Legal and Institutional Barriers to Establishing Non-Use Rights to Natural Resources

For many natural resources, property rights are established and maintained by using the resource, but this creates obstacles to the emergence of non-use rights for environmental or conservation purposes. If rights can only be established once a resource is used, then the institutions that govern natural resources will be unable to resolve conflicting use and non-use demands. This article describes the ways in which various natural resource governance institutions are based on use rights and the obstacles that creates for accommodating environmental demands based on non-use. It provides several case studies that illustrate the challenges of establishing non-use rights to rangelands, oil and gas resources, timber, and water.

These institutional impediments to the emergence of property rights-based solutions to conflicts over natural resources have been overlooked by many scholars, but they may be as important and prevalent as the common concerns over the provision of public goods and the free-rider problem.