Edited by Malgosia Fitzmaurice, David M. Ong and Panos Merkouris
Chapter 23: Environmental Protection and the Concept of Common Concern of Mankind
Michael Bowman Introduction In every political community, not to mention the legal system which serves it, it is necessary for decisions to be made regarding the distribution of power, authority and property amongst its constituent members. Within the more highly developed societies, as exemplified by many contemporary constitutional arrangements at the national level, ultimate power and authority tend to be concentrated in the hands of centralised institutions, with individual constituents enjoying only a limited capacity to influence the overall complexion of government policy through such opportunities as are afforded them for participation in the ongoing democratic process. Property rights, on the other hand, in general remain widely distributed, and are usually protected from undue encroachment along with other forms of constitutionally entrenched entitlement.1 In sharp contrast to this scenario, however, the international political community remains locked in a more primitive stage of development, characterised by a decentralised approach to both power and property rights. There is a profound reluctance to yield extensive authority to global (or even regional) institutions, and an enduring insistence upon the importance of national sovereignty,2 as reflected in a primarily territorial conceptualisation of international personhood. Furthermore, even though the vast expanses of the oceans have traditionally been regarded as representing the property of all states (res communis), substantial incursions into this regime of communality – in the form of progressive extensions of individual sovereign rights – have been a notable feature of recent times,3 and continue, indeed, to the very present.4 The resources of these common...
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