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Property Rights and Natural Resources

By: Richard Barnes
Media of Property Rights and Natural Resources
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Published: 22-04-2009
Format: Hardback
Edition: 1st
Extent: 472
ISBN: 9781841135892
Imprint: Hart Publishing
Series: Studies in International Law
Dimensions: 234 x 156 mm
RRP : £90.00

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Loren Epson

About Property Rights and Natural Resources

Winner of the SLS Peter Birks Prize for Outstanding Legal Scholarship 2009.

The use of private property rights to regulate natural resources is a controversial topic because it touches upon two critical issues: the allocation of wealth in society and the conservation and management of limited resources. This book explores the extension of private property rights and market mechanisms to natural resources in international areas from a legal perspective. It uses marine fisheries to illustrate the issues that can arise in the design of regulatory regimes for natural resources.

If property rights are used to regulate natural resources then it is essential that we understand how the law and values embedded within legal systems shape the development and operation of property rights in practice. The author constructs a version of property that articulates both the private and public function of property. This restores some much needed balance to property discourse. He also assesses the impact of international law on the use of property rights-a much neglected topic-and shows how different legal and socio-political values that inhere in different legal regimes fundamentally shape the construction of property rights. Despite the many claimed benefits to be had from the use of private property rights-based management systems, the author warns against an uncritical acceptance of this approach and, in particular, questions whether private property rights are the most suitable and effective arrangement of regulating of natural resources. He suggests that much more complex forms of holding, such as stewardship, may be required to meet physical, legal and moral imperatives associated with natural resources.

Table Of Contents

Chapter 1: Natural Resources, International Law and Property
1. Some Problems Concerning the Regulation of Natural Resources
2. Property and Sovereignty: Some Modes of Analysis
3. Scope and Orientation of this Study
Chapter 2: The Private Function of Property
1. Introduction
2. Property and Excludability
3. Justifications of Property
(a) Property as a Natural Right
(b) Property as Liberty
(c) Property as Utility
(d) Economic Approaches to Property Rights
(e) Property as Propriety
(f) Property and Pluralism
4. Concluding Remarks
Chapter 3: The Public Function of Property Rights
1. Introduction
2. A Template for the Public Function of Property: The Public Interest
(a) The Nature and Identity of the Community
(i) Plenary Legal Communities
(ii) Types of Plenary Legal Community
(iii) State and International Legal Community Contrasted
(iv) Conclusions on Plenary Legal Communities and their Public Interests
(b) The Categories of Public Interests
(i) Operative Public Interests
(ii) Normative Public Interests
(iii) First Order Public Interests
(iv) Second Order Public Interests
(v) Third Order Public Interests
(vi) The Relationship Between Orders of Public Interest
3. Public Interests and the Public Function of Property
Chapter 4: Reconciling the Private and Public Functions of Property
1. Introduction
2. The Interface Between Private and Public Functions of Property
(a) The Coincidence of Private Rights and Public Interests
(b) Rights as Trumps
(c) Public Interests as Trumps
(d) A Determinable Relationship between Rights and Interests
3. Delimiting Justifications
(a) Physical Factors that Shape the Relationship between the Private and Public Functions of Property
(b) Legal Factors that Shape the Relationship between the Private and Public Functions of Property
(c) Moral Factors that Shape the Relationship between the Private and Public Functions of Property
4. Forms of Property
5. Stewardship
6. Conclusions
Chapter 5: The Influence of Property Concepts in the Development of Sovereign Rights over Ocean Space and Resources
1. Introduction
2. The Grotian Period: The Mare Clausum–Mare Liberum Debate
(a) Background
(b) Doctrinal and Theoretical Considerations
3. Freedom of the Seas
(a) Background
(b) Doctrinal and Theoretical Considerations
4. Consolidating Coastal State Control: Territorial Seas
(a) Background
(b) Doctrinal and Theoretical Considerations
5. The Emergence of Resource Regimes
(a) Continental Shelf
(b) Exclusive Economic Zone
6. Concluding Remarks
Chapter 6: Sovereignty and Property: General Considerations
1. Introduction
2. Territorial Sovereignty as Property
3. The Scope of Sovereignty (or Its Private Incidents)
4. Restrictions on the Exercise of Sovereignty
(a) General Limits on the Use of Natural Resources
(b) Limits on the Use of Natural Resources Under International Environmental Law
5. Sovereignty Bounded
Chapter 7: Sovereignty, Property and Maritime Zones
1. Introduction
2. Maritime Zones and the Scope for Property Rights
(a) Territorial Sea
(b) Archipelagic Waters
(c) Continental Shelf
(d) Exclusive Economic Zone
(e) Maritime Delimitation
3. Concluding Remarks
Chapter 8: Property Rights and Fisheries
1. Introduction
2. Forms of Property in Rights-Based Fisheries Management Systems
(a) Input Controls
(b) Territorial Use Rights in Fisheries
(c) Individual Quotas
(d) Community Development Quotas
(e) Stock Use Rights in Fisheries
(f) Summary
3. Domestic Implementation of Property Rights-Based Management Systems
(a) Australia
(b) Canada
(c) Iceland
(d) New Zealand
(e) United States
4. An Appraisal of Rights-Based Measures
(a) Economic Consequences of Rights-based Measures
(b) Conservation and Management Consequences of Rights-based Measures
(c) Allocational Consequences of Rights-based Measures
5. Legal Aspects of Rights-Based Fisheries
Chapter 9: Conclusion


“... a stimulating, rewarding read.” –  Ludwig Gramlich, Zeitschrift fur Auslandisches Offentliches Recht und Volkerrecht Vol 71

“...Richard Barnes has written the most extensive and detailed book to date on sovereignty and property rights in marine resources under international law…Barnes has done a masterful job of combining theory and history to explain how international law has gradually expanded sovereignty and property rights to one of the two great global commonses: the oceans (the other is the global climate). As such, it makes a great contribution to the larger cross-disciplinary literature on the emergence of property rights in natural resources. It should be read by every legal scholar, economist, and political scientist interested in common pool resource problems.” –  Daniel H. Cole, Law and Politics Book Review Vol.19, No.11, November 9, 2009

“This is a very worthwhile work – it is authoritative, comprehensive, well-structured and eminently excellent work of study and reference for both law students and legal practitioners. It is enlightening and enjoyable to read.” –  Robert Pritchard, ResourcesLaw International July 2009

“This is an impressive piece of scholarship. It should be read by academics and students interested in property law and by those interested in fisheries law.
This is an important book which deserves to be widely read ... a significant contribution to the available literature.
” –  Nigel Bankes, Journal of Energy and Natural Resources Law Volume 27, No 4, 2009

“This is a fascinating and engaging book that takes the reader on a journey into the intricate workings of property rights - the journey is never dull... it is a valuable addition to the available literature in the area of natural resource management.” –  Jona Razzaque, Journal of Environmental Law May 2010

“In this fascinating book, Richard Barnes constructs a version of property rights which articulates both the public and private functions of property in the context of the international legal system. This is a skilfully crafted foray into a under-researched area.
Using fisheries as a motif, Barnes has provided a tremendously valuable roadmap through public, private, domestic and international law. Would that the expertise, insight and creativity demonstrated by Barnes in this book be applied to the protection of other endangered species.
” –  Catherine MacKenzie, The Cambridge Law Journal Vol 70 Part 1

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