This study examines the law and policy for the management and protection of the global commons. It analyzes the protection and distribution of global common resources from fairness, effectiveness, and world order perspectives. We examine whether international environmental policymaking has resulted in the fair allocation of global common resources that will be effective in protecting the environment.
Chapter 1 is an introduction to the basic concepts of international law and international environmental law (IEL). It provides an overview of the actors that are involved in international policymaking and explains the international lawmaking process and the historical evolution of IEL. Principles of IEL, such as sovereignty over natural resources, the polluter pays principle, the precautionary principle, the equitable utilization of resources, common but differentiated responsibilities, and intergenerational equity are explored in detail.
Chapter 2 analyzes the constitutive elements of global environmental governance. International environmental governance works when states fulfill the commitments they undertake under international law, such as the obligation to exchange information on transboundary environmental risks and impacts and the duty to notify and consult with other states with regard to such risks and impacts. Mechanisms of global environmental governance include environmental impact assessments and strategic impact assessments that are analyzed in detail in this chapter.
Chapter 2 also introduces readers to the basic process of IEL creation through the adoption of treaties and soft law instruments (e.g., resolutions, declarations). This chapter examines how the monitoring, control, and surveillance of compliance with international environmental obligations has been modernized by the wide application of technologies (e.g., reconnaissance satellites and electronic devices) and enriched by the data revolution and the employment of artificial intelligence. The role of compliance mechanisms and their impact on the implementation of international environmental agreements is scrutinized. Chapter 2 further explores whether green democracy has become a universal aspirational principle and how the system for the protection of human rights has been used as a tool for the protection of the environment, lending support to the emergence of a right to a healthy environment. Whether nature, as a legal entity, should be accorded rights and have a say on the development plans of states is also analyzed.
Chapter 3 delves into the functions and foundations of IEL. We demonstrate that law, while an institution of the status quo, has also been used to foster change. IEL is an institution based on the deliberate redundancy of parallel and overlapping networks that contribute to its resilience and to the maintenance of the minimum public order. We analyze the foundational purposes of IEL: the quest for equity and the pursuit of effectiveness. We underline that addressing matters of distributive equity successfully is the sine qua non condition for the effective protection of environmental commons.
The “tragedy of the commons” rationale that precipitated the enclosure of common pool resources in national systems is driving also the enclosure of global common resources. This chapter analyzes the specifics of this enclosure, as it has been unfolding in fisheries, marine genetic resources, germplasm resources and related knowledge, deep-seabed resources, freshwater resources, air, seas, chemicals, wastes, and space. The nature of inclusionary and exclusionary enclosures and how these types of enclosure affect perceptions of distributive equity are critically examined. Finally, international environmental regimes are evaluated based on the effectiveness of the enclosure they have commanded and the perceptions of equity held by the stakeholders and participants in the regimes.
Air quality is a global common pool resource as air pollution by some affects the quality of the air we all breathe. Air pollution related to greenhouse gases (GHGs) is also a threat to the climate system, which is changing – a change that is bound to affect the survival of entire states and populations. The enclosure of the air has been inclusionary since it has been realized that the reduction of emissions by some states will not do much to improve air quality or abate climate change if other states continue to pollute. The same is true with regard to the enclosure of the ozone layer, since the elimination of ozone-depleting substances (ODSs) by some states will be fruitless if other states continue to produce and consume ODSs. In the ozone and climate change regimes, developed countries have been willing to provide side payments to developing states for joining in and for outlawing ODSs and reducing their GHGs. Chapter 4 explores the regimes for the protection of the climate and the atmosphere from the perspective of equity and effectiveness (e.g., will the side payments provided to developing countries convince them to reduce their emissions?). Other issues that are addressed include: the politics of green energy transition in connection with the mining of rare earths and minerals and revival of nuclear energy, and the repercussions of the privatization of the air through the employment of market-based instruments. Finally, we examine the transboundary air pollution regime – an effective inclusionary enclosure that has taken place in Europe.
Chapter 5 examines the regimes for the international trade in dangerous chemicals and in hazardous and radioactive wastes. Wastes are not prima facie a global common resource but rather a negative resource produced by industries and households. Wastes are usually viewed as a burden, an externality, and the question has been how to share the costs associated with such an externality. In the late 1980s, the not-in-my-back-yard (NIMBY) syndrome in the developed world drove up waste disposal costs, which, in turn, motivated states and waste generators to find cheaper disposal options in the developing world. As a result, wastes were transferred to states with no infrastructure to deal with them. The outcry generated by such transfers led to the adoption of an international regime based on the forced enclosure of wastes according to the principles of self-sufficiency and proximity. Countries must become self-sufficient in the management of their wastes and wastes must be disposed of as close as possible to the place of their generation. While self-sufficiency is considered the appropriate regime for the management of hazardous wastes, the same is not true with radioactive wastes. With regard to nuclear wastes, states are encouraged to cooperate and to share waste facilities, since the proliferation of nuclear waste sites is ill-advised on both environmental and global security grounds.
Chapter 5 examines the regimes of transfers of hazardous and nuclear wastes from the point of view of equity and effectiveness. The question we try to answer is whether the forced enclosure of wastes has worked and whether the principle of self-sufficiency should be the only principle guiding the global management of wastes. We examine, in particular, how the forced enclosure of wastes is contributing to illegal waste trade conducted by criminal networks. The regime of dangerous chemicals that have been banned or severely restricted internationally shares some of the pitfalls of the global waste regime in that the overt prohibitions and restrictions in the trade of these chemicals have played a role in their illegal trafficking. Other issues that we examine in Chapter 5 are the legality of nuclear weapons testing, the international regulation of nuclear power plants, and the international response to nuclear accidents.
Chapter 6 addresses the protection of the marine environment. The seas are common pool resources that have become open access resources owing to the pollution that states discharge into the seas. This chapter examines the different regulatory approaches that have been adopted by states to change the open access character of the seas and oceans, such as the Law of the Sea Convention, the MARPOL Convention, the London Dumping Convention, and various regional conventions including those on the Mediterranean Sea, the Caribbean Sea and the North-East Atlantic. The chapter concludes that, despite the global regulatory efforts, the seas have remained an open access resource owing to the lack of controls on pollution inputs.
The Convention on Biological Diversity was the first convention to address biodiversity as a global common pool resource. The convention mandates the protection of biodiversity and deals simultaneously with distributive issues, that is, the allocation of benefits from the exploitation of germplasm resources. Although “raw” germplasm resources have typically been treated as open access resources, “worked” germplasm resources are protected under various intellectual property right systems, such as breeders’ rights and patents. This disparity in the treatment of resources has prompted developing countries to assert jurisdictional control over their “raw” germplasm resources and to charge fees on persons (researchers, corporations) who wish to access such resources. Chapter 7 analyzes the global arrangements for the sharing of benefits from the use of germplasm resources and whether such arrangements will be disrupted by the new techniques of synthetic biology and the advantages offered by the in silico conservation of germplasm resources. We further scrutinize whether the existing arrangements, or potential future configurations of benefit sharing, will have a tangible impact on the livelihoods of people of the developing world (indigenous peoples and farmers).
Chapter 8 examines the global mechanisms for the protection of biodiversity using the framework of equity and effectiveness we outlined in Chapter 3. Most biodiversity resources are under states’ jurisdictional control or are shared among states in a region. These biodiversity resources cannot, thus, be characterized as global common resources. The biodiversity loss that is witnessed worldwide has, however, put the protection of biodiversity on the international agenda with a new sense of urgency. The international management of national biodiversity involves attempts of the international community to globally enclose national commons. As many states do not have adequate resources to protect and manage their biodiversity resources, these resources often become open access resources and are degraded. National and transnational protected areas and international gene banks are methods that have been used to protect biodiversity resources. Other efforts include measures to curb or prohibit the trade in endangered species and the adoption of international treaties, such as the World Heritage Convention, the African Convention for the Conservation of Nature, and conventions on the protection of migratory species, seals, and whales. This chapter emphasizes that local and global efforts for the protection of biodiversity should not be used as means to suppress the rights of indigenous peoples and farmers nor to forcibly relocate them without their consent.
Chapter 9 analyzes the global management of fishery resources, deep-seabed resources, and marine genetic resources. Fisheries are a typical example of global common resources. Fisheries are by nature mobile resources as they straddle areas under the jurisdiction of states and those of the high seas. The management of fisheries is a highly contentious issue because the ongoing enclosure of these resources has been largely exclusionary. Regional fisheries organizations that have been established to manage such resources are not always welcoming of new entrants, which remain discontented with the increasing appropriation of the high seas by coastal states.
Deep-seabed resources and marine genetic resources in areas beyond national jurisdiction (ABNJs) have been declared the common heritage of humankind and, thus, cannot be subject to appropriation by any state. Deep-seabed resources have been explored gradually, after the establishment of the International Seabed Authority (ISA), which is about to issue the first exploitation regulations for the extraction of metals and minerals from the deep seabed. The exploitation of the metals and minerals of the seabed is in conflict, however, with the protection and utilization of marine genetic resources (MGRs) and is very likely to drastically alter and pollute the fragile environment of the deep seabed. Scientists and environmentalists have called for a moratorium on deep-sea mining but small island states and a number of other countries are keen on it continuing. They expect that the metals and minerals extracted from the deep seabed, which are used for the green energy transition (e.g., batteries and solar and wind equipment), will bring them windfalls. This chapter examines the conflicts and compromises that have been reached with regard to the exploitation of deep-seabed resources and MGRs. We scrutinize the ISA’s draft exploitation regulations and the 2023 treaty on the protection and use of MGRs in ABNJs.
Chapter 10 examines the protection and allocation of shared water resources. Freshwater resources are not global common resources. They are, instead, shared among states in a region. This chapter examines the UN Watercourses Convention and the UNECE Water Protection Convention and their influence on the regional instruments for the protection and allocation of water resources. Issues of equity in water allocation, efficiency, demand-led management, and water quality are examined as they have been elaborated in various regional fora, such as Europe, North America, sub-Saharan Africa, the Central and West African region, Latin America, North Africa and the Middle East, ASEAN, South Asia, Southeast Asia, and Central Asia. The chapter examines the role of international river basin organizations in facilitating integrated water resources management. We also analyze the international protection of aquifers and groundwater resources and the adoption of regional agreements that regulate their extraction and protection.
Chapter 11 examines issues of private liability and state responsibility for environmental harms inflicted on third states due to a hazardous activity undertaken by a state or by its nationals. We analyze in detail the liability of private enterprises for oil spills, hazardous waste transfers, and nuclear accidents. We scrutinize how the strict but limited liability regime has come under fire, owing to environmental damage that exceeds the liability limits provided for by international conventions. States have tried to address the limitations of private liability regimes by establishing international funds put together by industry associations or the states themselves to supplement the compensation made available by the operators of hazardous activities. This chapter further explains how states can be held internationally liable for hazardous activities that take place within their territory because of their failure to meet the standard of due diligence, and how they can be held responsible for wrongful activities.
Chapter 12 examines international environmental issues as they intersect with trade issues. We analyze the case law produced by the World Trade Organization in various disputes in which the prerogative of free trade stumbled over the regulatory measures that states have enacted to protect endangered species and human health. Some of the cases that have made headlines include national measures to protect the dolphins when fishing for tuna; restricting the use of growth hormones in cattle; and the regulation of GM products. Chapter 12 demonstrates how IEL has had a lasting impact on trade law and how it has helped refashion the notion of free trade.
Chapter 13 deals with the adoption of regulatory measures to protect the environment when these measures clash with obligations of states to protect foreign investments. The purpose of the investor-state dispute settlement (ISDS) procedures adopted by international arbitral tribunals is to protect the interests of investors and to ensure that their investment is not expropriated (nationalized) by their host state. States have adopted measures to protect their environment and they have used those measures to cancel foreign investments. Investors have brought such measures before international arbitral tribunals, claiming that the cancellation of their prospective investment constitutes direct or indirect expropriation. The tribunals that have decided these cases have been far from unanimous on the threshold at which a state’s legitimate right to regulate its internal affairs, including the protection of the environment, constitutes expropriation of an investment. This has generated much uncertainty for investors and host states. By the late 2010s, though, states started to drastically change the nature of ISDS by increasingly adopting a new generation of international investment agreements that limit significantly the discretion of international arbitral tribunals, and recognize the importance of states’ regulatory space in matters such as the protection of the environment, labor rights, and human rights.
Outer space has been declared the common heritage of humankind. Chapter 14 explains that, rather than treating outer space as common heritage of humankind, states have been treating it as an open access resource; they have consistently failed to remove their disused satellites and rockets from space, resulting in the accumulation of space debris (i.e., space junk), which greatly pollutes outer space. This chapter explores how the race for space dominance and the militarization of space have undermined the sustainable use of outer space. We analyze the treaties that have been adopted for management of outer space, such as the Outer Space Treaty and the Moon Agreement. While states claim to abide by these treaties, they have adopted laws and entered into agreements (e.g., Artemis Accords) that seem to contravene the principle that outer space is the common heritage of humankind. Spacefaring nations are, in general, much more interested in extracting and appropriating the metals and minerals expected to be found in the moon and asteroids rather than approaching such resources as common heritage resources. This mentality of appropriation is based on a widespread understanding that the state that will dominate outer space will dictate the global rules for the management of its resources, which could exclude other states.
