Property rights and natural resources
著者
書誌事項
Property rights and natural resources
（Studies in international law, v. 22）
Hart Pub., 2009
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注記
Includes bibliographical references (p. [403]-413) and index
内容説明・目次
内容説明
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.
目次
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
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