance with a large set of contextual moral rules. (This condition disallows things like you and I legitimately dividing the moon between us, since neither of us (or at least I) don’t have any capacity to physically interact with the moon.) It also demands that parties are capable of taking responsibility for their intended actions—of cleaning up their messes, so to speak.

To quickly summarize—a theory of compromise could provide a means for agents to acquire original rights over remote objects. A lot more needs to be said, here, but I think it’s a promising avenue for framing a new discussion about how to establish rights over the Earth’s remaining unclaimed resources. (Not to mention future mining rights on the moon!) A theory of compromise could also help to untangle difficult questions regarding collective rights to resources. In particular, in cases of secession, previous collective compromises over shared resources have to be deconstructed and remade. Understanding how compromise gives rise to collective obligations over resources could provide a framework for understanding how rights and duties are both created and undone.

[i] Goodin, Robert and Geoffrey Brennan. “Bargaining over Beliefs” Ethics 111, no. 2 (2001).

[ii] Lepora, Chiara. “On Compromise and Being Compromised” The Journal of Political Philosophy 20, no. 1 (2012).