Ocean Law and Policy are natural and ancient
The historical perspective governing the law and policy of the ocean is enshrined in two persistent doctrines on how sovereign nations view the seas: the doctrines of Mare Liberum (the free sea) and Mare Clausum (the closed sea). The acceptable principles of free and open seas are based upon natural law which states that a body of unchanging moral principles is regarded as a basis for all human conduct. The Natural Law supports the notion that human beings possess intrinsic values that govern our reasoning and behaviors. This is further consistent with the interpretation that the rules of right and wrong are inherent in people, and not a societal construct.
The public trust doctrine is an important tool that originated in the ancient laws of the Byzantine Emperor Justinian and adopted into ancient Roman law concepts around common property, where the air, rivers, sea, and the seashore were incapable of being held by private ownership and were dedicated for use by everyone. It was this ancient law that influenced the doctrine of Mare Liberum (the free sea) and English common law. This law dictates that the crown control the navigable waterways and submerged lands not in an ownership capacity, but “as a trustee of a public trust for the benefit of the people for uses such as recreation, commerce, navigation, and fishing.”
A version of the ancient law of the sea should be incorporated into the Jamaican constitutional law, which would be a good thing for the environment.
The Jamaican Constitution
The Jamaican Constitution 1962 is the most fundamental legal document in the country, guaranteeing the freedom, rights and privileges of every Jamaican citizen. The Constitution reflects the country’s independence as a nation state and, to this day, remains the cornerstone of the island’s legal systems and institutions.
As stated in the Jamaican constitution, “the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage”, is a one dimensional view that only accommodates human interpretation of life. There needs to be a holistic and modern interpretation with the new understanding that the environment, inclusive of beaches, is also alive and is required to be explicitly referred with its own personhood status.