Legal Reasoning in Environmental Law
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Legal Reasoning in Environmental Law

A Study of Structure, Form and Language

Douglas Fisher

Legal Reasoning in Environmental Law provides a comprehensive review and analysis of the range of legal reasoning processes to support the understanding, interpretation and application of international, regional and national rules of environmental law.
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Chapter 5: Rules of limitation: Common resources

A Study of Structure, Form and Language

Douglas Fisher


If the principle of sovereignty underpins the way the natural resources of a state and its environment are managed, it is the concept of the freedom of the seas that makes the resources of the seas available to any person or institution. Although it was not until late in the twentieth century that the international community recognised the need for the freedom of the seas to be curtailed through the concept of the common heritage of mankind, a number of judicial institutions recognised earlier indications that limitations were desirable. The existence of sovereign rights carries with it the need to recognise the equivalent sovereign rights of all states. Where states have a common interest – for example in shared water- courses – the existence of a community of interest represents a limitation upon the exercise of sovereign rights either by agreement or as a matter of principle. Let us consider the processes of legal reasoning engaged in by judicial institutions in addressing these two significant areas of rules of limitations as a counterpoint to rules of competence. One of the earliest examples of the judicial resolution of a dispute involving rules of competence was the decision of the Arbitral Tribunal in the Bering Sea Fur-Seals case in 1893. The dispute was between the United States of America on the one hand and Great Britain representing Canada on the other hand. The Pribilov Islands in the Bering Sea were part of the territory of the United States of America. These islands were the territorial habitat of the relevant species of fur-seals.

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