The Global Commons

An Introduction

Susan J. Buck

• Publisher: Island Press
• Year: 2012
• Print ISBN:
  9781559635516
  9781559635509
• eBook ISBN:
  9781597267625
• Topic: Biological Sciences
• Subtopic: Public Policy
• Index: Biological Sciences

Vast areas of valuable resources unfettered by legal rights have, for centuries, been the central target of human exploitation and appropriation. The global commons -- Antarctica, the high seas and deep seabed minerals, the atmosphere, and space -- have remained exceptions only because access has been difficult or impossible, and the technology for successful extraction has been lacking. Now, technology has caught up with desire, and management regimes are needed to guide human use of these important resource domains.

In The Global Commons, Susan Buck considers the history of human interactions with each of the global commons areas and provides a concise yet thorough account of the evolution of management regimes for each area. She explains historical underpinnings of international law, examines the stakeholders involved, and discusses current policy and problems associated with it.

Buck applies key analytical concepts drawn from institutional analysis and regime theory to examine how legal and political concerns have affected the evolution of management regimes for the global commons. She presents in-depth case studies of each of the four regimes, outlining the historical evolution of the commons -- development of interest in exploiting the resource domain; conflicts among nations over the use of the commons; and efforts to design institutions to control access to the domains and to regulate their use -- and concluding with a description of the management regime that eventually emerged from the informal and formal negotiations.

The Global Commons provides a clear, useful introduction to the subject that will be of interest to general readers as well as to students in international relations and international environmental law, and in environmental law and policy generally.

Chapter 1

Organizing the Commons: Definitions and Assumptions

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

—William Blackstone, Commentaries on the Laws of England (1776)

“That sole and despotic dominion which one man claims and exercises over the external things of the world”: this is how in 1776 English jurist Sir William Blackstone described the right of property. Much of human history can be described as an effort to establish such sole and despotic dominion. Historically, human response to vast areas of valuable resources unfettered by legal rights recognized by the dominant culture usually has been appropriation by governments and individuals, followed by exploitation as soon and as rapidly as physical force and technology would permit.

Global commons—Antarctica, the high seas and deep seabed minerals, the atmosphere, and space—have remained exceptions only because access to them has been difficult and the value of the resources they contain has not been enough to justify the effort of acquiring them.¹ Today, however, technology has caught up with desire. Fortunately, the vulnerability of the global commons can be addressed in an era of remarkable peace among the superpowers. We have the luxury of engaging in public policy debates over the design of management regimes, and decisions are made at the negotiation table rather than on the battlefield.

Some scholars have suggested that recent developments in international law foreshadow remarkable societal change. B. V. A. Röling recognizes the current era as a Grotian moment (named for Dutch scholar and humanist Hugo Grotius): “a time in which a fundamental change of circumstances [creates] the need for a different world structure and a different international law.”² Others concur that the late twentieth century is a time of fundamental change.³ If we are indeed facing a Grotian moment, the story of the recent changes in international law should provide key indicators of impeding change. This question is revisited in chapter 7.

The purpose of this book is to examine how legal and political contexts have affected the evolution of management regimes for the global commons. The approach is both narrative and analytic. The historical development of each commons management regime is described, with particular attention given to the role of law. Historical events are then examined through the lens of the analytic framework proposed in chapter 2.

This chapter begins by setting out the terms, definitions, and concepts used throughout the book. The second section discusses the influence of national politics, scientific uncertainty, and interest groups on the formation of international regimes.

The third section of this chapter presents the assumptions that undergird the discussions of international and global commons that follow. The first assumption is that a knowledge of historical and institutional history is important in regime design and sustainability. The second assumption is that sustainability is the appropriate goal for public policy outcomes in international and global commons.

The chapter concludes with a narrative outline of the remaining chapters.

Definitions and Concepts

Language matters in the law, perhaps more so than in other professions and academic pursuits. Words are used with precision, and because of this, complex ideas can be expressed succinctly. Once a second or third discipline is represented in an academic discussion, discourse becomes more complicated and much time is spent in clarification. This is not to say that the scholars in each discipline are at war with one another; they may simply be unaware that terms familiar to them have different meanings in other disciplines. For example, in the law, alienation is a term from real property law meaning “the transfer of the property and possession of lands, tenements or other things, from one person to another.”⁴ However, in the literature of common pool resources, alienation is “the right to sell or lease collective choice rights to manage resources or to exclude others from them.”⁵ Thus, in the common pool resource literature, alienation applies to a much broader category of behavior, and the legal scholar, who knows quite well what alienation means, loses the full meaning of the discourse. In this volume, I have mingled the ideas and the vocabulary of several disciplines: law, economics, ecology, political science, public administration, and cultural anthropology. It is therefore critical that the meaning of the core terms is clear from the outset.

To understand commons and common pool resources, we must first understand the differences and connections between resources, resource domains, property, and property regimes.

A resource is anything that is used to meet the needs of an organism. Some resources are natural resources, that is, material that has economic or social value when extracted from its natural state.⁶ Others are spatial-extension resources, which have value because of their location. For example, geostationary orbits are not natural resources because they are not extracted or converted from their natural state; they are, however, spatial-extension resources in that they may be used to meet telecommunications needs.

Resources are located in fixed spatial dimensions known as resource domains. For example, fish are a natural resource found in the ocean resource domain. Geostationary orbits are resources found in the space resource domain. In some situations, the domain and the resource are coterminous. For example, when sailors use the oceans as roads to transport people and goods, the oceans themselves are a resource. When the sailors are fishing, the oceans are also a resource domain and the fish stocks are the resource.

Property is not used here in the “vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law.”⁷ It is instead “an aggregate of rights which are guaranteed and protected by the government.”⁸ Property rights may be held by individuals or by groups of individuals such as communities, corporations, or nation-states. The property right to a resource is not a single right but rather a bundle of rights, such as rights of access, exclusion, extraction, or sale of the captured resource; the right to transfer one’s rights to a second person; and the right of inheritance. The specific composition of each bundle of rights varies. For example, all nations that are members of the Antarctic Treaty System have the right to establish Antarctic research stations in their bundle of rights, but they cannot transfer their access rights to nonmember states. In contrast, nations that have been assigned geostationary orbit slots may lease those slots to other countries. Both groups have rights to the resource, but one may transfer access rights and the other may not.

Thus far, a resource domain has been defined as the fixed spatial dimension in which resources are found; resources, as things used to meet needs; and property in resources, as a bundle of rights protected by the government. The bundles of rights may be categorized in a number of ways. One of the earliest ways to organize property regimes is derived from the Roman law of property.

In Roman law, property was thought to exist in one of four property regimes: res publica, res communes, res nullius, and res privatae.⁹ Objects for which the property rights are held by the government for the use and benefit of the public, such as navigable rivers, highways, and territorial seas, are res publica. Those things, such as light and air, that are accessible to any user but can never be exclusively acquired as a whole by any individual or government are res communes. Some objects have no property rights attached to them at all, either because they have been abandoned (stray cats) or because no person has acquired them (whales). These objects are res nullius, but once they are taken into possession by one or more individuals, they become res privatae.

I present these categories because they are so well known that they are often used by modern scholars to describe contemporary property regimes. However, despite the deceptive neatness of these categories, they are of limited usefulness in labeling common pool resources because they lack dimensions that incorporate the flow of resources from the resource domain, the nature of the resource itself, and the resource domain in which it is found.

A more helpful approach is to consider two attributes of resources: the difficulty or feasibility of excluding others from using the resources (exclusion) and the degree to which one appropriator’s use of the resource diminishes the amount of the resource left for others (subtractability).¹⁰ For example, it is fairly easy to exclude people from driving my car (a private good) but it is virtually impossible to exclude people from enjoying the benefits of a strong national defense policy (public good). Similarly, since only one person can drive my car at any given time, the good is highly subtractable, but the total amount of national defense available is not dependent on how many people are under its umbrella. Table 1.1 illustrates these categories.

This table is a useful heuristic device because it helps us categorize various resources, but we should not fall into the trap of confusing heuristic categories with immutable taxonomy. These four cells do not have absolute, impermeable boundaries. For instance, the classic example of a public good is the lighthouse, which casts its lifesaving beam across the water regardless of who will make use of it. It is impossible to exclude anyone from using the lighthouse beacon. However, in practi...

Table of contents

• ABOUT ISLAND PRESS
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Foreword
• Chapter 1 - Organizing the Commons: Definitions and Assumptions
• Chapter 2 - A Framework for Analysis
• Chapter 3 - Antarctica
• Chapter 4 - The Oceans
• Chapter 5 - The Atmosphere
• Chapter 6 - Outer Space and Telecommunications
• Chapter 7 - Conclusion
• Acronyms
• Treaties
• Glossary
• Bibliography
• Index
• ISLAND PRESS BOARD OF DIRECTORS