Harm to the Environment: The Right to Compensation and the Assessment of Damages

By Peter Wetterstein | Go to book overview

5
Remedying Harm to International Common Spaces and Resources: Compensation and Other Approaches

ALAN E. BOYLE


1. INTRODUCTION

There is no single approach to the problem of remedying harm to international common spaces and their resources which presents itself as self-evidently correct. The purpose of this Chapter will be primarily to review the possible options, with a view to assessing their comparative utility, and to raise perhaps the most important question, which is whether we want to look at the issue in terms of a right to compensation and assessment of damages at all. A second major question is whether, if we do, an approach which emphasizes the responsibility of states or the liability of individuals should be preferred. Lastly, and remembering that it is the global commons we are addressing and not harm to the territory of other states, a third question of some importance is who will assume responsibility for seeking whatever form of redress is potentially available.

Preliminary to all these questions, however, are two further issues: what are 'common spaces and resources', and does international law protect them per se, or only in so far as the right of individual states to make use of them is affected.


1.1. What are Common Spaces and Resources?

In contemporary international law there are now three different, and in some ways competing, senses of the term 'common spaces' or 'global commons': (i) the classical or Grotian doctrine of common property exemplified by the high seas and their resources, but also applicable to outer space and, arguably, Antarctica;1 (ii) common heritage, a revisionist version of the Grotian doctrine applied

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1
See 1982 UN Convention on the Law of the Sea (hereafter UNCLOS 1982), Art. 87; 1958 Geneva Convention on the High Seas (hereafter GCHS 1958), Art. 2; 1967 Treaty of Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), Arts. I, 2; 1959 Antarctic Treaty, Arts. 2-4; 1980 Convention for the Conservation of Antarctic Marine Living Resources (hereafter CCAMLR 1980).

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