Journal of Environmental Law & Litigation : Vol. 21, No. 2, p. 317-382 : New Discourses on Ocean Governance: Understanding Property Rights and the Public Trust
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.