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The Maps of International Law: Perceptions of Nature in the Classification of Territory

Published online by Cambridge University Press:  24 July 2014

KARIN MICKELSON
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Abstract

This article explores the understanding of nature reflected in the international legal classification of territory, as reflected in the doctrines of terra nullius, res communis, and the common heritage of mankind. It provides an overview and analysis of each of these concepts, noting the frequently problematic role they have played in legitimating the exercise of political and economic power. It then analyses the continuities and discontinuities between these categories. It argues that, despite surface changes, a narrow instrumental view of nature and the environment continues to be deeply embedded in much of our current thinking about jurisdiction over territory, and can be seen as constituting one of the ongoing barriers to thinking about the environment in more innovative and sustainable ways.

Keywords

common heritage of mankindcommonsres communisterra nulliusterritory
Type
INTERNATIONAL LEGAL THEORY: Symposium: Locating Nature
Information
Leiden Journal of International Law , Volume 27 , Issue 3 , September 2014 , pp. 621 - 639
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 ‘Locating Nature: Making and Unmaking International Law Project Overview’, 4 August 2012, (on file with the author).

2 B. Santos, ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, (1987) 14 Journal of Law and Society 279, at 282.

3 J. Agnew, Geopolitics: Re-Visioning World Politics (2003), 15.

4 C. Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, (2003), 86.

5 A fourth category might be said to consist of the sui generis regime applicable to Antarctica under the Antarctic Treaty System. Pursuant to Art. IV(2) of the Antarctic Treaty itself, while the Treaty remains in force existing claims to territorial jurisdiction are in essence suspended and new claims to jurisdiction are precluded. Furthermore, Art. II of the Protocol on Environmental Protection to the Antarctic Treaty provides that the parties ‘designate Antarctica as a natural reserve, devoted to peace and science’. While Antarctica poses some interesting challenges to traditional ways of categorizing jurisdiction, its unique character requires a more extensive analysis than is possible in a broad survey of the kind undertaken here. For a recent analysis of the regime from a jurisdictional perspective, see K. N. Scott, ‘Managing Sovereignty and Jurisdictional Disputes in the Antarctic: The Next Fifty Years’, (2009) 20 YBIEL 3.

6 C. Jacob, The Sovereign Map: Theoretical Approaches in Cartography Throughout History (2006), 14.

7 While I do not engage with the category of sovereign jurisdiction, I would argue that an examination of these categories can enhance our understanding of sovereignty itself. Antony Anghie has argued that the notion of sovereignty emerged in the colonial encounter because sovereignty was defined as that which non-European peoples lacked, in Imperialism, Sovereignty, and the Making of International Law (2007). Similarly, it might be argued that it is only in contrast to those areas that lie outside of sovereign control that the notion of territorial sovereignty was given its contours and content.

8 Jacob notes that the map can be seen as ‘a symbolic mediation between humans and their spatial environment, but also between individuals who can communicate through this visual medium.’ See Jacob, supra note 6, at 8.

9 Such a survey would entail a foray into a wide range of sub-disciplines of international law, geography, environmental studies, history, and philosophy, as well as transdisciplinary fields such as legal geography.

10 While scholars draw a distinction between res nullius and terra nullius, the terms seem to be used more or less interchangeably in most international law literature; I follow that usage here.

11 See for example M. Borch, ‘Rethinking the Origins of Terra Nullius’, (2001) 32 Australian Historical Studies 117, at 222; A. Fitzmaurice, ‘The Genealogy of Terra Nullius’, (2007) 38 Australian Historical Studies 1, at 129.

12 The other two are accretion and prescription. See M. G. Kohen and M. Hébié, ‘Territory, Acquisition’, in Max Planck Encyclopedia of Public International Law (2012).

13 This distinction was recognized by the International Court of Justice in Western Sahara, Advisory Opinion, 16 October 1975, [1975] ICJ Rep. 12.

14 See the discussion of the debate regarding discovery in W. G. Grewe, The Epochs of International Law (2000), 250–5. Grewe notes that ‘[t]he question whether and what time discovery was recognized as a fully valid title for the acquisition of territory was always controversial, and remains so even today, at 251.

15 Ibid., at 229–50.

16 Nevertheless, most commentators on both sides of the debate seemed to remain resolutely enmeshed in a way of thinking that viewed non-European peoples as inferior. See Boisen, C., ‘The Changing Moral Justification of Empire: From the Right to Colonise to the Obligation to Civilise’, (2013) 39 History of European Ideas 335CrossRefGoogle Scholar. However, few viewed them as being so inferior as to lack any claim whatsoever to the lands they inhabited.

17 The International Court of Justice expressed this view in relation to the period of Spanish colonization of the Western Sahara in the late nineteenth century in the Western Sahara Advisory Opinion, in which it pointed out that ‘[w]hatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius’. See Western Sahara case, supra note 13, at 39, para. 80. The Court went on to note that in situations of this kind, ‘the acquisition of sovereignty was not generally considered as effected unilaterally through “occupation” of terra nullius by original title but through agreements concluded with local rulers’.

18 See Banner, S., ‘Why Terra Nullius? Anthropology and Property Law in Early Australia’, (2005) 23 Law & Hist. Rev. 95CrossRefGoogle Scholar.

19 Mabo and Others v. State of Queensland (No. 2) (1992) 107 ALR 1. There have been many critical assessments of the reasoning in the judgment. See, e.g., Ritter, D., ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’, (1996) 18 Sydney L. Rev. 5Google Scholar; Cunliffe, E., ‘Anywhere But Here: Race and Empire in the Mabo Decision’, (2007) 13 Social Identities 751CrossRefGoogle Scholar.

20 Exposé Oral de M. Bedjaoui, in International Court of Justice, Pleadings, Oral Arguments, Documents Western Sahara., Vol. 5 (1975), 448, at 473. I am indebted to Judge Bedjaoui for providing the translation from the ICJ Archives, CR 75/19.

21 See, e.g., Baldwin, A., ‘Carbon Nullius and Racial Rule: Race, Nature and the Cultural Politics of Forest Carbon in Canada’, (2009) 41 Antipode 231CrossRefGoogle Scholar.

22 Indian and Northern Affairs Canada, Report of the Royal Commission on Aboriginal Peoples, (1996), Vol. 1, App. E, Summary of Recommendations.

23 Ibid., Recommendation 1.16.2.

24 V. Plumwood, Environmental Culture: The Ecological Crisis of Reason (2002), 104.

25 Banner, supra note 18, at 105.

26 Ibid., at 107–8.

27 Plumwood, supra note 24, at 104.

28 F. de Vitoria, ‘De Indis’, in Pagden, A. and Lawrance, J. (eds.), Political Writings (1991), 290Google Scholar.

29 Ibid., at 290–1.

30 J. Locke, Two Treatises of Government, (1823), at 118, para. 33, available at <www.efm.bris.ac.uk/het/locke/government.pdf>, Second Treatise.

31 Ibid., at 122, para. 41. Barbara Arneil has argued that Locke's analysis of property ‘was written to justify the seventeenth-century dispossession of aboriginal peoples of their land, through a vigorous defence of England's “superior” claim to ownership’. B. Arneil, John Locke and America: The Defence of English Colonialism (1996), 2.

32 Ibid., at 122, para. 42.

33 Indigenous Peoples of Africa Coordinating Committee, ‘The Doctrines of Discovery, “Terra Nullius” and the legal marginalisation of indigenous peoples in contemporary Africa’, Statement to the 11th Session of the UN Permanent Forum on Indigenous Issues, 7–18 May 2012, available at <www.docip.org/gsdl/cgi-bin/library?a=q&c=cendocdo&q=AgnesLEINA>.

34 Ibid.

35 Schermaier, M. J., ‘Res Communes Omnium: The History of an Idea from Greek Philosophy to Grotian Jurisprudence’, (2009) 30 Grotiana 20CrossRefGoogle Scholar.

36 H. Grotius, The Freedom of the Seas, Or The Right Which Belongs to the Dutch to Take Part in the East Indian Trade, (1916).

37 While Grotius’ way of thinking about the seas as res communis may not have been wholly original, it was innovative in a variety of ways. See Schermaier, supra note 35.

38 Grotius, supra note 36, at 7.

39 Ibid., at 7.

40 Ibid., at 8.

41 This may have been in part for practical reasons; this treatise was written and published anonymously, while Grotius was employed by the Dutch East India Company. However, as Ileana Porras points out, while the company may have be interested in obtaining ‘a work of apologia or propaganda’, ‘[w]hat Grotius produced was rather more complex and multifaceted’. I. M. Porras, ‘Constructing International Law on the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius’ De Iure Praedae – The Law of Prize and Booty, Or “On How to Distinguish Merchants from Pirates”’, (2005–6) 31 Brooklyn JIL 741, at 746.

42 For an insightful analysis of the role of trade and commerce in The Law of Prize generally, see Porras, ibid., at 756–74.

43 Grotius, supra note 36, at 27.

44 Ibid., at 27.

45 Ibid., at 28.

46 Ibid., at 43.

47 Ibid.

48 This was not, however, an easy or quick process; a heated scholarly debate known as the ‘Battle of the Books’ followed the publication of Mare Liberum in 1608. See van Nifterik, G. and Nijman, J., ‘Introduction: Mare Liberum Revisited (1609–2009)’, (2009) 30 Grotiana 3CrossRefGoogle Scholar, at 5–6.

49 E. Vattel, The Law of Nations (1834), 125. While acknowledging the possibility of certain nations asserting claims to ‘dominium’ based on their power to exclude vessels of other states, Vattel distinguishes between the power to exclude and the legitimate right to do so.

50 Ibid.

51 Ibid., at 125–6.

52 Ibid., at 127.

53 Ibid.

54 Ibid.

55 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3.

56 Ibid., Art. 87.

57 UNCLOS also provided specific standards on fish stocks that do not fit neatly within existing jurisdictional limitations. In relation to straddling fish stocks, defined in Art. 63 as ‘stocks which occur within the EEZ of two or more coastal states or both within the EEZ and in an area beyond or adjacent to it’, UNCLOS imposes a duty for states to co-operate to agree on conservation measures. A similar though not identical obligation is imposed in relation to highly migratory fish stocks such as tuna, with states required ‘to cooperate to ensure conservation and optimum utilization of such stocks’ both within and beyond the EEZ (Art. 64).

58 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 2167 UNTS 3.

59 Specifically, it was designed to address a host of limitations in the existing framework, ranging from technical problems such as insufficiently selective gear through structural issues such as overcapitalization and excessive fleet sizes right up to fundamental inadequacies in the legal and policy framework, including inadequate management of high seas fisheries and overutilization of resources.

60 See, e.g., Juda, L., ‘The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique’, (1997) 28 Ocean Development & International Law 147CrossRefGoogle Scholar.

61 Helmut Tuerk discusses some historical antecedents to the concept, including the work of Andrés Bello, in Reflections on the Contemporary Law of the Sea (2012), 31–2.

62 I use ‘frontier’ deliberately, and advisedly, as a problematic term that conjures up images of expansion and exploitation. There is a significant body of literature that explores and problematizes the idea of the frontier; see for example Russell, L. (ed.), Colonial Frontiers: Indigenous/European Encounters in Settler Societies (2001)Google Scholar.

63 Wolfrum, R., ‘The Principle of the Common Heritage of Mankind’, (1983) 43 ZaöRV 312Google Scholar, at 312.

64 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 610 UNTS 205.

65 See Cocca, A. A., ‘The Advances in International Law Through the Law of Outer Space’ (1981) Journal of Space Law 13Google Scholar, at 14–17.

66 The Preamble highlights the recognition of ‘the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purpose’, for example, and Art. II stipulates that ‘[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means’.

67 Cocca, supra note 65, at 20.

68 UN General Assembly, 22nd session, First Committee 1515th Meeting, UN Doc. A/C.1/PV.1515, (1967).

69 Ibid., at 12.

70 Ibid.

71 Ibid., at 7.

72 See in particular his analysis of the jurisprudential basis of the Truman Proclamation, ibid.

73 1958 Geneva Convention on the Continental Shelf, 499 UNTS 311, Art. 1.

74 See supra note 68, at 8.

75 Ibid., at 2.

76 Ibid., at 12.

77 Ibid.

78 Ibid.

79 UNCLOS, supra note 55, Art. 1.

80 Ibid., Art. 137(1).

81 Ibid., Art. 137(2).

82 Ibid., Art. 156.

83 See for example Wolfrum, supra note 63.

84 Joyner, C., ‘Legal Implications of the Concept of the Common Heritage of Mankind’, (1986) 35 Int’l & Comp. L.Q. 190CrossRefGoogle Scholar, at 199. In contrast to his discussion of state practice, Joyner acknowledges that ‘a plethora of rhetorical assertions and ideological pronouncements have been made over the last decade regarding the CHM, as well as its philosophical and legal foundations’, at 198.

85 UN Doc. A/RES/47/65 (1992).

86 1994 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 1836 UNTS 3.

87 With regard to representation, one concern had been that the Assembly (which was to operate on a one nation, one vote basis) had the power to establish general policies; the Agreement qualifies the general policy-making powers of the Assembly by requiring collaboration of the Council. Another concern was that the Council would not have permanent or guaranteed representation by the United States; the Agreement guarantees a seat on the Council for ‘the State, on the date of entry into force of the Convention, having the largest economy in terms of gross domestic product’ (which would have been the US). Ibid., Ann., Sec. 3.

88 Shackelford, S. J., ‘The Tragedy of the Common Heritage of Mankind’, (2009) 28 Stanford Environmental Law Journal 109Google Scholar, at 114.

89 See, e.g., Franckx, E., ‘The International Seabed Authority and the Common Heritage of Mankind: The Need for States to Establish the Outer Limits of Their Continental Shelf’, (2010) 25 International Journal of Marine and Coastal Law 543CrossRefGoogle Scholar. Franckx characterizes the legal status of the principle as weak, but argues that states parties to UNCLOS ‘should seize every opportunity to prevent the further erosion of what remains of the principle’, at 566.

90 See, e.g., K. Beslar, The Concept of the Common Heritage of Mankind in International Law (1998). For a critique of some of these attempts, see K. Mickelson, ‘Co-Opting Common Heritage: Reflections on the Need for South-North Scholarship’, in Aginam, V. O. and Okafor, O. C. (eds.), Humanizing Our Global Order: Essays in Honour of Ivan Head (2003), 112Google Scholar.

91 K. Milun, The Political Uncommons: The Cross-Cultural Logic of the Global Commons (2008), 58.

92 For a recent example see B. H. Weston and D. Bollier, Green Governance: Ecological Survival, Human Rights and the Law of the Commons (2013).

93 See, e.g., Schrijver, N. and Prislan, V., ‘From Mare Liberum to the Global Commons: Building on the Grotian Heritage’, (2009) 30 Grotiana 168CrossRefGoogle Scholar.

94 See Santos, supra note 2, at 285.