Research Post 8 : Res Communis, Terra Nullius, and the Scope of the Project

I spent my past two blog posts exploring the secondary and primary source literature regarding the role of terra nullius in the Svalbard negotiations.  In this post, I will situate that work in the broader scope of my research project.  In my earlier blog posts, I proposed broadening my project beyond terra nullius to explore how other territorial arrangements, such as the res communis status of the oceans, are open to manipulation.  Over the past 70 years, the freedom of the seas has been gradually eroded with the expansion of territorial waters and (increasingly territorialized) exclusive economic zones.  Some excellent articles on this topic include “The Territorial Temptation: a Siren Song at Sea” by Bernard Oxman, “The Tragedy of the Common Heritage of Mankind” by Scott Shackelford, and “A Particular Kind of Dominium: The Grotian ‘Tendency’ and the Global Commons in a Time of High Arctic Change” by Christopher Rossi.  All of these articles suggest that the global commons are unlikely to be stable entities, much less the solution to problems of global inequality, as was suggested in the book Distributive justice debates in political and social thought : perspectives on finding a fair share.  Shackelford argues that the development of new technology renders previously unexploitable global commons capable of annexation.  This isn’t the whole story, as the global commons status is not based entirely on the impossibility of occupation.  As Benton and Straumann put it, “Grotius seems to take this [the res communis status of the high seas] to be a consequence both of the empirical fact that the sea cannot be occupied, and the normative second reason that nature seems, according to Grotius, to have made the sea vast and unsusceptible to occupation in order for it to be held in common. Grotius thus would not allow exclusive property rights under natural law even if the sea could be occupied” (“Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice”, 27).  Indeed, in The Political Uncommons: The Cross-cultural Logic of the Global Commons, Kathryn Milun argues that the weakness of the commons to gradual annexation is less because of technological advancement and more due to their existence in mental maps as empty space, more like terra nullius than precious, globally held resources.

While I think that an extensive historical study of the intersecting roles of terra nullius and res communis would be both fascinating and useful, a better understanding of the source material suggests that such a task would not fit in an honors thesis format.  I have decided to focus more narrowly on the Svalbard context.  I will, however, situate the anomalous use of terra nullius in the Svalbard negotiations within a historically informed taxonomy of acquisitive nullification, distributive nullification, and restrictive sovereignty.  In this way, I will be able to more thoroughly analyze the Svalbard primary sources, while still retaining a broader historical perspective.

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