Property Rights and Natural Resources

About this book

The use of private property rights to regulate common pool natural resources is a controversial topic, which must address two critical issues: the allocation of wealth in society and proper conservation and management of limited resources. Given the privatisation of many natural resources within the confines of States, the most significant common pool natural resources are those located in international areas, such as the high seas and the atmosphere.

This book explores the extension of private property rights and market mechanisms to the regulation of resources in these areas. Looking at developments in off-shore fisheries and mineral exploitation (with references to other areas such as forestry and pollution quotas, where appropriate), the book considers the legal ramifications of current moves towards the privatisation of common pool natural resources. It is sceptical about this process and, in particular, questions whether private property is the most effective and socially responsive arrangement for the regulation of certain natural resources. It then suggests that other property regimes, such as stewardship (which is strongly advocated), provide alternative and workable templates for resource regulation, precisely because they are more responsive to the broader needs of the society whose interest the property system is designed to fulfil.

Taking account of legal and philosophical developments in property theory, as well as the impact that property justifications have on the regulation of natural resources, the author is able to show that the economics literature is flawed. The author also assesses the impact of international law on the use of property rights - a much neglected topic - showing how, because many natural resources straddle international boundaries, jurisdictional and international law issues must be taken into account if they are to be regulated.

Contents

Chapter 1: Natural Resources, International Law and Property 1. Some Problems Concerning the Regulation of Natural Resources 2. Property and Sovereignty: Some Modes of Analysis 3. Scope and Orientation of this Study Chapter 2: The Private Function of Property 1. Introduction 2. Property and Excludability 3. Justifications of Property (a) Property as a Natural Right (b) Property as Liberty (c) Property as Utility (d) Economic Approaches to Property Rights (e) Property as Propriety (f) Property and Pluralism 4. Concluding Remarks Chapter 3: The Public Function of Property Rights 1. Introduction 2. A Template for the Public Function of Property: The Public Interest (a) The Nature and Identity of the Community (i) Plenary Legal Communities (ii) Types of Plenary Legal Community (iii) State and International Legal Community Contrasted (iv) Conclusions on Plenary Legal Communities and their Public Interests (b) The Categories of Public Interests (i) Operative Public Interests (ii) Normative Public Interests (iii) First Order Public Interests (iv) Second Order Public Interests (v) Third Order Public Interests (vi) The Relationship Between Orders of Public Interest 3. Public Interests and the Public Function of Property Chapter 4: Reconciling the Private and Public Functions of Property 1. Introduction 2. The Interface Between Private and Public Functions of Property (a) The Coincidence of Private Rights and Public Interests (b) Rights as Trumps (c) Public Interests as Trumps (d) A Determinable Relationship between Rights and Interests 3. Delimiting Justifications (a) Physical Factors that Shape the Relationship between the Private and Public Functions of Property (b) Legal Factors that Shape the Relationship between the Private and Public Functions of Property (c) Moral Factors that Shape the Relationship between the Private and Public Functions of Property 4. Forms of Property 5. Stewardship 6. Conclusions Chapter 5: The Influence of Property Concepts in the Development of Sovereign Rights over Ocean Space and Resources 1. Introduction 2. The Grotian Period: The Mare ClausumMare Liberum Debate (a) Background (b) Doctrinal and Theoretical Considerations 3. Freedom of the Seas (a) Background (b) Doctrinal and Theoretical Considerations 4. Consolidating Coastal State Control: Territorial Seas (a) Background (b) Doctrinal and Theoretical Considerations 5. The Emergence of Resource Regimes (a) Continental Shelf (b) Exclusive Economic Zone 6. Concluding Remarks Chapter 6: Sovereignty and Property: General Considerations 1. Introduction 2. Territorial Sovereignty as Property 3. The Scope of Sovereignty (or Its Private Incidents) 4. Restrictions on the Exercise of Sovereignty (a) General Limits on the Use of Natural Resources (b) Limits on the Use of Natural Resources Under International Environmental Law 5. Sovereignty Bounded Chapter 7: Sovereignty, Property and Maritime Zones 1. Introduction 2. Maritime Zones and the Scope for Property Rights (a) Territorial Sea (b) Archipelagic Waters (c) Continental Shelf (d) Exclusive Economic Zone (e) Maritime Delimitation 3. Concluding Remarks Chapter 8: Property Rights and Fisheries 1. Introduction 2. Forms of Property in Rights-Based Fisheries Management Systems (a) Input Controls (b) Territorial Use Rights in Fisheries (c) Individual Quotas (d) Community Development Quotas (e) Stock Use Rights in Fisheries (f) Summary 3. Domestic Implementation of Property Rights-Based Management Systems (a) Australia (b) Canada (c) Iceland (d) New Zealand (e) United States 4. An Appraisal of Rights-Based Measures (a) Economic Consequences of Rights-based Measures (b) Conservation and Management Consequences of Rights-based Measures (c) Allocational Consequences of Rights-based Measures 5. Legal Aspects of Rights-Based Fisheries Chapter 9: Conclusion

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Biography

Richard Barnes is the Sir Q. W. Lee and Dr Peter Thompson Lecturer in Maritime Law at the University of Hull.