View source for 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.'''

URL = http://www.earthsystemgovernance.org/lund2012/LC2012-paper94.pdf


=Abstract=

"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."


=Excerpt=

==[[Nondominium]]==

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)


=More Information=

* C. Cook, [[Nondominium]]: establishing consensus and collaboration for the Caspian nations, The  Institute for Security and Resilience,  Resiliblog Editor, on October 4, 2011.19



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