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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. 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." Others concur that the late twentieth century is a time of fundamental change. 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." 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." 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. 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." It is instead "an aggregate of rights which are guaranteed and protected by the government." 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. 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). 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 practical terms, all ships must eventually come into port, and most do so with predictable regularity. Thus, when the need for more efficient lighthouses became apparent in Scotland in 1787, Parliament created the Northern Lighthouse Board, which imposed a duty on all ships and decked vessels navigating the North Sea area. In effect, these Scottish lighthouses were not public goods but rather a form of toll good. Thus, most government-financed lighthouses would fit comfortably in the lower-right-hand cell of table 1.1 as public goods, but some would move toward the upper-right-hand cell as toll goods.
Common pool goods have high subtractability and are difficult to exclude others from using. For example, in the Swiss alpine village of Töbel, villagers own the forests in common. Every villager is entitled to cut a limited amount of timber (low exclusion), and once cut, the timber is no longer available for other villages (high subtractability). The timber is a common pool resource. Similarly, space is a resource domain from which it is difficult to exclude nations or businesses (low exclusion), but locations within space (spatial-dimension resources) such as geostationary orbits may be occupied by only one satellite at a time (high subtractability). Thus, geostationary orbits are common pool resources.
Each type of good implies a different bundle of property rights. For example, most private goods may be sold, but public goods cannot, and because common pool goods are subtractable, the right of access is usually limited to a legally defined user pool. The sets of rules (laws, treaties, regulations, customs) that define property rights are property regimes.
This leads to the definition of common pool resources: Common pool resources are subtractable resources managed under a property regime in which a legally defined user pool cannot be efficiently excluded from the resource domain.
International and Global Commons
Commons are resource domains in which common pool resources are found. They may be very small (the parking lot for an apartment complex) or quite large (the high seas or the solar system). The very large resource domains that do not fall within the jurisdiction of any one country are termed international commons or global commons. International commons are resource domains shared by several nations, such as the Mediterranean Sea and Antarctica (although recent United Nations environmental treaties have affected the Antarctic regime so that it has some of the characteristics of a global commons). Global commons are resource domains to which all nations have legal access, such as outer space. The distinction between the two is important, especially because international commons are exclusionary while global commons are not.
In this book, Antarctica is discussed as one of four global commons even though it is governed by a regime that admits only a small number of nations and therefore is technically an international commons. Other international commons are primarily regional; for example, only Mediterranean governments participate in the Mediterranean Action Plan. The Antarctic regime has no such regional logic, and no group of nations has recognized territorial claims to the resource domain.
International Regime Formation
The processes that governments follow in making national policy are complex, and adding an international dimension complicates the process further. Some factors have unique attributes that magnify their impact on the formation of international regimes. Three of these factors are particularly germane to this discussion of regime formation for the global commons: the effect of national (i.e., internal) concerns, the accumulation and use of scientific information, and the influence of government and nongovernmental organizations at both the national and international levels. Treaty ratification and compliance following ratification also affect regime formation.
Nations have many international concerns that affect regime formation. For example, one American impetus to participate in forming an Antarctic regime was to have a location for military training in extreme cold that was far away from the Soviet presence in the northern polar regions. Nations must also reconcile domestic interests as well as international ones. For example, the United States refused to sign the 1982 United Nations Convention on the Law of the Sea (Law of the Sea Treaty) in part to protect domestic business interests in deep seabed mining. One of the many reasons why President George Bush refused to sign the Convention on Biological Diversity was a constitutional arrangement peculiar to the United States whereby the states hold much of the power to regulate wildlife conservation and management. President Bush claimed to be unwilling to commit the federal government to a treaty that would rely on the various states for implementation.
There is also a great deal of uncertainty about scientific information on many international and global common pool resources. Resource domains such as outer space and the deep seabeds are often inaccessible, and their sheer magnitude complicates data collection. Sometimes the resources contained within them are so complex that scientists cannot reach conclusions. The disagreement among scientists regarding the impact of chlorofluorocarbons on depletion of stratospheric ozone illustrates this problem. The scientific community could not agree on how to interpret the data it had collected, and thus politicians were able to delay regime decisions to accommodate economic and political pressures.
Risk assessment is a second problem with scientific data. Risk assessment assigns probabilities to predicted outcomes; for example, if Pacific salmon stocks are decreasing, what is the probability that they will drop below the level of recovery within three or five or ten years? Because risk assessment is based on probabilities (that is, assumptions, guesses, and values), policy actors are less able to defend decisions based on risk assessments. Even when all policy actors agree on the data and the level of risk, their willingness to accept that risk may vary. For example, small island nations are likely to endorse the precautionary principle when climate change is discussed; they are risk averse because if global warming does occur, some small island nations could disappear entirely.
Excerpted from The Global Commons by Susan J. Buck. Copyright © 1998 Island Press. Excerpted by permission of ISLAND PRESS.
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