New Discourses on Ocean Rights: Understanding Property Rights, the Public Trust, and Ocean Governance
We are entering a new era of rapidly expanding ocean uses, unprecedented human impact on ocean ecosystems, and increased tensions and conflict among human activities vying for ocean space. New technologies and knowledge are leading to new discourses on ocean rights. This article explores the nature of property rights in the sea, particularly within the exclusive economic zone and high seas, and seeks answers to the critical questions: Can a private party own ocean resources? Can a government sell, transfer or give away marine systems under its jurisdiction? When a nation declares a marine protected area or an exclusive fishing zone, is it exercising rights as the proprietor of marine systems or is it exercising regulatory authority? What is the role of government in regard to allocation of ocean resources? Understanding the essential distinction between imperium (authority) and dominium (property rights) is central to grasping the differences between property rights on land and in the seas. The article concludes that the oceans and ocean resources are common property in contrast to private or public property; thus, the role of the government is that of a trustee, not an owner. We need a new discourse on sea tenure in the 21st century to provide security for new investment in ocean facilities (e.g. wind, wave, and tidal power, aquaculture, and liquid natural gas terminals) while protecting the common property rights of current and future owners of the oceans. The concluding section recommends a new discourse encompassing contract law, the public trust doctrine, ecosystem-based management, and ocean zoning.