Journal of Environmental Law & Litigation : Vol. 21, No. 2, p. 317-382 : New Discourses on Ocean Governance: Understanding Property Rights and the Public Trust
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Date
2006
Authors
Osherenko, Gail
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
I begin with a look at how societal views and laws regarding
ocean space have changed from the sixteenth century to the present.
New ocean discourses are likely to lead to new systems of
ocean governance to deal with new uses and conflicts arising over
ocean space. Section II provides an overview of property rights.
Section III explains the distinction between imperium and dominium
in international law, a distinction central to understanding
the seas as common property (in contrast to public or private
property). Section IV brings international law to bear from the
Geneva Conventions of 1958, signing of the United Nations Convention
on the Law of the Sea in 1982 (1982 Convention), and
subsequent treatment of ocean space under international law.
Section V traces the evolution of property rights and the changing
structure of sovereignty over the seas in U.S. court cases and
statutes including the nineteenth century battles over tidelands,
the 1945 Truman Proclamation unilaterally claiming an extension
of U.S. jurisdiction and control over the continental shelf, and a
series of cases from the 1940s to the present dealing with federalstate
conflicts over the oil and gas resources of the continental
shelf. This section considers the nature of federal and state authority
over the seabed and subsurface, and explores in-depth the
assertions of property rights made by parties to these cases and rejected by the U.S. Supreme Court. Section VI discusses protection
of common property through contract law and the public
trust doctrine. The final section offers recommendations for
ocean governance that reflect twenty-first century discourses on
the importance of marine ecosystems and ways to reduce and
manage conflicts as existing and new uses compete for ocean
space.
Description
66 p.
Keywords
Citation
21 J. ENVTL. L. & LITIG. 317 (2006)