Remedying Harm to International Common Spaces and Resources: Compensation and Other Approaches
ALAN E. BOYLE
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.
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____________________