Political Uncommons

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* Book: The Political Uncommons. The Cross-Cultural Logic of the Global Commons. Ashgate, 2010

URL = http://www.ashgate.com/isbn/9780754671398


"In The Political Uncommons, Kathryn Milun presents a cultural history of the global commons: those domains, including the atmosphere, the oceans, the radio frequency spectrum, the earth's biodiversity, and its outer space, designated by international law as belonging to no single individual or nation state but rather to all humankind. From the res communis of Roman property law to early modern laws establishing the freedom of the seas, from the legal battles over the neutrality of the internet to the heritage of the earth's genetic diversity, Milun connects ancient, modern, and postmodern legal traditions of global commons. Arguing that the logic of legal institutions governing global commons is connected to the logic of colonial doctrines that dispossessed indigenous peoples of their land, she demonstrates that the failure of international law to adequately govern the earth's atmosphere and waters can be more deeply understood as a cultural logic that has successfully dispossessed humankind of basic subsistence rights. The promise of global commons, Milun shows, has always been related to subsistence rights and an earth that human communities have long imagined as 'common' existing alongside private and public domains. Utilizing specific case studies, The Political Uncommons opens a way to consider how global commons regimes might benefit from the cross-cultural logics found where indigenous peoples have gained recognition of their common tenure systems in Western courts."


Introduction; An emergent global commons: biodiversity – a case study of how culture becomes law and nature becomes empty space; Part I Res Nullius/Terra Nullius and the Epistemic Imaginary of International Law: Terra nullius, res nullius and res communis: a conceptual confusion of terms; Res nullius – the tragedy of the (modern global) commons: from Grotius and the high seas to the internet; Covering res that move: theory and practice: whales as res divini juris; The law of the seas extended vertically into the law of outer space and the law of outer space reterritorializing the Earth. Part II Two Cases of the Revocation of Terra Nullius: the Western Sahara case: genealogies captured by the census; Negotiations and the Mabo case: comparative epistemic imaginaries. Conclusion: beyond empty space – expanding the epistemological repertoire of the global commons through biofigural and technological imaginaries; Bibliography; Index.


review by Jillian Osborne

"To understand what 'uncommons' are, we first need to revisit the understanding of 'commons' as collectively shared and managed resources. In her book, Kathryn Milun focuses on the spatial imagery of the global commons. Outer space, radio frequency waves, the earth's atmosphere, the high seas, the internet and biodiversity all form part of what is otherwise known to be res communis, or the public domain.

Milun ponders: "Why does international law sustain such an overlap in its definition of globally common property whose wealth is harnessed by human systems? On the one hand, global commons are imagined as in a more or less 'blank slate' condition where there are no relevant institutions because they 'belong to no one' (res nullius) and, on the other hand, global commons are seen as property with institutionalized restrictions on user rights because they belong to everyone (res communis)." With international law likened to a radar, the global commons are not picked up on the radar of statist territorial thinking because international law maintains the commons as outside effective forms of governance, as free open-market domains.

Milun sees the claim in 2004 by the Inuit people that the US was threatening their existence by contributing substantially to global warming as the beginning of a shift from the perception of an environmental problem to an assault on human rights. Succeeding chapters pick up the doctrines from ancient Rome, link them to the theories of Locke and Hobbes, and philosopher and geographer Kant, and draw them into modern international law, endeavouring by analysis to establish an understanding of the concepts of international law in relation to the global commons.

The book examines attempts via international law to legalise use of the commons through conventions and treaties: for example, the UN Convention on Whaling, the 1972 Liability Convention and subsequent space law providing for states to pay victim states compensation for damage caused by any nuclear-powered satellite emanating from their territories, and the Moon Treaty 1979. While, internationally, states have on the one hand endeavoured with soft law to control the use of the earth's commons, they have on the other dismissed the doctrine of terra nullius - in the International Court of Justice's decision in the Western Sahara case and the domestic High Court of Australia's decision in Mabo.

The conclusion brings the reader back to the Inuit claim, and a reasoning that the earth's commons would be managed better by property law rather than liability under international law, a conclusion recapping the writer's reasoning of the preceding chapters.

In essence, the book endeavours through philosophical analysis to bring some rationale to attempted control of the earth's commons by international law. Well-researched and elegantly written, it yet contains many complicated, descriptive comparisons for anyone other than international, environmental or property scholars. Having said that, I wouldn't advise that readers outside academia dismiss it as too much like a textbook. Lawyers are used to reading textbooks, and this book gives a good and quick insight into how the earth's commons are being managed or fail to be. But be prepared, it is unable to reach a conclusion beyond that." (http://www.lawsociety.com.au/resources/journal/archives/Issue/640944?IdcService=GET_FILE&dDocName=640944&RevisionSelectionMethod=Latest&noSaveAs=1#02)