Organizing the Commons: Definitions and Assumptions

—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...