Academic journal article Duke Environmental Law & Policy Forum

Grasping for the Heavens: 3-D Property Rights and the Global Commons

Academic journal article Duke Environmental Law & Policy Forum

Grasping for the Heavens: 3-D Property Rights and the Global Commons

Article excerpt


With the attention of policymakers worldwide focused on environmental problems that transcend national borders and reach even to the heavens' heights, an examination of property rights solutions to global problems is appropriate. The institution of private property is an effective way of dealing with many environmental problems.(1) However, before the efficacy of property rights solutions to global environmental problems can be addressed, the prospects for the emergence of property rights in the global commons must be analyzed. Predictions about the effectiveness of a property rights regime for the global commons are of little relevance, if such a regime cannot arise or is unlikely to arise at the global level. Thus, this article is about institutions and how they evolve--specifically, how the institution of private property emerges and evolves and whether or not the institution might emerge at the global level. This inquiry does not concern property rights in their broadest sense; some kind of rights will surely develop in the global commons.(2) Rather, this article addresses the more interesting question regarding the extent to which a future people will develop property institutions that support a liberal order, one that accommodates efficiency-improving market incentives and yields wealth-enhancing gains from voluntary trade. In other words, this article addresses the prospects for the emergence of 3-D property rights, private rights that can be defined, defended, and divested or transferred.(3)

An analysis of the likelihood that 3-D property rights will emerge in the global commons of the earth's atmosphere is informed by the emergence of 3-D environmental rights a little closer to home.(4) This article uses lessons from human experience with resources on earth to forecast institutional change in the heavens. Informed by earthly experience, this article seeks to answer the following two questions: (1) can 3-D property rights emerge for heavenly assets, or the global atmosphere, and (2) how will such property rights emerge?

Part II examines environmental property rights in the abstract and considers the prospects for expanded trade in such rights. This part analyzes whether 3-D property rights for heavenly assets, such as air quality, have existed in the past. Part II then describes the degree to which 3-D property rights currently exist, finding that most `property rights' markets today trade in regulatory property rather than private property. Finally, this part explains why political markets often intervene and stifle the emergence of private 3-D rights. Markets in 3-D property rights are often destroyed by the passage of statutes and regulations. However, while politics often usurps the common law creation of 3-D rights, there are reasons that the existence of 3-D property rights in the global commons may be more likely.

Part III describes the process by which the institution of property rights emerges and examines specifically how a property rights regime might emerge for the global atmosphere. Part III begins by describing a simple pattern of property rights development and discusses the evolution of 3-D property rights in the context of environmental resources. Then, this part examines attempts to protect the ozone layer and limit greenhouse gas emissions in an effort to identify the extent to which property rights are evolving in the global commons.

Part IV analogizes to notions of hunter/gatherers and food producers to draw some final conclusions about property rights evolution. This part uses these notions to explain why the global commons will likely remain a commons for a long time but will eventually yield to a regime of public and then private property rights.


With regard to the recognition of 3-D property rights, there are several questions to consider. First, have 3-D property rights existed in the past for specific elements of air or water quality and other environmental resources? …

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