Res Communis ve Roma Medenî Hukukunun Diğer Temel Kavramlarıyla Antarktika Hukukunu İdealleştirme Denemesi
Kuzey ve güney kutuplarının hukukî, iktisadî ve siyasî statüleri hakkında farklı teoriler bulunur. Elbette teorisyenler Kuzey Kutbu (≈Arktik) ve Güney Kutbu (≈Antarktika) kıyaslamasında farklı bilimsel sonuçlara ulaşırlar. Gerek Arktik gerek Antarktika petrol ve doğalgaz dâhil pek çok doğal kaynağı yer altında barındırdığı gibi biyolojik çeşitliliğe de ev sahipliği yapar. İki kutbun hukukî statüleri farklı rejimlere tâbidir. Egemen devletlerin tekil hâkimiyetlerinin dışında kalan Antarktika’nın hukukî rejimi hâlâ tartışmaya açıktır. Antarktika hukukunda res nullius (kimseye ait olmayan, belonging to no one) yerine res communis (ortak, common), res communis humanitatis (insanlık ortaklığına ait, belonging to the commonality of humanity) prensibi ve insanlığın ortak mirası (common heritage of humanity) mottosu benimsenir. Lâkin akademideki ortaklaşa yönetilen Antarktika söyleminin antlaşmalar sisteminde pozitif karşılığı net değildir. Yine de medenî hukukun temel terminolojisiyle insanlığın ortak mirası kavramını idealleştirme denemesi kutup öğretisine yeni bakış açısı sunabilir. Gerçekten şu terim ve ilkeler res communis humanitatis’in Antarktika’da daha verimli uygulanması açısından ideal kavramsal alt yapı sayılabilir: birlikte mülkiyet, elbirliği mülkiyeti, birlikte maliklere belirlenmiş pay hasretmeme, her malike ortak menfaatleri koruma yetkisi tanıma, her birinin mülkiyet hakkının ortaklığa giren değerlerin tamamına yayıldığını kabul etme, (hiç olmazsa olağan üstü yönetim işlerinde) oy birliğiyle karar alma, hukukî boşlukları paylı mülkiyete dair kurallarla doldurma, sürekli ve müşterek amaca tahsis edilmekten kaynaklanan taksim engeli benimseme, ortaklığın giderilmesini (paylaşmayı) isteyememe ve mülkiyet birlikteliğini sürdürme (idame-i şüyu) yönünde örtülü (zımnî) anlaşmanın varlığını varsayma.
An Attempt to Idealise Antarctic Law with Res Communis and Other Basic Concepts of Roman Civil Law
There are various theories about the legal, economic, and political status of the North and South Poles. Furthermore, theorists reach different scientific conclusions when comparing the North Pole (≈Arctic) and the South Pole (≈Antarctic). The laws of the two poles are subject to different regimes. In Antarctic law, instead of res nullius (nobody’s, belonging to no one), the principle of res communis humanitatis (the common property of all, belonging to the commonality of humanity) and the motto of the common heritage of humanity are adopted. However, the collectivist Antarctic discourse in academia is not clearly reflected in the Antarctic Treaty system. In this study, an attempt to idealise the concept of the common heritage of humanity with the basic terminology of Roman civil law is undertaken, which may offer a new perspective on the doctrine of the poles. The following terms and principles can be considered as an ideal conceptual infrastructure for a more efficient application of res communis in Antarctica: co-ownership, co-ownership for or as undivided shares, the absence of designated shares of co-owners, unanimous decision-making (at least in extraordinary administrative matters), the extension of each co-owner’s property to the whole of the communal property, authorising each co-owner to protect the common interests of the co-ownership, not authorising co-owners to file partition action, filling the legal gaps with the rules of co-ownership as divided, the impediment to partition arising from being allocated to a permanent and common purpose, and the implicit agreement to maintain co-ownership.
There are various theories about the legal, economic, and political status of the North and South Poles. Furthermore, theorists reach different scientific conclusions when comparing the North Pole and the South Pole. Both the Arctic and Antarctic harbor many natural resources, including oil and natural gas, and are home to biodiversity. However, the laws of the two poles are subject to different regimes. The Arctic is the scene of a struggle for sovereignty between the resident and associated countries. The Arctic Five (Russia, the United States, Canada, Norway, and Denmark), as well as Iceland, Sweden, and Finland, three states that aim to obtain exclusive status even though they have no direct borders with the ocean, are in competition with each other. In contrast, in Antarctica, the sovereignty claims of seven states (Argentina, Australia, France, Chile, Norway, the United Kingdom, and New Zealand) are frozen by the Antarctic Treaty system. In fact, the legal regime of Antarctica, which lies outside the sovereignty of all countries, is still open to debate. Antarctic law is characterised by the Antarctic Treaty of 1959, which entered into force in 1961, and its extension, the Antarctic Treaty system. Within this system, mining is prohibited except for scientific purposes.
In Antarctic law, instead of res nullius, the principle of res communis humanitatis and the motto of the common heritage of humanity are adopted because belonging to no one means openness to occupation, which can lead to the submission of the weak to the strong. In contrast, common belonging can produce peace, abundance, and prosperity. The social science literature dealing with the poles explains res communis in terms of collectivism and its ideal requirements. International law, on the other hand, defines the sine qua non of such a fictitious commonality in terms of pluralism and solidarity. The doctrine of the common heritage of humanity is skillfully projected onto the Antarctic through multidisciplinary discourse, yet the collectivist Antarctic discourse in academia is not clearly reflected in the treaty system.
The Antarctic Treaty was first ratified by twelve states, and forty-four others have become members to date. Twenty-nine of these fifty-six states have decision-making power, while twenty-seven can only attend meetings as observers. In other words, of the fifty-six states nominally associated with the Antarctic Treaty, only twenty-nine have decision-making authority. According to UN data, there are two hundred six states in the world and one hundred seventy-seven of those do not participate in governance in Antarctica. Considering that only fifty-six of the world’s states are associated with the Antarctic Treaty, at least one hundred fifty states currently have no conventional connection with the legal regime of the glacial continent. Thus, Antarctica is the common heritage of only %15 of the planet, to the exclusion of the remaining %85. It is obvious that the Antarctic Treaty system, which represents the will of roughly one-seventh of the world, is not global and does not meet the requirements of the doctrine of the common heritage of humanity. This introverted and elitist treaty, whose legal bindingness depends on the fate of international law, does not reflect a global consensus. The legal regime that confines Antarctica to only twenty-nine elite states is not a compromise but rather the collusion of a closed group.
It is only to be hoped that the states will collectively refrain from asserting sovereignty in Antarctica out of concern for the common heritage of humanity. The present study supports this hope with the basic terminology of civil law. If there is hope that sovereign nations will come together to establish a new Antarctic Treaty system, this project could be clarified by the ancient civil law infrastructure. This is because the concepts of res nullius and res communis, known in philosophy and law, have their antecedents in Christian theology and their origins in Roman civil law. In fact, the idea of the common heritage of humanity being passed down from generation to generation comes from Roman law.
The historical details of res communis humanitatis can be useful when envisioning the ideal governance of Antarctica. Here, an attempt to idealise the concept of the common heritage of humanity with the basic terminology of Roman civil law is undertaken, which may offer a new perspective on the doctrine of the poles. The idea of the Antarctic law protecting future generations is only possible with the acceptance of communis humanitatis and collective property. The following terms and principles can be considered as a conceptual infrastructure for a more efficient application of res communis humanitatis in Antarctica: co-ownership, co-ownership for or as undivided shares, the absence of designated shares of co-owners, unanimous decision-making (at least in extraordinary administrative matters), the extension of each co-owner’s property to the whole of the communal property, authorising each co-owner to protect the common interests of the co-ownership, not authorising co-owners to file partition action, filling the legal gaps with the rules of co-ownership as divided, the impediment to partition arising from being allocated to a permanent and common purpose, and the implicit agreement to maintain co-ownership.
The Roman jurist Ulpian thought as follows: The benefits produced or transformed from res communis are res nullius. However, in Antarctica, the rule that what is on/in res communis is considered res nullius should be applied with caution and sensitivity because this continent, which resembles a Pandora’s box, contains unimaginable riches. The fact that what is on/in Antarctica is considered res nullius and that those who labor to obtain these fruits are rewarded with propriety may lead to the exploitation of developing countries by developed ones. It is unacceptable that the precious minerals and biodiversity of Antarctica should be reserved for certain powerful countries simply because they have labored to acquire them. In terms of the South Pole res communis humanitatis requires the equitable sharing and use of resources. After all, the freedom to claim the benefits of humanity’s common heritage is limited by the principles of equitable sharing and passing it on to future generations.
