Using Nondominion to Evolve from Local to Global Commons
* Paper: From Local to Global Commons. Applying Ostrom’s Key Principles for Sustainable Governance. By Valnora Leister and Mark Frazier.
"This paper explores a possible new local-to-global system for the equitable governance of the “common pool resources.” As normally understood, the “Commons” refers to resources that are owned or shared among communities. Such resources (forests, fisheries, etc.) when located within national boundaries are subject to that country’s laws. Areas beyond national jurisdiction, including the high-seas, Antarctica, the ocean sea-bed, outer space and the Earth’s environment, are known as “Common Heritage of Mankind” (CHM) and subject to Public International Law (PIL). The object and subject of traditional PIL is the nation-state. However, since the 1972 Conference for the Human Environment, individuals and Non-Governmental Organizations (NGO’s) have been legally recognized under PIL as having direct responsibility for protection of the global environment, by working for transparency and accountability in its management. With this opening for direct participation by individuals and NGOs in working for sustainable management of the global Commons, it may be now feasible to extend the precedents identified by Nobel Laureate Elinor Ostrom for successful economic governance of local common pool resources to wider CHM areas.
A recently developed legal concept – nondominium – offers a framework for recognizing user rights toward this end. Combining Ostrom’s principles with this new approach for shared use of the Commons promises to give a more solid legal grounding for the 5 “As” (Architecture, Adaptiveness, Accountability, Allocation and Access) in the governance of the global commons for the benefit of humanity."
Valnora Leister and Mark Frazier:
"A new legal framework – Nondominium – offers an approach for sharing revenues from resource development in arenas beyond the effective actual (or de jure) control of national jurisdictions. Building upon ideas advanced by Chris Cook, a fellow of the Institute for Security and Resilience Studies at the University College of London, the new framework focuses on veto rights – rather than recognized ownership claims – to ensure development of common pool resources (or resources with conflicting national ownership) on a basis of mutual benefit. The nondominium approach may have special applicability as a framework for developing space and ocean sea-bed resources to benefit humanity in the near and far future.
Under a nondominium framework for economic development of CHM resources, each country interested in receiving benefits could appoint a representative to an association of beneficiaries.
A trustee (custodian) for the CHM would be elected by the representatives to oversee the legal operation of a collective entity. The representatives would also appoint a Manager, for a parallel partnership venture, to identify opportunities to develop the common pool resource in accord with a transparent revenue-sharing formula. Each representative would have power to exercise a veto with regard to the resource development proposal(s) circulated by the manager.
Once an agreed formula (non-vetoed by the countries) emerged for recognizing needed inputs, and for overall revenue-sharing, the manager of the nondominium partnership would arrange open tenders to seek economic partners to maximize the value of the common pool resources.
These tenders would be neutral with regard to the nationality or domicile of service providers and investment partners. Revenues from ensuing activities would be distributed to the association members on the originally-agreed basis. Oversight of compliance would rest with the nondominium’s trustee, who could apply Ostrom’s key principles of successful collective choice agreements and monitoring by independent auditors.
The nondominium framework, in these ways, would conform with the requirements of international law that no country or combination of countries has the power of dominant control over relevant common pool resources.
It seems particularly suited for easing disputes in highly polarized or contentious settings.
Since the breakup of the Soviet Union, for example, conflicting claims have arisen among what are now five Caspian-littoral nations (including Azerbaijan, Kazakhstan and Turkmenistan). The Nondominium framework as originally advanced by Cook envisions that the littoral Caspian nations “should form a Caspian Foundation legal entity, and commit to that entity all existing rights in respect of the use, and the fruits of use (usufruct) of the Caspian Sea, and everything on it, in it or under it. The Caspian Foundation would act as custodian or steward and the Caspian nations would have agreed governance rights of veto.”
As Cook has noted, “the proposed negative or passive veto right of stewardship differs fundamentally from conventional property rights of absolute ownership and temporary use under Condominium. Moreover, it does not confer the active power of control held under common law by a Trustee on behalf of beneficiaries, and the legal complexities and management conflicts which accompany that status.”
In parallel with the Foundation’s custodial role, a Caspian Partnership framework agreement would be established by the member countries to maximize the value of developing the resources. It would “simply be an associative framework agreement within which Caspian nations self-organize to the common purpose of the sustainable development of the Caspian Sea,” Cook’s has stated. “The Caspian Partnership agreement would comprise a master framework agreement within which a myriad of associative agreements between the Caspian littoral nations individually or severally would be registered.”
A similar transnational opportunity for application of the nondominium framework exists in the Sudan, with regard to disputed oil reserves between the original country of Sudan and the new breakaway nation of South Sudan. There, a nondominium framework would sidestep the question of ownership of disputed oil resources, in favor of a balanced (i.e. non-vetoed by either side) revenue-sharing system within which private sector investors and partners could then operate. This legal innovation for development of common pool resources could encourage Ostrom’s user association-based systems of economic governance to more rapidly advance in outer space, the oceans, and other Common Heritage of Mankind (CHM) areas." (http://www.earthsystemgovernance.org/lund2012/LC2012-paper94.pdf)
See also: Nondominium
From the conclusion
"Areas recognized as being the heritage of mankind are defined by treaties as falling outside of nation-state jurisdiction and ownership, and are to be instead developed on a basis that benefits all human beings. Their CHM status reflects a shared aim of holding the resources in trust for future generations, and a corresponding desire to prevent monopolization by individual nation states or corporations.
A balanced approach to developing CHM areas appears needed. As private interest grows in developing outer space resources, and in creating “seasteading” communities on the high seas, the combination of Elinor Ostrom’s economic governance strategies with nondominium legal structures can lead to a new basis for common pool resources to be developed on a basis benefiting all of humanity.
Among the open issues to resolve are the following:
• Will countries with an interest in economic development of CHM resources explore user associations and nondominium-inspired legal structures to encourage private sector partnerships for humanities frontiers, on a success-sharing basis?
• Will they be able to find an equitable (non-vetoed) formula for sharing of revenues from economic governance of CHM resources?
• Can some of the revenue-sharing and technology-sharing provisions adopted by the Seabed Authority be a basis for emergent nondominium frameworks?
• Should global NGOs take a lead in organizing nondominium partnerships for the CHM areas, instead of nation states, given that CHM areas are defined as outside state control and jurisdiction?
• How can transparent, internationally-respected systems be established to ensure that the 21 rights of future generation and Humanity be protected?
Advances in communications and information technologies are bringing new grassroots participants to international decisionmaking, in contrast to patterns established in past centuries.
NGOs and civil society are claiming a more active role in international issues. The New Humanitarian International Order recognizes NGO’s as subjects of the Public International order, even if they do not have legal personality.
As the Internet and communication technologies spread, and the participation of civil society and NGOs in international matters expands, opportunities are emerging to combine Ostrom’s principles with nondominium legal agreements to ensure a more transparent equitable use of common pool resources. Together, they offer new promise for realizing the 5 “As” (Architecture, Adaptiveness, Accountability, Allocation and Access) needed for effective governance of the Commons for the benefit of humanity. (http://www.earthsystemgovernance.org/lund2012/LC2012-paper94.pdf)
- C. Cook, Nondominium: establishing consensus and collaboration for the Caspian nations, The Institute for Security and Resilience, Resiliblog Editor, on October 4, 2011.19