Tuesday, July 3, 2012

"Claiming the Arctic: Principles for Acquiring Territory from the Commons"

Cara Nine, a philosopher and political theorist at University College Cork in Ireland, has posted a draft paper titled Claiming the Arctic: Principles for Acquiring Territory from the Commons. The paper challenges the core values and principles that lay behind the territorial claims to high seas areas—in the Arctic and elsewhere—made under the United Nations Convention on the Law of the Sea. It’s an interesting read, especially in light of the current push for the U.S. to finally ratify the treaty. Here’s the abstract:

The Arctic is increasingly seen as a commons open to territorial appropriation by states. For example, countries such as Russia, Denmark (via Greenland), and Canada claim parts of the Arctic on the basis of continental shelf features. Political and legal resolutions regarding the Arctic will set legal precedence for territorial claims made to other significant common regions, such as vast areas of the open sea.

The underlying issue is not which group should control the Arctic region but rather if any group should. To answer to this question, we must know when it is legitimate for a group to acquire territorial rights from the commons. The goal of this essay is to establish a set of principles governing the original acquisition of territorial rights over a region that is in the commons. Rather than appealing to property rights, contracts, or proviso conditions, I instead base my arguments on the moral permissibility of a system of territorial rights. The permissibility of a system of territorial rights is based on three fundamental values: the promotion of peace, commerce and trade, and stewardship over resources. Taking these values into consideration, we can take up a default position against rules of acquisition that undermine one or more of these values and a default position in favour of rules of acquisition that do not undermine these values. Next, I establish that certain resources, those that are non-renewable and in areas that have limited human uses (such as the seabed) are less susceptible to original acquisition arguments than other kinds of resources. Finally, I reject the argument that states can claim their continental shelf as territory and arguments for territorial acquisition based on labour-mixing. Territorial acquisition beyond the state's exclusive economic zone (200 miles from shore) is largely unjustified. In conclusion, I briefly propose that a limited-tenure property rights regime based on Antarctic political principles would present a better rights-based system over these regions.

-- Michael Burger

http://lawprofessors.typepad.com/environmental_law/2012/07/claiming-the-arctic-principles-for-acquiring-territory-from-the-commons.html

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