Shackelford: The Tragedy of the Common Heritage of Mankind

Scott Shackelford has posted The Tragedy of the Common Heritage of Mankind (Stanford Environmental Law Journal, Vol. 28, no. 1, February 2009). Here's the abstract:

Territorial sovereignty has in large part defined both international relations and international law since the 1648 Treaty of Westphalia. The primary exception to this principle is the international commons. In these areas, which include the deep international seabed, the Arctic, Antarctica, and outer space, concerns over free passage outweighed the great Western powers’ territorial ambitions and Grotius’s mare liberum triumphed. As a result, these regions were gradually regulated to a greater or lesser extent by the Common Heritage of Mankind (CHM) principle, in which theoretically all of humanity became the sovereign over the international commons. Yet there remains no commonly agreed-to definition of the CHM amongst legal scholars or policymakers. Developing and developed nations disagree over the extent of international regulation required to equitably manage commons resources. These disagreements have played out in the diverse legal regimes of the Antarctic, deep seabed, Arctic, and outer space, each with its own version of the CHM principle. Although no universal definition exists, most conceptions of the CHM share five primary points. First, there can be no private or public appropriation of the commons. Second, representatives from all nations must manage resources since a commons area is considered to belong to everyone. Third, all nations must actively share in the benefits acquired from exploitation of the resources from the common heritage region. Fourth, there can be no weaponry or military installations established in commons areas. Fifth, the commons should be preserved for the benefit of future generations. But now even these basic preconditions are in flux, with states claiming large tracts of the Arctic; the United States, Russia, and China pursuing space weaponry; and oil companies drilling further out into the deep seabed. As resource competition intensifies at the extremes of human civilization, 'special sovereignty areas' (SSAs) and in particular the communal property principle of the CHM are under pressure with the need for greater private economic development. With resources becoming increasingly scarce and technology advancing to meet surging demand, longstanding principles of communal property in the international commons will either be reinterpreted or rewritten outright. The only question is whether this redrafting will occur proactively with the international community laying out a multilateral legal regime to govern these areas, or retroactively, formalizing a sub-optimal status quo. A historical examination of sovereignty coupled with case studies of new territorial claims on the deep Arctic seabed and the re-conception of space law to favor private property rights will demonstrate this process. By exploring the development and interconnected nature of these branches of international law, we can understand how the regulatory frameworks and theoretical justifications for these areas are evolving and in turn impacting the commons. Existing comparative case studies on commons territories focus on the similarities and differences of commons regimes while neglecting the co-evolution and converging fate of the CHM regions, specifically that all components of the international commons are either now being challenged or already shrinking. The international commons must thus evolve to survive. This fact necessitates a review analyzing how the CHM principle has developed both theoretically and in practice. My analysis will show how CHM development has informed the optimal regime going forward to meet the demands of resource scarcity while at the same time respecting the characteristics of multilateral international cooperation, peaceful use, and communal ownership that have long defined the commons. This article develops a framework for property rights over natural resources in the international commons by first building a foundation for discussion. Part I analyzes the historical evolution of sovereignty over the commons from Westphalia to such modern notions as popular sovereignty. This analysis demonstrates that a combination of factors drove this evolution, but foremost among them was technological progress. Part II examines property rights in international law, including how the international law of the sea has developed over time to allow greater private economic development. Part III focuses on how proprietary rights already exist in the commons, and illustrates how these rights can be employed to avoid the tragedy of the commons scenario. In the future, the CHM regime will be further modified by capital exporting nations with advanced extractive industries, as has already occurred in the United Nations Convention on the Law of the Sea (UNCLOS), to allow for private exploitation demonstrating the extent to which technological progress impacts sovereignty over the commons. In conclusion, I argue that a modified leasehold system somewhat reminiscent of the Homestead Act could maintain the pillars of the CHM principle while allowing for limited property rights and sustainable economic development in the commons.