Conflicting Interests in the Anthropocene
‘Commoning’ resources for international law’s new paradigm?
Rose Pommeray 12735299
A thesis submitted in partial fulfillment of the Requirements for the Master of Laws (LLM) International Law and European Law, Public International law track.
Law Faculty University of Amsterdam Pr. Dr. Mr. Janne Elisabeth Nijman
12140 Words 24th July 24, 2020
Can the ‘commoning’ approach constitute an interesting tool for international law to face the new era and paradigm of the Anthropocene?
What are the interests protected by contemporary international law?
What are the mechanisms available to depart from the traditional concept of property which structures contemporary international law?
Can existing mechanisms offer valuable tool for international law to answer contemporary challenges?
Table of Contents
Chapter 1: Analyzing structural features of contemporary international law 1. Questioning international law: methodology
1.1. The challenge presented to international law: the ecological crisis 1.2. The critical legal studies lens
1.3. Foundational concept of international law logics: property 2. Identifying interests at play: Human versus Nature?
2.1. Human interests
2.1.1. ‘Self-interests’ in international law 2.1.2. International community interests 2.2. Nonliving interests? Environmental ‘concerns’ 3. Identifying the paradigm of international law
3.1. The allocation of authority in contemporary international law 3.1.1. Holocene
3.1.2. Neoliberalism
4. Introducing a new paradigm: the Anthropocene 4.1. The Anthropocene notion and international law
4.1.1. New geological era, new paradigm 4.1.2. Assessing viability of the system 4.1.3. Uncovering conflicting interests
4.1.4. Consequences on international law structures Chapter 2: Exploring the commons or ‘commoning approach’ 1. Terminology: Defining the ‘commoning’ approach
1.1. Definition of ‘commoning’
1.2. Professor Ostrom’s design principle 1.3. ‘Socionatural subjectification’
2. Commoning approaches in existing structures in international law 2.1. Global commons: common property?
2.2. The Common heritage of Humankind: principle and conceptual structures 3. Conceptual potential in the new paradigm
Chapter 3: Case study: Examining the application of the communing approach in contemporary international law
1. The CHH in the law of the Sea
2. Critical analysis of the regime as applied under the UNCLOS 2.1. Regulated utilization and distribution: communal ownership?
2.1.1. Scope of the regime: Definition of the ‘Area’ 2.1.2. Distributive economic justice
2.2. The ISA: international cooperation and management
2.3. Assessing the place for environmental protection (a discursive function?) 3. Externalization of environmental protection
4. Conclusions
4.1. Identifying trends: Utilitarianism and anthropocentrism 4.2. Furthering traditional structures and creating a legal imaginary
Chapter 4. Conceptual potential of the commoning approach in the Anthropocene 1. The contributions of the Anthropocene to the commoning concept
1.1. Descriptive contributions of the concept 1.2. Prescriptive contributions of the concept
1.2.1. Guiding principles to improve ecological governance 2. Scientific scholarship as framework
2.1. The planetary Boundaries framework 2.2. Earth system science
3. Propositions of new law and governance models based on the approach 3.1. The Commons Law project
Chapter 5: Conclusion Chapter 6: Bibliography
Chapter 1: Critical analysis of the structural features of contemporary international law
In this chapter, I will offer terminology and introductory remarks for the purpose of clarifying the framework of my research.
This research stems from the assumption that the public international law system currently faces challenges in the 21st century that it is unable to answer notably due to its structural
features. The research focuses on the environmental nature of these challenges, i.e. the environmental crisis, in the quest of uncovering the inadequacy of the legal organization. These conclusions are drawn from literature which examines the international legal system from a critical standpoint (encompassing historical and economic context) as I will firstly examine (1).
Such literature uncovers forms of power play made possible through particular conceptual objects and identifies interests which are differently protected by international law mechanisms (2).
These first points serve the purpose of revealing the paradigm of international law (3), and in turn, reveal the gap existing between this operating paradigm and the reality of the international law context.
Lastly, I introduce a new (multidisciplinary) notion which departs from the previously described paradigm in terms of the reality that it exposes (4). This notion will constitute the overall framework of the research, to underline the structural limits of international law, and the possible alternatives.
1. Questioning international law structures: methodology
1.1. The challenge presented to international law: the ecological crisis
The environmental crisis is currently the biggest challenge faced by Humanity: global warming expresses itself through a whole range of external manifestations which affect differently parts of the world and their inhabitants.
Concerns are manifested by the international community, and awareness is rising as environmental protection and ecology gradually take an important place as an independent field in research, public debate and policy making.
However, what is noticeable in this crisis is the gap between the reality exposed by scientists regarding the extent of the crisis, and the global response given to it. Legal scholars have consistently pointed out this paradox. The new instruments intended to develop cooperation to respond to the environmental crisis on the international plane are criticized by scholars for lacking substance and effectiveness, and merely offering a symbolic and diplomatic relevance.1
1 Kotzé, L.J., French, D. ‘A critique of the Global Pact for the environment: a stillborn initiative or the foundation
1.2. The critical legal studies lens
The public international law system has been under the microscope of legal philosophy and theory since the beginning of its development, and legal theory extensively contributed to this development. The study of this legal system evolved gradually towards critical international legal theory, abandoning the classical forms of legal theory amongst which the positivist movement and others holding objectivity, neutrality or determinacy as legitimate claims. The critical project stems from an ‘eclectic disciplinary genealogy’2 and was inspired by legal
realism as well as more analytic traditions, by postmodern and post-structuralist theories, political economy, postcolonial studies, gender studies and others. This observational lens does not offer simply a view of the international law with an esprit critique, but rather underlines systemic, structural causes to be the roots of the legal system’s failures. Therefore, it seeks to identify void and illegitimate assumptions and ‘false empirical claims’3 within the international
legal system through the analysis and deconstruction of traditional notions and structures. This critical approach is indispensable in this research to draw general conclusions about systemic limits and their root causes.
Critical legal studies have focused on different areas in which international law has allegedly failed. In this paper, the focus will remain on the relationship between Humanity and Nature, and the way it is translated through international legal rules and structures.
Critically approaching international law with a multi-disciplinary approach thus enables gaining perspective to draw an overarching picture, which is fundamental to test the adequacy and efficiency of the tool observed to serve its goals. The work of Guldi and Armitage4
underlines the necessity of looking at the past to build a common and public future.5 Relating
these author’s arguments to the observation of the international legal system shows the necessity of the critical legal studies approach: traditional mechanisms must be deconstructed as well as contextualized in the (long-term rather than the short) past as well as in the present in order to examine the possibilities and limits which will appear in the (short but most importantly long-term) future.
The authors emphasize on the importance of long termism (longue durée history) in research and regret the gradual shift taken by history scholarship towards more and more focus on shorter periods of time. As explained in the History Manifesto, longue durée history enables us to understand the ‘genesis of contemporary global discontents’: inquiring over longer
2 Jason Beckett, ‘Introduction, Critical International Legal Theory’, article Oxford Bibliographies,
DOI:10.1093/OBO/9780199796953-0007.
3 Ibid note (1).
4 Guldi J and Armitage D, ‘The History Manifesto’, (2014), (Cambridge University Press).
5 The argument is made specifically for the work of historians, with recommendations to approach historical
thinking (with emphasis made on the obstacles of destiny and free will, counterfactual thinking and utopian thought). Here It is used as a theory to apply in a general sense for research focused on the reconception of institutions.
durations is the only way to avoid falling into considerations regarding national history, which constitute narrower approaches very limited in uncovering the roots of longtime complexes.6
1.3. Foundational concept of international law logics: property ownership
In the international law system, the concept of ownership as an individual right is highly dominant. As a matter of fact, a number of international law’s latest and eminent observers have underlined that the international law system itself is created on foundations and concepts or tools that emerged from needs to acquire property,7 to exercise power over objects and or
peoples8. Such statements arise from the study of international law’s core concepts through
critical legal theory and history, in an attempt to question these tools traditionally taken for granted. Following Guldi and Armitage’s recommendations,9 it is relevant to examine the
specific place taken by property in the past developments of public international law.
In the 17th century, with the advent of the modern nation state system, property rights were
acknowledged (under international law) to the extent that they were recognized under the particular law of one nation. As a result of this positivistic approach, no property rights are recognized as emerging from international law, and the latter has no impact on them (exceptions aside). However, the fundamental principle of sovereignty in international law is intertwined with property in such way that these concepts become analogous.10 Indeed, a
fundamental principle of international law is that a State enjoys sovereignty over its territory, which amounts to the right to adopt its own legislation and regulate property claims within the territory.11 By property rights, we refer to the ‘the exclusive right to possess, privilege to use,
and power to convey the thing that is the object of the inquiry’.12
Property is a plural and difficult notion to define, but its common and legal usage most often refers to the western conception of the term. The western conception of property emerged from Roman law, and was revived in the European continent in the 12th century in philosophical
thinking following the re-discovery of the Corpus Juris Civilis. The classical theories of property developed by jurists Hugo Grotius, Samuel von Pufendorf or John Locke further influenced the definition of the legal concept, before it was used by modern economic theories by Bentham or Mills.13
6 Cf Guldi Armitage, (n 4), 37: ‘Longue-durée history allows us to step outside of the confines of national history
to ask about the rise of long-term complexes, over many decades, centuries, or even millennia: only by scaling our inquiries over such durations can we explain and understand the genesis of contemporary global discontents’
7 Fritjof Capra & Ugo Mattei, ‘The Ecology of Law. Toward a Legal System in Tune with Nature and
Community’, (2015), Berrett-Koehler Publishers, Inc., Oackland (CA), USA.
8 B.S. Chimni, ‘Customary International Law: A Third World Perspective’, (2018), 112 AJIL 1.
9 Cf Guldi Armitage, Note (4), ‘If we really want to understand long-term sustainability, we need to look at the
past’.
10 The concepts of sovereignty and property “are essentially analogous on account of the exclusiveness of
enjoyment and disposition which is in law the main formal characteristic of both private property and territorial sovereignty.” Hersch Lauterpacht, Private Law Sources And Analogies In International Law 95 (1927), as quoted by John G. Sprankling in ‘The Global Right to Property’, (2014), 52 Colum. J. Transnat'l L. 464.
11 John G. Sprankling ‘The Global Right to Property’, (2014), 52 Colum. J. Transnat'l L. 464, 3. 12 Gregory Alexander and Charles Donahue, ‘Property law’, Encyclopædia Britannica, (January 2018).
13 Ibid ‘Modern economic theories of property that justify property on the ground that there must be an initial
allocation of resources to allow the market to operate and on the ground that individual property rights minimize transaction costs derive from the tradition of Bentham and Mill’.
Discussions surrounding ownership property in international law recall the early use of private property rights by Vitoria and Suarez (16th century), and critical legal scholars have interpreted
their work as creating structures of human relationships most commonly labeled as ‘capitalism’.14
This western conception of law and its traditional concepts of sovereignty and ownership, together with legal institutions, have long served the interests of the dominant West to perpetuate slavery and colonization (amongst others15), accompanied by a rational justification
offered by international lawyers and theorists through the natural law theory.
These concepts were developed notably to enable (industrious) individual human beings (mandated or serving indirectly their home States) to make claims over objects, territories and natural resources on the basis that these were not owned by any, did not constitute private property in the face of the law: ‘whatever remains uncultivated is not esteemed a Property’.16
2. Identifying interests at play: Human versus Nature?
The conclusion of such preliminary remarks is that law on the global scale cannot be observed without carefully taking into consideration which interests it served at the dawn of international law and which interests it serves now in the 21st century. The role of international law has
gradually shifted towards the achievement of a wider range of interests, and the expectations around the world have risen in terms of the responsibility and burden of international law to respond to contemporary challenges17.
2.1. Human interests
International law evidently serves human interests: it is a one tool of human regulation that offers a number of advantages in terms of organization of the international community. The identification of international law as a law of ‘coexistence’ or as a law of ‘cooperation’ entails different outcomes in terms of relationships and structures: the former governs ‘diplomatic inter-state relations’, whereas the latter refers to ‘the pursuit of common human interests’18. The international law system of the 21st century is more and more inclined and
sensitive to achieving cooperation between States and within the ‘international community’. In the case of international environmental law, this cooperation materializes in the drafting of instruments designed to globally lower carbon emissions, engage in sustainable and environmentally aware activities, and others. But this positive evolution does not overthrow
14 Marti Koskenniemi, ‘Empire and International law: the real Spanish contribution’, (2011), 61, University of
Toronto Law Journal, 32
15 Issues of global inequality arising from this western imperialism will not be addressed further than as a
background notion in the context of this research.
16 Grotius, DIBP, bk II, ch. II, s. XVII, (448) quoted by Marti Koskenniemi in chapter 6 ‘Natural law as Frame’ M.
Koskenniemi, Imagining the Rule of Law: Rereading the Grotian ‘Tradition’, European Journal of International Law, Volume 30, Issue 1, (February 2019), 17–52, https://doi.org/10.1093/ejil/chz017
17 Nico Schrijver, ‘The Impact of Climate Change: Challenges for International Law’, in Ulrich Fastenrath, Rudolf
Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer, and Christoph Vedder,(eds) ‘From
Bilateralism to Community Interest: Essays in Honour of Bruno Simma’, (Oxford University Press 2011)
the traditional structure of international law as shaped by an ‘economic project premised on the private accumulation of transnational capital’.19
As a common economic project, international law works as a structure in which states compete in the accumulation of capital, towards the eternal goal of GDP growth. The question that arises from these observations is which then are the interests that drive international law.
The cornerstone of international law is sovereignty, and sovereignty considerably limits the possibilities of international law in protecting interests that are ‘larger’ in that they belong to the international community as a whole, and may serve states but in an indirect fashion. Theoretically, these community interests and self or individual interests of states do not clash, but in practice, states might be reluctant to recognize and enforce some of these community interests.
2.1.1. ‘Self-interests’ in international law
‘Self-interest’ is defined as the concern for one's own advantage and well-being.20 When
talking about self-interests in the context of international law, we designate the national interests of states, which manifest in diverse ways.
As exposed by Marti Koskenniemi, ‘The world was an empire of private rights’21 at the dawn
of international law, and it is questionable whether this statement still applies in the 21st
century. Third World Approaches to International law (TWAIL) and other post-colonial critics have explored the historic domination exercised by Northern States over the Global South, showing the inherent connection between colonialism and international law.22 This connection
is relevant in exposing the plurality of interests existing within the international community of states, and the differential treatment that has shaped contemporary interstate dynamics. Indeed, the first sovereign states (recognized as such under international law) were preoccupied with their economic development, which guided them outside their frontiers in the search for the natural resources necessary for their industrial production, while other states or entities had different considerations which limited their interactions with other states. This capitalist dynamic was made possible through the colonial history of international law, when ‘western trading and mining companies’ acquired extraordinary advantages through ‘direct force’ and agreements23. It must be noted that these agreements (in legal form) were barely
comprehensible to natives who signed them.24
Hence, acknowledged interests within international law notably materialized in the ambitions of western states in the exploitation of ‘natural resources’, ‘to fuel their increasingly industrialized social order’.25 The private rights above mentioned were proclaimed with the
view to compliment the interests of powerful states, and exercise domination over the rest of
19 John Linarelli, Margot E. Salomon, Muthucumaraswamy Sornarajah, ‘The Misery of International Law:
Confrontations with Injustice in the Global Economy’, (2018), Oxford University Press.
20 Merriam-Webster Dictionary. 21 Koskenniemi (2014), note (14), 28.
22 Anghie, Antony, ‘Imperialism, sovereignty and the making of international law’. (2005), Cambridge University
Press.
23 Ibid, 211. 24 Ibid. 25 Ibid, 221.
the world. Thus, these economic interests shaped the creation of rights (of a private nature) which, in turn, shaped the foundations of the modern international legal order.
International law developed as a hegemonic tool, for the protection of the interests of certain states, holding the vision that ‘a neoliberal global economy is touted as coterminous with the aspirations of justice’.26
2.1.1.1. International community interests
The concept of community interests illustrates, in its essence, a certain departure from the above criticized concepts of sovereignty and ownership. To some extent, the concept illustrates a paradigm shift within public international law, a step away from the traditional bilateralism as exposed by Professor Bruno Simma in his work ‘From Bilateralism to Community Interests’.27 As implied by its language, community interests are interests shared by the
community, id est the international community, ‘a consensus according to which respect for certain fundamental values is not to be left to the free disposition of states individually or inter se but is recognized and sanctioned by international law as a matter of concern to all states’.28
This broad term, object of thorough research29 raises various issues, most notably that of
defining what (who?) is referred to by the term ‘international community’.30 Rather than a
communal, altruistic concept, the term has been described as the mere ‘product of the coincidence of individual state interests’ pointing to simply egocentric features.31
Community interests represent a “matrix for the progressive development of environmental law, human rights, protection against climate change, etc.”32 The term encompasses very
diverse ideals, in fields ranging from Human Rights to Global Markets and Natural Resources. This broad concept, which separates into more specific concepts itself33 is particularly
interesting because it removes legal constraints which can be particularly detrimental to the environment.34
26 Cf John Linarelli, Margot E. Salomon, Muthucumaraswamy Sornarajah (2018), (note 19), 4.
27 Bruno Simma, ‘From Bilateralism to Community Interest in International Law’, (1994), 221 Recueil des Cours
250.
28Ibid, 233.
29Eyal Benvenisti and Georg Nolte ‘Community Interests Across International Law’, (2018), Oxford University Press.
30 As put by James Crawford, ‘the "international community as a whole" is an abstraction. There is no legal entity
by that name.’ Identifying the interests of an abstraction is a complicated task, which I will not concentrate directly throughout my research. Crawford, ‘Responsibility to the International Community as a Whole,’ (2001), Indiana Journal of Global Legal Studies: Vol. 8 : Iss. 2 , Article 2, 306.
31 Scholtz, W, ‘Common heritage: Saving the environment for humankind or exploiting resources in the name of
eco-imperialism?’ (2008), The Comparative and International Law Journal of Southern Africa, 41(2), 273-293, Retrieved June 15, 2020, from www.jstor.org/stable/23253186.
32 Rüdiger Wolfrum, ‘Common Spaces and Beyond, Identifying Community Interests in International Law’,
(2018), Community Interests Across International Law. Oxford University Press.
33 Community interests specific to the protection of global resources encompass the principles of common heritage
of Humankind and common concern of Humankind (the latter is more specific to international environmental law). They will be focused on and further differentiated in this study.
34 The idea conveyed by using such terminology is to underline the dissociation between human and Nature
Community interest circumstances often give rise to ambiguous situations in which ‘no single state is in a position to demand a particular approach [from a legal standpoint]’35, i.e. that states
will ‘find it difficult to prove significant harm to their territories, or to trace such harm back to the conduct of specific states’. This is notably why the collective approach driven by the community interest concept appears so valuable to overcome challenges deep-rooted in the inter-state structure of international law. Different regimes exist for different identified community interests, but overall, they convey the same principle that some norms are to be treated collectively and with a particular attention in comparison to other norms: this creates and reinforces certain ideas of universality and hierarchy within international law36.
3. Identifying the paradigm of international law
The previous reflection led to the understanding that states have historically used international law structures to primarily accomplish national interests, and that this conception remains at the center of international law dynamics. This conception notably flows from practical and theoretical assumptions regarding the world and natural orders.
3.1. Allocation of authority in contemporary international law
The pursuit of individual interests by states is intertwined with the centrality of the concept of sovereignty. States detain powers over the exploitation of natural resources within their jurisdiction and territory and over the organization of their economic activities. This particular political structure and allocation of authority is responsible for the increasing emissions of greenhouse gases, according to research led by Professor Barrett.37
Professor Richard Falk38 also observed the allocation of formal authority in the international
legal system to critically assess the concept of sovereignty. He underlines that the allocation of formal authority is based on the two following assumptions. Firstly, formal authority is based on the assumption that what a State does territorially will not cause serious harm elsewhere, building the basis for freedom of action and the requirement that States consent to any international restrictions. The second assumption consists of the idea of the abundance of global commons, a false reality which enables various State claims to coexist and be accommodated.
These assumptions hold catastrophic consequences for the environment, and they expose the conception of nature held in the neoliberal and capitalist framework: nature is a mere background for human activities, and intangible and immutable scene for the development of humankind.
35 Jutta Brunnée, Chapter 9: International Environmental Law and Community Interests: Procedural Aspects, In:
supra note (17): Community Interests Across International Law. Oxford University Press; (2018)
36 Despite the reluctance of scholars to consider universality and hierarchization of international law as
phenomena driven by concept of community interests, the consecration of fundamental norms does amount to a certain extent to ‘generating material hierarchies’, as put by Samantha Besson, Chapter 2: Community Interests in International Law: Whose Interests Are They and How Should We Best Identify Them?, In: supra note (17)
37 S. Barrett, ‘Environment and Statecraft’, (2003) Oxford University Press
The relationship between neoliberalism and law has been gradually studied as one taking multiple shapes.39 Firstly, the two are historically tied, in the sense that law developed and
appropriated a specific shape in the neoliberal period, which was consistent with the capitalist form. This form served the accomplishment of neoliberal ends, and made law play a crucial role in ‘conceiving, constructing, and cohering’ neoliberalism. The fact that neoliberalism should be understood as a juridical project as well as a political and economic project. And, fourth, the relationship between law and neoliberalism ‘is not automatic’ but, rather, embodies contradictions and vulnerabilities that could be used to leverage social change’.
3.1.1.1. Nonliving interests? Environmental ‘concerns’
The impact of human activities on the environment led to rising concerns and increasing regulation to prevent pollution and offer protection. However, this regulation developed as an external process, furthering the disconnection between human and natural processes. Professor Viñualez summarizes Professor Shrijver’s thesis in the following quote: that environmental protection is simply an ‘external object for the protection of which the exercise of sovereignty is restricted to some extent’.40
The consequence of such conception is that environmental interests are not represented in international law, and they are not taken into consideration and acknowledged next to state interests. This way, states can perform their extracting or exploiting activities via international law instruments, disrupting the natural order of eco systems, and ‘make up’ for the consequences of their activities through additional international law instruments. Principles of environmental law encompassed in the Rio Declaration41 like the prevention principle, the
cooperation principle or the requirement that a prior environmental assessment be performed convey an insufficient protection for the environment, and the false reality that sovereignty can be ‘first asserted’ before limits are placed to its exercise.42
4. Introducing a new paradigm: the Anthropocene 4.1.1. The anthropocentricity of international law
During the last few decades, a growing literature has emerged that actively engages in ecology and law as combined notions, pointing out their connection. The work of scholars in international law and particularly in international environmental law regarding climate change has notably underlined the anthropocentricity of international law, even in its attempts to
39 Anna Chadwick, ‘Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project’, European
Journal of International Law, Volume 30, Issue 3, (August 2019), Pages 1071–1076, https://doi.org/10.1093/ejil/chz051.
40 N. Shrijver, ‘Sovereignty over Natural Resources. Balancing Rights and Duties’ (Cambridge University Press,
1997) in Viñuales, J. E. The Organization of the Anthropocene, Brill Research Perspectives in International Legal Theory and Practice, (2018), page 29.
41 Rio Declaration on Environment and Development, 13 June 1992, UN Doc. A/Conf.151/26.
42 Viñuales, J. E. ‘The Organization of the Anthropocene, Brill Research Perspectives in International Legal
develop environmental protection norms and principles.43 International law is anthropocentric
in the sense that it is constructed as a system made for the primacy of the Anthropos (‘human being’), the achievement of needs of human beings. The core point of underlying the centrality of humans in international law is that it ‘inform[s] not only the way modern law constructs, categorizes and orders nature, but also the manner in which law protects nature’,44 that is for
the self-interest of humankind and not for nature itself.
As explained by Professors L. Kotzé and D. French, this anthropocentric legal order serves as a dominance tool that ‘legally creates human entitlements to the environment, that justifies and legitimizes these entitlements, and that strengthens them through the laying of claims to the environment and its benefits to human development’45. With the assistance of law, human
activities have developed to a degree that has caused the Earth-system to deteriorate to an unprecedented extent: sea and air pollution caused by unrecycled plastic, new substances and fertilizers, the increasing acidity of oceans, the erosion of tropical forests, the extinction of species and disruption of ecosystems and global warming are some of the consequences observed.46
4.1.2 The Anthropocene concept and notion
Humankind is at the center of a new geological scene: the Anthropocene. Consisting of a combination of the Ancient Greek terms ‘Anthropos’, and ‘kainos’ (meaning ‘recent’ or ‘new’) the term describes how human activities have become a geological and morphological force (particularly) following the industrial period.
The term Anthropocene was introduced in the early 2000s by Paul J. Crutzen (Dutch atmospheric scientist and Novel laureate in chemistry) and Eugene F. Stoermer (limnologist) as a term to describe a new subdivision of the planet’s geological timescale, which would succeed to the previous period of the Holocene (“Recent Whole”), post-glacial geological epoch of the past ten to twelve thousand years47. While the pressure exerted by humans on the
environment is undeniable48, the notion itself has not of yet been approved by the relevant
authorities on geological research (International Commission on Stratigraphy and the International Union of Geological Sciences) as a new geological epoch. Many questions remain as to dating the emergence of this era, its consequences and the responses humanity has given and must resort to.
Yet the Anthropocene serves another purpose than describing a geological phenomenon. It is a philosophical construct which has been gradually appropriated by scholars in the sphere of
43 Kotzé, L. J., & French, D. ‘The Anthropocentric Ontology of International Environmental Law and the
Sustainable Development Goals: Towards an Ecocentric Rule of Law in the Anthropocene’, (2018), Global Journal of Comparative Law, 7(1), 5-36. doi: https://doi.org/10.1163/2211906X-00701002 pages 1-32.
44 V. De Lucia, ‘Competing narratives and complex genealogies: The ecosystem approach in international
environmental law’, (2015), Journal of Environmental Law 27 page 91.
45 Ibid (6), page 12.
46 Welcome to the Anthropocene’, UNESCO Courier, April-June
2018https://unesdoc.unesco.org/ark:/48223/pf0000261900/PDF/261900eng.pdf.multi
47 Crutzen P.J. ‘The “Anthropocene”’, (2006), In: Ehlers E., Krafft T. (eds) Earth System Science in the
Anthropocene. Springer, Berlin, Heidelberg https://doi.org/10.1007/3-540-26590-2_3
social sciences and global studies (philosophy, sociology, anthropology, international relations) to alert humankind on the devastating impact of its activities on the planet.
However, some scholars have shown skepticism about the notion, accusing its potential for de-politicizing the issues it addresses.49 Such literature is important to take into account when
using the Anthropocene notion, but the critique does not impact the role that the concept will take up in this research. This role is notably to alert on the complicity of international law in the Anthropocene, the need for rethinking the structures of the legal system to transform the relationship between human society and nature, as it will be further developed throughout this research (Chapter 3).
4.2 Uncovering conflicting interests: the Holocene and Neoliberalism Framework
The study of the Anthropocene now systematically ‘engage[s] with the oppressive hierarchical structure of the Anthropos itself’,50 as described by Professor Anna Grear in her critical
observation of anthropocentric international law. According to her, scholarship addressing law in the Anthropocene should ‘directly address [the Anthropos’] apotheosis in the corporate juridical subject that dominates the entire globalized order of the Anthropocene age’.51
This last point serves to emphasise how international law privileges a particular form of the
anthropos, that of the corporation (in its juridical form), and it explains the disconnection with
nature operated by international law. In the Anthropocene age, corporations constitute central actors in the global (legal) order following the privatization of ecosocial processes.52 The
ideology of ‘world peace through world trade’53 consists of the discourse according to which
human development is best achieved through economic growth and the economic and political doctrine of neoliberalism.
The concept of legal personality (pushed to its paroxysm in the above-mentioned corporate form) hinders the realization that humans are vulnerable to the modification of the natural order.
International law thus disconnects state interest from human interest, privileging the former’s economic interests through legal constructs and relegating environmental interests to the secondary level. This prioritization seems illogical, considering that environmental protection is not only in the interest of humankind but is necessary to its survival. This paradox connects back to the History Manifesto thesis, according to which humans lack ‘longue durée’ perspective in their organization and regulation, and partially explains why states would perpetuate ecological exhaustion to achieve economic growth. Current structures of
49 Swyngedouw, E., & Ernstson, H. ‘Interrupting the Anthropo-obScene: Immuno-biopolitics and Depoliticizing
Ontologies in the Anthropocene’, (2018), Theory, Culture & Society, 35(6), 3–30. https://doi.org/10.1177/0263276418757314.
50 Grear, A. ‘Deconstructing Anthropos: A Critical Legal Reflection on ‘Anthropocentric’ Law and Anthropocene
‘Humanity’, (2015). Law Critique 26, 225–249 https://doi.org/10.1007/s10978-015-9161-0
51 Ibid, page 225.
52 Winston P. Nagan & Judit K. Otvos, ‘Legal Theory and the Anthropocene Challenge: The Implications of Law,
Science, and Policy for Weapons of Mass Destruction and Climate Change: The Expanding the Constraining Boundaries of Legal Space and Time and the Challenge of the Anthropocene’, (2010), 12 J. L. & Soc. Challenges 150, 173.
53 Richard Falk, A New Paradigm for InternationalLegal Studies: Prospects and Proposals, 84 YALE L.J. 969
international law operate with the realization of direct and immediate interests in the framework of neoliberalism, in which there is a ‘limitless motivation for the appropriation of nature’.54
The false assumptions covered by Professor Falk55 constituting the foundations for neoliberal
political economy, are Holocenic features, the conditions existing in the previous geological era. The Holocene epoch is the chronological framework for human history, with specific conditions supporting contemporary human societies. These conditions are now destabilized56
by human enterprise, leading to the Anthropocene.
The Anthropocene thus highlights the obsolete foundations of neoliberalism and offers a ‘stratagem for the justification of post neoliberal theory and policy concerning environmental justice.57
54 Nagan and Atvos (2010), Note (52).
55 The abundance of global commons (1) and that what a State does territorially will not cause serious harm
elsewhere (2), Richard Falk note (55), page 136.
56 Steffen, Will & Richardson, Katherine & Rockström, Johan & Cornell, Sarah & Fetzer, Ingo & Bennett, Elena
& Biggs, Reinette & Carpenter, Stephen & Vries, Wim & de Wit, Cynthia & Folke, Carl & Gerten, Dieter & Heinke, Jens & Persson, Linn & Ramanathan, Veerabhadran & Reyers, Belinda & Sörlin, Sverker, 'Planetary Boundaries: Guiding Human Development on a Changing Planet', (2015).
Chapter 2: Exploring the commons or the ‘commoning approach’
In this chapter, I will observe the approach of ‘commoning’, a particular approach of social organization that is partially found in the organization of certain areas by contemporary international law. This approach is interesting as it constitutes a departure from the traditional concepts examined and criticized in the previous chapter.
The question that arises is whether a reconception of community interests could initiate a new and healthier relationship between humans and nature.
1. Terminology: Defining the commons or ‘commoning’ approach 1.1. Definition of ‘commoning’
The commons constitute a broad term designating a particular social organization, a ‘resource-pool’ encompassing ‘all the creations of nature […] we inherit jointly and freely, and hold in trust for future generations’.58 As exposed by Professor Linebaugh, ‘the commons is an
activity, […] it expresses relationships in society that are inseparable from relations to nature. It might be better to keep the word as a verb, an activity, rather than as a noun, a substantive’.59
This form of social organization unfolds around the sharing of common resources, and it is most documented regarding the share of natural resources.60 Commons thus challenge the
traditional notions of ownership as it shows a different possibility of organization, which is why I will also refer to it as the ‘commoning approach’.
This approach is opposed to the social organization created through international law, in which state and private ownership constitute the arrangements for managing natural resources, in the framework of capitalism.
The relationship between commons and global capitalism is complicated: capitalism has always relied on the appropriation of commons (enclosure, expropriation, and accumulation by dispossession), but the multiplication and deepening of the ecological crisis might also render it dependent on them as an alternative approach.61
1.2. Ostrom’s design principles
Scholarship addressing the commoning approach has found that it constitutes a valuable tool to promote sustainable resource management, particularly through the work of Nobel Prize laureate Elinor Ostrom.62 Professor Ostrom worked against the popularized idea that using
natural resources in a collective fashion would necessarily lead to overexploitation (which was the thesis held by Garrett Hardin63). She studied institutional systems to govern what she
58 V. Fournier, ‘Commoning: on the social organisation of the commons’ (2014), M@n@gement (Vol. 16), 435 59 Linebaugh, P. ‘Magna Carta Manifesto: Liberties and Commons for All’ (2014), Berkeley, CA: University of
California Press, (2007), page 217 in V. Fournier, 438.
60 Ibid Fournier (2014) (note 59).
61 De Angelis, M, ‘Crises, Capital and Cooptation: Does Capital need a Commons Fix?’ (2012) In D. Bollier &
S. Helfrich (Eds.), ‘The Wealth of the Commons: A World Beyond Market and State’. Amerst, MA: Levellers Press.
62 Ostrom, E. ‘Governing the Commons’. (1990) Cambridge: Cambridge University Press.; Ostrom, E. ‘The
Drama of the Commons’ (2002) Washington: National Academic Press.
referred to as ‘common-pool resources’ (CPRs)—collective resources over which no one has private property rights or exclusive control, such as fisheries, grazing lands
Professor Ostrom exposes eight design principles to follow to adopt a successful commoning approach.64 According to her, the following conditions are desired:
(1) Clearly defined boundaries;
(2) Harmony between the appropriation and local conditions; (3) Collective choice arrangements;
(4) Monitoring;
(5) Graduated sanctions;
(6) Conflict resolution mechanisms; (7) Autonomous organization;
(8) Nested enterprises for commons in larger systems.
These principles were thought as an answer to the question of how a group of interdependent individuals could organize themselves in the most efficient way to obtain joint benefits, and not fall into the ‘temptations to free-ride’.65 However, they are the cornerstone of the
commoning approach, and they serve to assess the quality of an attempt at commoning (even if they are not strict requirements66).
1.3. ‘Socionatural subjectification’
An interesting theoretical aspect of the commons is the ‘socionatural subjectification67’ that it
operates. Andrea Nightingale explains that ‘commoning brings non-humans into new kinds of relations as well as new relations between people’.68 ‘Socionatural’ is a term used in critical
social science to refer to ‘socio ecological systems in a non-binary and non-anthropocentric manner’69. Therefore, this approach can serve to create new relations between society and
nature. However, Professor Nightingale observes in her case study that these relations are not exempt from exclusion, as the exercise of power remains within commons structures. Therefore, the structure offered by commons is not sufficient to nurture relations with non-humans, it must be accompanied by a specific application and enforcement.70
2. Commoning approaches in existing structures in international law
As mentioned previously, the term commons is also used to refer to natural resources and areas. Under international law, certain areas and natural resources not subjected to state jurisdiction are subjected to particular regimes and referred to as the ‘Global Commons’. These are shared
64 Cf Ostrom (note 63) (1990).
65 B.H. Weston and D. Bollier,’ Part II - IV. The Commons as a Model for Ecological Governance’, ‘Green
Governance: Ecological Survival, Human Rights and the Law of the Commons’ (2013).
66 Ibid.
67 ‘Subjectification is a concept that comes from Foucauldian inspired feminist theory and refers to the processes
whereby subjectivities come into being’ Nightingale, A.J. ‘Commoning for inclusion? commons, exclusion, property and socio-natural becomings’, (2019), International Journal of the Commons, 13(1), 16–35.
68 Ibid, 18.
69 Braun, B and Castree, ‘N Remaking Reality: Nature at the Millenium’ (1998) London: Routledge. 70 Cf Nightingale (n 67), 22.
between states, or even the international community as a whole. They include the high seas, the atmosphere, outer space and Antarctica, and are also protected under the ‘Common heritage of Humankind’ (CHH).71 Each area has a specific associated regime, but none of them can in
principle be appropriated by any state or private actor.72
Global Commons are particularly central in the Anthropocene, as they hold major stakes in the stability of all ecosystems and the maintaining of living conditions on the planet.
2.1. Global commons: common property?
Global commons resemble the notion of common goods introduced by Hugo Grotius in his oeuvre Mare Liberum (1609), in which he exposed his conception of common property. According to him, ‘that which cannot be occupied, or which never has been occupied, cannot be the property of any one, because all property has arisen from occupation’.73 He adds that
‘all that which has been so constituted by nature that although serving some one person it still suffices for the common use of all other persons, is today and ought in perpetuity to remain in the same condition as when it was first created by nature...All things which can be used without loss to anyone else come under this category’.
This conception, which extensively inspired the development of the current regimes, seems to depart from the central concept of individual property in that it renders the objects concerned available to ‘all humans’. Grotius’ reflection was centered around the claim that the use of the areas and resources shared were not prejudicial to their use by others. Under the paradigm of the Anthropocene, in which human activities modify nature, this claim no longer holds. The development of global Commons regime was influenced by Professor José Suarez, who was amongst the first to point out the exploitative nature of the legal regime in the particular case of the law of the sea. These reflections brought the idea that the use of global commons should be controlled and limited, leading to a regime of regulated sharing of these spaces between states, and to the development of the common heritage of humankind (first referred to as the ‘common heritage of mankind’.
2.2. The Common Heritage of Humankind principle (CHH)
The common heritage of humankind has been described as being the ‘territorial expression’ ‘[materialization] of the common interest of mankind’.74
The principle was first introduced by Arvid Pardo75 (Maltese Ambassador for the UN) together
with Elisabeth Mann Borgese in the context of international negotiations to develop the legal
71 Rüdiger Wolfrum, ‘Common Heritage of Mankind’, (2009) Max Planck Encyclopedia of Public International
Law.
72 Nico Schrijver ‘Managing the global commons: common good or common sink?’, (2016) Third World
Quarterly, 37:7, 1252-1267.
73 Hugo Grotius, ‘Mare Liberum’, (1609), 27.
74 Kiss, Alexandre (1985) ‘The common heritage of mankind: utopia or reality?, Law in the International
Community (Summer) 40(3), 428.
75 A. Pardo, ‘The Common Heritage; Selected Papers on Oceans and World Order’ 1967–1974 (Val- letta: Malta
regime of the Law of the Sea.76 Both advocated for the ratification of the principle of Common
heritage of humankind, with the intent to create an ocean governance model based on an international commons management regime, ‘for the benefits of all’.77
Certain key aspects of this principle translate the intent to create a regime based on a commoning approach.
Firstly, the CHH challenges the traditional concept of sovereignty: according to this principle, states must not pursue their national self-interest in the management of the area governed by the principle, but the interest of the international community. That way, the principle embraces a ‘moral force [unifying] humanity’,78 and a new view for humanity to consider and place itself
in its environment.
3. Conceptual potential in the new paradigm 3.1. Commons in and for the Anthropocene
The Anthropocene creates the illusion of one international human actor, responsible for the ecological crisis in the 21st century. Putting aside the issues of oversimplification (notably
regarding the responsibility of a particular group of states in the geological modification of the planet), the advantage of the Anthropocene is that it creates a common denominator for all states. It highlights the existence of a global human responsibility, and interest: that of preserving Nature’s stability.
By showing the interdependence of humankind and nature, the Anthropocene lens also makes explicit the problematic prioritization executed by international law of private (economic) interests. With a transition to an organization of natural resources through the commoning approach, international law would break with the ownership property principle which compliments capitalist relations and with it the appropriation of nature.
The Anthropocene lens and the commoning approach therefore seem to be complementary. Through the Anthropocene critique, one can identify and highlight the problematic nature of the relations created through the resource management mechanisms traditionally developed in international law. The commoning approach offers an alternative to these mechanisms and an opportunity to reconfigure the consideration and hierarchy of existing interests.
76 UNCLOS, Montego Bay, 10 December 1982.
77Taylor Prue, ‘The Common Heritage of Mankind: Expanding the Oceanic Circle’, (2019) The Future of Ocean Governance and Capacity Development, 142-150.
Chapter 3: Case study: Examining the application of the commoning approach in contemporary international law
In their observation of international law and the economic depletion in the global commons, Isabel Feichtner and Surabhi Ranganathan ask the question: ‘how does international law reconcile the designation of the oceans and outer space as humankind’s common heritage, on the one hand, with simultaneously laying the ground for value extraction by individual private enterprises, on the other?’.79 This question is followed closely by another interrogation,
regarding the connection between these antagonist sides: ‘Are the two (inextricably) connected?’80
1. The CHH in the Law of the Sea
The application in the law of the sea constitutes the ‘strongest reflection’ of the common heritage principle according to professor White.81 The CHH is contained under part XI of the
United Nations Convention on the Law of the Sea (UNCLOS).
Before analyzing the regime and its application, it is relevant to include an additional (critical) contextualization of the regime’s development. Professor Ranganathan,82 who recalls the early
debates surrounding the development of the principle, exposes that Ambassador Pardo was mainly preoccupied with the difference in means and technology deepening the gap between Third World states and developed western states, specifically with regards to natural resources in the commons. In the attempt of convincing the international community to adopt a universal regime for the regulation of the deep seabed, Pardo adopted what could be described as a salesman’s speech on the ocean’s riches, implying that all state claims would be accommodated. The way Professor Ranganathan describes it, Pardo lived and fed a ‘techno-utopian fantasy’ regarding the deep seabed, and in turn, contributed to the image of an over-abundant common, commodifying the elements of nature. Pardo emphasized the disconnection between the human and nature spheres, this time by subjecting the marine resources to extensive grabbing in the name of universal sharing and against further colonization trends. 2. Critical analysis of the commoning approach under the UNCLOS
The CHH’s regime is organized under six different features: the area designated is subjected to international cooperation, international management, a regulated utilization, and distribution. There are two additional dimensions: the intertemporality of the principle (regarding the interests of future human generations) and peaceful use.
The non-appropriation of the Area is the main evidence of the ‘commoning’ approach. According to article 137 of the Convention, the Area cannot be the object of appropriation by States.
79 Feichtner, Ranganathan, ‘International Law and Economic Exploitation in the Global Commons’, European
Journal of International Law, Volume 30, Issue 2, May 2019, 541.
80 Ibid.
81 MV White 'The common heritage of mankind: an assessment' (1982) 14 Case W Res J Int'l L, 509-554. 82 Surabhi Ranganathan, ‘Global Commons’, (2019) European Journal of International Law, Volume 27, Issue 3,
In this part, I will observe the organization of the regime and its characteristic features to observe to what extent it creates new socionatural relationships, instances of common ownership (and breaks with traditional ownership) and what place and protection it accords to the environment.
During the length of the analysis, the principle and its application will be confronted with Ostrom’s previously stated designs.
2.1. Regulated utilization and distribution: communal ownership? 2.1.1. Scope of the regime: Definition of the Area
Article 1 of the UNCLOS refers to the ‘Area’ as comprising the deep seabed, ocean floor and subsoil.
There are no definitions of these terms under the convention, which leaves the protected spaces unclearly defined. Naturally, ocean marine resources situated under territorial jurisdiction are excluded.
According to article 137 para 2, the minerals contained in the area may be alienated ‘in accordance with this Part and the rules, regulations and procedures of the Authority’.
The exclusion of the minerals from the non-alienation protective mechanism considerably limits the principle. Enabling the creation of property rights over minerals is in line with the legal strategy that consists in identifying the ‘productive aspects’ of resources as fungible ‘right-claims’.83 This legal designation is a necessity for (economic) development, in the
capitalist framework. It is relevant to add that all living non-human organisms are excluded from the CHH principles: they are dealt with under the regime of the High Seas, in which the ruling principle is the freedom of use.
The delimitation of the area does not fit the first principle designed by Professor Ostrom, which requires a clear definition of the resources within the common and outside.
Therefore, states maintain property rights over these resources, allowing for private economic activity in the Area and economic competition.
2.1.2. Distributive economic justice
The distributional aspect of the concept flows from the intent to minimize the deepening gap between developed and developing states in terms of ocean exploitation (notably due to technological advancement), as an attempt to distributive justice. In practice, it means that the benefits of the deep seabed resources would be shared amongst all, but this is in the form of financial capital84 (and in the case of marine research, knowledge). The deep seabed mining
operationalizes this conversion of ‘natural capital’ into financial capital.
The distribution of the capital theoretically creates a new relationship between states, especially developed and developing states, as previously explained in the description of the commoning approach. National and specific interests are encompassed within the larger ‘interest of
83Hernando De Soto, ‘The Mystery Of Capital: Why Capitalism Triumphs In The West And Fails Everywhere Else’ (2000), 39-67.
84 Jaeckel et al., ‘Sharing Benefits of the Common Heritage of Mankind: Is the Deep Seabed Mining Regime
humankind’: the CHH places these former interests in the ‘long term collective context of common good’.85 While the particular situation and needs of each state should not be ignored,
the state centric approach is omnipresent and limits the possibility of envisioning a (whole) common interest.
In conformity with the intergenerational principle, the equitable sharing must be performed between ‘current’ interests of humankind and future generations interests. However, there seems to be no provision devoted to the allocation of natural resources for the future, or requirement that a quantity of resources be left aside in the UNCLOS or the Implementation agreement. The question arises as to whether the part left to future generations would take the form of economic capital instead of the natural resource of the sea.
Professor Ostrom’s second principle requires that appropriation be well framed in time, space, and quantity of resources according to the local conditions… By local conditions, we understand here notably the availability of resources, the regenerating capacity, and the respect given to the area. Again, the CHH does not fully satisfy this, as observation of the regime and comments of scholars underline the overexploitation of the resources.
2.2. The International Seabed Authority: International cooperation and management The International Seabed Authority (ISA) has exclusive administration of the deep seabed, and its authorization is required for states to manage activities in relations with mineral resources. The common management of the Area performed by the ISA is dealt with in articles 156 to 185 of the Convention.
The ISA is said to act on behalf of mankind,86 as a ‘trustee’, which has resulted in the belief
that the CHH creates a new legal person, humankind.87
The ISA grants exploiting licenses to states and their private actors to authorize the exploitation of the area following examination of different interests: economic development on the one hand, and ecological concerns on the other. The requirement of a license is positive for the protection of the environment, but the concrete application shows that it barely constitutes a limit to the mining performed in the deep seabed.88 Professor Ranganathan underlines the
example of the license granted to Poland to explore and mine a million square meters in the Mid-Atlantic Ridge where the Lost City is located.89
Ostrom’s monitoring principle is fulfilled: the requirement of a supervising body is fulfilled by the ISA. There is a conflict resolution mechanism, which is dealt with by the ITLOS, more specifically the Seabed Dispute Chamber. Regarding the accountability of the actors, the Seabed Dispute Chamber rendered an advisory opinion affirming that the breach of obligations
85Cf. Taylor Prue (2019) (note 77), 143.
86 Article 137(2) UN Convention on the Law of the Sea.
87 The creation of a legal person to represent the ‘community’ of states could enhance the recognition and
acknowledgment of a larger and unified interest.
88 Surabhi Ranganathan, ‘Ocean Floor Grab: International Law and the Making of an Extractive Imaginary’,
(2019) European Journal of International Law, Volume 30, Issue 2, May 2019, 573–600, 591.
89 T. Embury-Dennis, ‘Deep Sea Mining Could Destroy Possible Source of Life on Earth, Warn Scientists’, The
under the CHH leading to environmental harm (regardless of the impact on other states) could give rise to proceedings and the payment of damages.90 The Chamber opens the possibility of
an ‘institutional right to claim’,91 meaning that the ISA would be entitled to compensation, as
well as all states under the erga omnes obligation. However, this has not been applied, which leaves the accountability and sanctions dimension uncertain with regards to Ostrom’s principles.
The Legal and Technical Commission (LTC), organ of the ISA’s Council, is notably tasked with conducting assessments of environmental consequences of the activities of exploration and exploitation performed by states and private actors in the area.92 As mentioned by Professor
Mickelson, it is worth noting that the panel is constituted by up to 30 experts with ‘appropriate qualifications’, but not necessarily with ‘environmental or life science expertise’.93
2.2.1. The place of environmental protection (a discursive function?)
The ISA is required to protect the marine environment from the effects of the deep seabed mining under article 145. Article 150, which recalls that the ‘Policies relating to activities in the Area’ seems to give evidence as to the secondary position devoted to environmental protection in the deep seabed regime. The environmental protection objective94 comes second
in order after the ‘development of resources of the Area’,95 highlighting the centrality of the
exploitation of the seabed.96
The CHH’s lack of substance constitutes a repetitive point of critique: in Koskenniemi’s observations, the ‘law’s substantive emptiness’ provided ‘the means to create a system of global policy which accommodated different national policies’.97 Different observation bodies
(Deep Ocean Stewardship Initiative (DOSI) and the Institute for Advanced Sustainability Studies (IASS)) have pointed the broadness of the concept, and the lack of clarity regarding the implementation of the protection by the ISA.98
90 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the
Area (Seabed Disputes Chamber of the International Tribunal of the Law of the Sea, Case No 17, 1 February 2011).
91 D. French, ‘From the depths: rich pickings of principles of sustainable development and general international
law on the ocean floor — the Seabed Disputes Chamber's 2011 advisory opinion’, Int. J. Mar. Coast. Law 26 (2011) 525–568, http:// dx.doi.org/10.1163/157180811X598691.
92 International Seabed Authority (ISA), The Legal and Technical Commission, available at
http://www.isa.org.jm/la-autoridad/legal-and-technical-commission.
93 In 2014, only 2 of 25 members had such qualifications. Ardron, ‘Ocean Sustainability through Transparency:
Deep Sea Mining and Lessons Learnt from Previous Resource Booms’, (2014) Potsdam Ocean Governance Workshop: Background Document no. 3; Karin Mickelson, ‘Common Heritage of Mankind as a Limit to Exploitation of the Global Commons’, (2019) European Journal of International Law, Volume 30, Issue 2, May 2019, 635–63.
94 Article 150 (b) UNCLOS ’orderly, safe and rational management of the resources of the Area, including the
efficient conduct of activities in the Area and, in accordance with sound principles of conservation, the avoidance of unnecessary waste’.
95 Article 150(a) UNCLOS.
96 Karin Mickelson, ‘Common Heritage of Mankind as a Limit to Exploitation of the Global Commons’, (2019)
European Journal of International Law, Volume 30, Issue 2, May 2019, 635–63.
97 Martti Koskenniemi and Marja Lehto, 'The Privilege of Universality - International Law, Economic Ideology
and Seabed Resources' (1996) 65 Nordic J Int'l L 533.
98 Institute for Advanced Sustainability Studies, Comments on Draft Regulations on Exploitation of Mineral
Resources in the Area, 19 December 2017, at 2–3, available at www.isa.org.jm/files/documents/EN/Regs/2017/A-Sc/IASS.pdf; Deep Ocean Stewardship Initiative (DOSI), Commentary on ‘Draft Regulations on Mineral
Some scholars have analyzed the protection of the environment to be a mere ‘ecological fix’. This means that the environmental protection provided for is merely a ‘a spatial strategy that serves to screen or partially solve an environmental problem that can become a barrier to industrial growth’.
Furthermore, the implementation agreement for the UNCLOS has considerably impacted the balance previously underlined by reinforcing the commercial priority lying in the CHH.99The
environmental protection aspects encompassed in the principle remain untouched and their importance is underlined throughout the agreement, but the implementation of a protective regime is understood to be a concern for the future, while market-oriented approaches constitute an immediate need. The Implementation Agreement mentions in its Annex s.6(1)(a) the requirement to follow ‘sound commercial principles’ in the development of the resources of the Area. Commercial principles do not comprise an ecological dimension which would involve a sustainable use of the resources, but are rather focused on maximization of gain and profit.
3. Externalization of environmental protection
The protection of the seabed resources Encompassed in the Convention merely accounts for the direct externalities caused by the exploitation permitted under the said Convention.100 It
seems that the environmental protection included in the Convention arises mainly as a response to the negative consequences followed by extensive exploitation. The protection of the environment as an independent goal is not a priority and does not benefit from the same consideration as the accomplishment of economic goals of sovereign states.
This point can be observed under the terminology of transactions and externalities. This theorical distinction, recalled by Professor J.E Viñuales,101 is an interesting observational tool
for this particular legal mechanism which he uses to highlight one pattern of the international legal system. In my previous example, through a number of provisions, the UNCLOS and the CHH provide a legal framework for the organization of the transaction, that is, the extraction of resources from the deep seabed. The negative externality flowing from this transaction, i.e. the environmental degradation of the marine environment, is dealt with through distinct provisions and laws, which appear as an additional layer ‘specifically designed not to interfere with the possibility of continuing the transaction’.102 Indeed, the protection of the deep seabed
and the marine environment is an objective and interest valued by the international community, but not one which should come in the way of exploiting the resources contained in these areas as it can be observed.
Exploitation in the Area’, 12 August 2017, at 3, available at www.isa.org.jm/files/documents/EN/Regs/2017/A-Sc/DOSI.pdf The Draft Regulation referred to is 3(3)(k); in Karin Mickelson (note 94), 659.
99 Agreement on the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10
December 1982 (IA) 1994, 1836 UNTS 3.
100 Cf Ranganathan, (note 86), (2019), 609. 101 Cf Viñuales (2020) (note 58), 15. 102 Ibid, 22.
