Journal of Environmental Law & Litigation : Vol. 21, No. 2, p. 317-382 : New Discourses on Ocean Governance: Understanding Property Rights and the Public Trust
Year: 2006
Type: article
Abstract: I begin with a look at how societal views and laws regarding \nocean space have changed from the sixteenth century to the present. \nNew ocean discourses are likely to lead to new systems of \nocean governance to deal with new uses and conflicts arising over \nocean space. Section II provides an overview of property rights. \nSection III explains the distinction between imperium and dominium \nin international law, a distinction central to understanding \nthe seas as common property (in contrast to public or private \nproperty). Section IV brings international law to bear from the \nGeneva Conventions of 1958, signing of the United Nations Convention \non the Law of the Sea in 1982 (1982 Convention), and \nsubsequent treatment of ocean space under international law. \nSection V traces the evolution of property rights and the changing \nstructure of sovereignty over the seas in U.S. court cases and \nstatutes including the nineteenth century battles over tidelands, \nthe 1945 Truman Proclamation unilaterally claiming an extension \nof U.S. jurisdiction and control over the continental shelf, and a \nseries of cases from the 1940s to the present dealing with federalstate \nconflicts over the oil and gas resources of the continental \nshelf. This section considers the nature of federal and state authority \nover the seabed and subsurface, and explores in-depth the \nassertions of property rights made by parties to these cases and rejected by the U.S. Supreme Court. Section VI discusses protection \nof common property through contract law and the public \ntrust doctrine. The final section offers recommendations for \nocean governance that reflect twenty-first century discourses on \nthe importance of marine ecosystems and ways to reduce and \nmanage conflicts as existing and new uses compete for ocean \nspace.
Author: Osherenko, Gail
Language: English
Subfield: Management, Monitoring, Policy and Law
Field: Environmental Science
Domain: Physical Sciences
Open Access status: green
OpenAlex ID: W6982692158