This chapter explores the understanding of nature reflected in the international legal classification of territory, as reflected in the doctrines of terra nullius, res communis and the common heritage of mankind. It provides an overview and analysis of each of these concepts, noting the frequently problematic role they have played in legitimating the exercise of political and economic power. It then analyses the continuities and discontinuities between these categories. It argues that, despite surface changes, a narrow instrumental view of nature and the environment continues to be deeply embedded in much of our current thinking about jurisdiction over territory, and can be seen as constituting one of the ongoing barriers to thinking about the environment in more innovative and sustainable ways.

Introduction

We live in a time in which issues of environmental protection and human poverty are near the top of the international agenda. Concerns about justice and injustice are inextricably linked with both. There is often a tendency to separate out the two, so that justice in the environmental context is seen as relating to the proper relationship between humans and the natural world, while justice in the human context is seen as relating to the bonds that unite us to those of our own species within and across borders. Furthermore, these issues are sometimes seen as competing for scarce resources, so that some of those seemingly concerned about Third World poverty view it as an excuse to delay or avoid action on the environmental front. Such views go back to the time of the 1972 Stockholm Conference on the Human Environment. In her statement at the Conference, then Indian Prime Minister Indira Gandhi asserted:

[… M]ore than fifty years after the Tribunal's final decision, the Trail Smelter arbitration has come to occupy a prominent but somewhat mysterious position in the legal canon. Although it is one of the best known and most frequently cited international decisions, and is regarded by many scholars as the fountainhead of modern international environmental law, it is more an object of reverence than a subject of analysis. All too often it is invoked as authority by scholars who pause only long enough to mention its name and the principle to which it is said to lend support before moving on. Although the potential dangers involved in overstating either the scope of application or overall significance of the Tribunal's decisions have been noted on numerous occasions, there has been less emphasis on the equally important concern that these passing references constitute reductionist accounts of a highly complex set of circumstances, and as such represent a series of lost opportunities to learn the lessons of Trail Smelter.

The numerous warnings about the misuse of Trail Smelter tend to focus on its invocation, […] as support for the existence of customary duties to avoid causing transboundary environmental damage and to make reparation for such damage should it occur. The applicable principle, referred to as the sic utere tuo standard (from the Latin maxim sic utere tuo ut alienum non laedas: use your own property so as not to harm that of another), has been characterized as a description “of the other face of the coin of sovereignty” and can be seen as the fundamental building block of a system of international environmental protection.