Part V Key Concepts, Ch.23 Common Areas, Common Heritage, and Common Concern
Edited By: Daniel Bodansky, Jutta Brunnée, Ellen Hey
- Cultural property / heritage — Environmental disputes — Marine environment, protection — Mineral resources — Biodiversity — High seas — Outer space — Erga omnes obligations — Customary international law — Countermeasures
(p. 551) We have entered an era … in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare … International environmental law will need to proceed beyond weighing … rights and obligations … within a closed compartment of individual State self-interest, unrelated to the global concerns of humanity as a whole.1
International law, as traditionally conceived—public international law—was designed to govern the relations of sovereign states. Even today, the structure and processes of international law remain firmly anchored in these ‘Westphalian’ foundations. Since there is no central law-making authority that could legislate in the collective interest, shared understandings must emerge from interstate interactions, deliberations, and negotiations. Through their involvement in the international arena, other actors—individuals, non-governmental organizations (NGOs), business entities, or international institutions (see Part VI of this Handbook)—may help shape these understandings. Yet they become legally binding only when there is sufficient consensus among states to generate a rule of customary international law (see Chapter 19 ‘Formation of Customary International Law and General Principles’) or when states agree to be bound by a treaty (see Chapter 20 ‘Treaty Making and Treaty Evolution’).
On the one hand, then, states are the makers of international law, and it is up to them to develop norms and regimes that reflect their individual values and interests, any collective values or interests they may hold, or ‘the greater interest of humanity and planetary welfare.’ On the other hand, states are also the enforcers of international law, if they so choose. However, this does not necessarily mean that all willing states could enforce such norms or regimes that may exist to protect collective or ‘planetary’ values and interests. Since public international law governs the relations of sovereign and, thus, legally speaking, equal entities, states are generally entitled to take enforcement action only when their rights are violated. Absent specific treaty-based arrangements, it is only in such cases that ‘enforcement’ avenues, such as calling upon the responsible state to cease the violation, seeking reparation, or taking appropriate countermeasures to induce compliance, are available at least in principle (see Chapter 44 ‘International Responsibility and Liability’). Of course, in practice, states only rarely invoke the responsibility of other states for breaches of international law, even when they are legally in a position to do so.
References(p. 552) According to some observers, this inter-national law must, by definition, fail in realizing the common interests of humanity since it orders a ‘world fit for governments’—an ‘unsociety ruled by a collective of self-conceived sovereigns whose authority is derived neither from the totality of international society nor from the people but from the intermediating state-systems.’2 Nothing short of a complete transformation of the global legal order is required to overcome this fatal flaw. Perhaps by professional disposition, most international lawyers are more optimistic about the potential of the existing legal order. Like Judge Weeramantry, whose separate opinion in the Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) is quoted at the beginning of this chapter, many academic commentators note the challenges inherent in the interstate structure of international law but they also find evidence that this structure is being adjusted and expanded to promote the ‘greater interest of humanity.’ Wolfgang Friedmann famously observed that an emerging international law of cooperation had begun to significantly modify the classical law of co-existence of states.3 Bruno Simma traced the shifts in international law from bilateralism to community interest.4 More recently, Ellen Hey posited the emergence of an ‘international public law’ (see Chapter 32 ‘ International Institutions’), through which ‘common-interest normative patterns’ are woven across the traditional ‘inter-state normative patterns.’5
Writers frequently point to international environmental law for evidence of such developments and, as we will see, rightly so. However, it is important to bear in mind that contemporary international environmental law is rooted in concepts that aim to balance competing sovereign interests. Under the foundational ‘no harm’ principle, states’ rights to use their territories and resources find their limits when serious transboundary harm is inflicted, and neighbouring states must tolerate harm that remains below this threshold (see Chapter 22 ‘Transboundary Impacts’). Environmental concerns have legal relevance only to the extent that they coincide with an interference with states’ sovereign rights, usually related to their territorial sovereignty. Areas or environmental concerns beyond states’ sovereign spheres, therefore, are difficult to capture in this framework.
This chapter examines three concepts that have emerged to respond to collective environmental concerns: ‘common areas’, ‘common heritage’, and ‘common concern’. The former are areas located beyond the jurisdiction of states, like the high seas, Antarctica, or outer space. The concept of common heritage of humankind describes the status of certain resources that lie beyond the jurisdiction of states, such as the non-living resources of the seabed. The concept of common concern of humankind, References(p. 553) finally, relates to global environmental problems, like climate change or the conservation of biological diversity, that can only be resolved if states collaborate. As will become apparent, the impact of these three concepts has been felt less in the development and application of customary law than in the development of treaty-based regimes. Today, such regimes institutionalize many collective environmental concerns and provide settings in which states’ commitments can be adjusted and refined on an ongoing basis. Within these regimes, it has also been possible to develop compliance procedures that are actually invoked and that reflect the collective nature of states’ interest in environmental protection.
To protect areas or resources beyond state jurisdiction, and to address common environmental concerns, international environmental law has not merely had to undergo a significant conceptual expansion, but also had to do so against the grain of the foundational structures of international law. As this chapter will illustrate, the field bears the marks of the ongoing push and pull between common-interest and interstate patterns. Yet it has also proven resilient and resourceful in its attempts to meet the attendant challenges.
2 Common Interests and the International Community
Before assessing the specific legal developments surrounding common areas, common heritage, and common concerns, it is helpful to take a broader look at what it is that makes these issues ‘common’, whom they are common to, and how ‘commonality’ is accommodated by contemporary international law. All three concepts deal with environmental challenges that call for collective action. In the case of common concerns, collective action is often quite literally required. It is impossible, for example, to combat global climate change unless states cooperate to reduce greenhouse gas concentrations in the atmosphere. Yet, the core of the concept is arguably the fact that addressing common concerns provides benefits common to all states. Such collective benefits accrue most obviously from dealing with global issues such as climate change. However, they can equally be provided by the protection of certain resources, such as biological diversity, located within the jurisdiction of individual states. A legal dimension can be added to these functional considerations: in common concern situations, states will typically find it difficult, if not impossible, to prove significant harm to their territories or to trace it back to the conduct of specific states. Therefore, a collective response is also required to avoid the legal constraints that individual states would face in attempting to tackle a common concern by invoking the responsibility of another state, assuming they were willing to do so.
(p. 554) Turning to common areas or resources, collaboration is required because they lie beyond the jurisdiction of individual states. Prima facie, all states have access to the commons,and no state is legally in a position to impose a particular approach to their use or protection. In short, it is for functional and legal reasons that areas, resources, or concerns are ‘common’. From this pragmatic definition of commonality it follows, first, that it is states that have the requisite matters in common and, second, that it is all states that do so.The physical and legal attributes of the issues underlying the concepts of common area, common heritage, and common concern place them beyond the reach of individual states.
However, there is another conception of commonality, highlighted in the quote from Judge Weeramantry’s separate opinion. In this conception, the three sets of issues explored in this chapter are among the ‘global concerns of humanity as a whole.’ States, then, are merely the facilitators of solutions and their actions will be measured not simply against their individual or collective goals but also against ‘the greater interests of humanity and planetary welfare.’ Further, rather than simply being a matter of necessity, the ‘greater interests of humanity’ might also be shaped by values that are shared around the world. This proposition might sound reasonable enough, perhaps even self-evident. But it is also complex. For example, while one may be able to deduce in pragmatic fashion that combating climate change requires collective action or that the protection of certain aspects of biodiversity provides benefits for all states, it is considerably more difficult to identify genuinely global environmental values or concerns of humanity in relation to these issues.
How do these different conceptions fit into the legal structures that were sketched in the previous section? The pragmatic account meshes most readily with classical international law. States must arrive at mutually acceptable legal solutions because the underlying concerns are beyond their individual legal capacities. However, such a thin understanding of the law of cooperation does not capture the shifts that have indeed occurred from bilateralism to collective interest or from interstate to common interest patterns. As noted earlier, the implication of the pragmatic account is that certain common issues engage all states. It is possible to conceive of ‘all’ as more than the sum of the parts and as a collective or even a community of states. Indeed, references to the interests and concerns of the ‘international community’ are plentiful in virtually all areas of international law. It might be objected that such references are often purely rhetorical, camouflaging thin cooperation among states as high community aspiration. It may also be said that it is not clear that merely pragmatic commonality—a functional or legal need for cooperation—can give rise to a community in any meaningful sense of the term. Or one might ask whether it is even conceptually possible for there to be a community of sovereign states. At best, some would say, there exists only an international society of states. For present purposes, it is not necessary to enter into these well-worn debates.6 Suffice it to say (p. 555) that the interstate structures of public international law today do reflect the growing legal importance of states’ collective concerns.
As will be shown in the following sections, multilateral environmental agreements (MEAs) have come to facilitate both the pragmatic coordination of individual states’ efforts to address common concerns, and the cultivation and institutionalization of normative communities. However, shifts towards collective concerns are also occurring in the basic structures of general international law. There is agreement on the existence of a category of norms, referred to as jus cogens, from which no derogation is permissible. In deviation from the traditional voluntarist basis of international law, individual states cannot exempt themselves from these norms or make contradictory treaty arrangements. As confirmed by the 1969 Vienna Convention on the Law of Treaties, the modification of such norms, like their initial creation, is a matter for ‘the international community of states as a whole’ (Article 53).
[T]he environment is not an abstraction but represents a living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.8
Do all states have standing to hold violators to account for violations of erga omnes norms? For many commentators, the right of each state to invoke responsibility for violations is inherent in the very concept of obligations erga omnes.9 However, the court has not pronounced itself on this point nor is there clear state practice. The International Law Commission (ILC),10 in its Articles on State Responsibility (see Chapter 44 ‘International Responsibility and Liability’), chose a compromise References(p. 556) course that endorses the idea of collective interest standing but imposes limitations on remedies and countermeasures. The ILC’s caution is hardly surprising. As this part of the law of state responsibility remains contentious among states, the commission’s task was particularly delicate in that it involved not codification of international law, but rather charting a course for its progressive development. Under the articles, then, any state may invoke the responsibility of another for breaches of obligations owed to the international community. Similarly, obligations owed erga omnes partes allow all parties to a treaty to demand compliance with its terms.11 However, if a state is not ‘specially affected’ by the violation, it may seek only the cessation of the violation and may not claim reparation, except in the interest of those injured (Article 48).12 Subtle differences between ‘specially affected’ states and all other beneficiaries of erga omnes obligations also characterize the commission’s approach to countermeasures. Specially affected states may resort to countermeasures, meaning that they may suspend the performance of obligations owed to the responsible state (Article 49). In other words, such states may resort to what would otherwise be violations of international law to induce the responsible state to comply with its obligations. By contrast, all other states may only take ‘lawful measures’ against the violating state, leaving open the precise scope of permissible responses (Article 54).
It remains to be asked whether there is any evidence in international law of the most ambitious conception of commonality and community—the idea that there exists not just a community of necessity, but also of values and that this community is comprised not merely of states but also of all humans. Through the evolution of human rights law, humanitarian law and international criminal law, individual human beings have come to be endowed with international rights and obligations. Yet if the legal conceptualization of an international community of states remains incomplete, it is even less clear what legal position ‘humanity as a whole’ would assume. In the environmental context, the ICJ’s comments on the no harm rule in its Nuclear Weapons advisory opinion appear to suggest that the rule operates to protect not just the interests of states but of all human beings. The same idea, expressed in more open-ended terms, animates Judge Weeramantry’s observations in the Gabčíkovo-Nagymaros case. However, it is not clear that the invocation of the ‘greater interests’of ‘humanity as a whole’, in terms of positive law, reaches beyond the ground covered by jus cogens and obligations erga omnes. To the extent that there are foundational values and interests common to humanity, they may well find their way into international law. However, in terms of the making and enforcement of international law, states remain the key players.
References(p. 557) 3 Conceptual Developments
Common areas are those areas that are located beyond the limits of national jurisdiction; they are not subject to appropriation by states. Not many areas remain that fall into this category: the high seas, outer space, and, arguably, Antarctica. The central implication of the status of an area as ‘common’or ‘common property’ is that all states have open access to it and are entitled to exploit its resources. Thus, unless access is regulated, the potential for a ‘tragedy of the commons’—the progressive overexploitation and, ultimately, the destruction of its resources—looms over common property regimes.13 Aside from states’ duty to cooperate or exchange information, the only generally applicable environmental obligation limiting these freedoms is the no harm rule, which extends to the protection of areas beyond national jurisdiction. As already noted, this dimension of the no harm rule implies an obligation owed erga omnes. However, it remains unclear whether individual states could enforce the protection of common areas on the basis of customary law. To the extent that the no harm rule encompasses an obligation owed to the international community as a whole, the Articles on State Responsibility envisage that all states have standing to confront responsible states. Yet since individual states will rarely be ‘specially affected’ in the sense of the articles, their options would not appear to extend far beyond demanding a stop to the harmful activity. Even these limited options may stand on uncertain ground, as there is no state practice that would unequivocally support their existence in customary law. New Zealand, in its 1973 application to the ICJ for interim measures to stop nuclear testing in the South Pacific, complained, inter alia, about France’s violation of the rights of all members of the international community to be free from nuclear fall-out and from contamination of the high seas and atmosphere.14 In view of France’s unilateral declaration that it would end testing, the court never decided the merits of the case brought by New Zealand, and of Australia’s parallel case. However, various separate or dissenting opinions showed the judges to be divided on the standing issue. Some judges noted that while ‘the existence of a so-called actio popularis in international law is a matter of controversy,’ it ‘may be considered as capable of rational legal argument References(p. 558) and a proper subject of litigation.’15 For others, the applicant states had ‘no legal title … to act as spokesman for the international community.’16
With respect to the marine environment and its resources, one response to the need for regulation of use and protection has been to shrink the areas that lie completely beyond individual states’ jurisdiction. The gradual expansion of states’ territorial seas to 12 miles was followed by the emergence of a 200-mile zone in which states control resource exploitation and exercise regulatory jurisdiction. The 1982 UN Convention on the Law of the Sea (LOSC) consolidates these jurisdictional developments (see Chapter 15 ‘Ocean and Freshwater Resources’). For the remaining high seas areas, the convention’s importance rests in providing a globally applicable set of provisions that expand upon the general rule against transboundary environmental harm. Indeed, the classical freedom of the high seas has been significantly modified by environmental protection requirements.
Under Part XII of the LOSC, states must ‘prevent, reduce and control’ marine pollution and ensure that pollution from sources under their jurisdiction or control does not harm the environment of other states or spread to the open oceans (Article 194). States must cooperate in scientific research and monitor the effects of marine pollution (Articles 200 and 204). The LOSC also calls on states to cooperate in developing appropriate regional or global standards for the protection of the marine environment (Article 197). In turn, when states regulate sources of pollution under their jurisdiction or control, they must do so in light of relevant international standards and procedures (Articles 207–12). It is perhaps with respect to the enforcement of such international standards that the LOSC most clearly reflects the erga omnes nature of obligations to protect the marine environment. To be sure, most enforcement powers fall to states under whose jurisdiction or control pollution occurs (Articles 213–17). Yet the convention also permits port states to institute proceedings regarding discharges into the high seas from any vessel that is voluntarily within one of its facilities (Article 218). Although only two states appear to have implemented this provision, it does represent a notable example of standing to uphold the collective interest.17
A large number of specialized agreements supplement the framework of marine environmental protection obligations set out in the LOSC. Regional and global agreements establish regulatory regimes for all major sources of marine pollution, References(p. 559) such as land-based pollution, ocean dumping, or vessel-source pollution of various kinds.18 By contrast, liability regimes have so far focused only upon vessel source pollution. Four global agreements deal specifically with such liability: the 1992 International Convention on Civil Liability for Oil Pollution Damage, and the related 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, and the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage.19 All four conventions provide for ship owner liability rather than state liability, in the case of the first three supplemented by compensation funds that are financed by contributions from oil or cargo importers. None of the conventions applies to damage caused to the high seas environment. In such cases, then, recourse must be had to the general rules of state responsibility. The LOSC provides little help, containing only the observation that states ‘shall be liable in accordance with international law’ (Article 235).
Not surprisingly, the allocation of marine resources has been among the most contentious issues for international law (see Chapter 16 ‘Biological Resources’). As already suggested, one of the legal responses has been to extend the jurisdictional spheres of individual states into the oceans. The effect has been to remove the marine resources in these areas from the high seas regime and its common property implications. As most fish stocks, for example, are found within the LOSC’s 200-mile exclusive economic zones, only certain high seas stocks, so-called straddling stocks, and highly migratory species remain within the common property regime. The very general provisions of the LOSC on the conservation and management of high seas living resources have since come to be supplemented by the 1995 Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement) and various regional arrangements. The Fish Stocks Agreement represents an important attempt to reinforce the erga omnes nature of the protection and conservation duties under the LOSC. In particular, while sub-regional and regional fisheries organizations and arrangements are the main vehicles for cooperation (Articles 8–14), even non-parties to such mechanisms are ‘not discharged from the obligation to cooperate’ in accordance with the LOSC and the Fish Stocks Agreement (Article 17). Further, many of the agreement’s provisions are addressed to ‘States’ rather than ‘States Parties’, including obligations to cooperate in promoting compliance and enforcement (Articles 19–23). As some observers have noted, in time, the agreement might ‘come to be regarded as establishing new customary rules of access to high seas fishing that are no longer based on high seas References(p. 560) freedoms.’20 However, since enforcement powers, for the time being, remain predominantly with fishing vessels’flag states, illegal fishing in the high seas continues to be a problem. To date, only limited powers have been given to other states to monitor compliance with quotas and conservation requirements.21
Much like the high seas, outer space is treated as ‘common property’ that no state can appropriate and to which, legally speaking, all states have equal access (see Chapter 14 ‘Atmosphere and Outer Space’). These principles are enshrined, for example, in the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (Articles I and II). The treaty does emphasize the interests of ‘all countries’ and of ‘all mankind’, but the focus is on ‘the exploration and use of outer space for peaceful purposes’ (Article I). Only brief reference is made to an obligation to conduct space exploration so as to avoid ‘harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter’ (Article IX). Launch states are liable for damage caused by space objects, but environmental harm is covered only to the extent that it involves damage to another state (Article VII). Except for the extension to damage to the property of intergovernmental organizations, this limitation is maintained in the 1972 Convention on International Liability for Damage Caused by Space Objects (Article 1). Thus, as far as the protection of the commons—be it outer space, the atmosphere beyond the jurisdiction of individual states, or the high seas—is concerned, the space conventions provide only rudimentary standards. Their weakness is compounded by the lingering uncertainties as to the conditions under which the responsibility of a state for damage to the commons could be invoked. Suffice it to point to the Nuclear Tests cases and the earlier discussion of the law of state responsibility for illustration.
Attempts were made to complement the common property regime pertaining to outer space by a common heritage regime, notably through the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Treaty), which is discussed later in this chapter. With respect to the Earth’s atmosphere, more generally speaking (see Chapter 14 ‘Atmosphere and Outer Space’), collective environmental protection interests have come to be expressed through the concept of common concern of humankind. Rather than on the legal status of the atmosphere, the focus here is on specific issues of concern.
Antarctica’s status as a common area differs somewhat from that of the high seas or outer space. Territorial claims have been made for all but a small segment of the References(p. 561) Antarctic continent, but these have been frozen since the adoption of the Antarctic Treaty in 1959 (Article IV). Any state may join this treaty, but decision-making regarding Antarctica is placed in the hands of a relatively limited number of parties that conduct ‘substantial scientific activity’ in Antarctica (Article IX). These ‘consultative parties,’ then, are effectively decision-makers on behalf of the entire international community.
For the purposes of this chapter, several features of the Antarctic Treaty are of particular interest.22 First, Antarctica is designated exclusively for peaceful and scientific uses (Article I). Second, the Antarctic Treaty is flanked by a number of treaties that establish an extensive environmental protection regime for Antarctica. Significantly, these protective efforts apply to the entire Antarctic ecosystem—the Antarctic continent and associated marine ecosystems (see Chapter 24 ‘Ecosystems’). This ecosystem approach was first enshrined in the 1980 Convention on the Conservation of Antarctic Marine Living Resources (Preamble) and has been further elaborated by the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol) (Article 3). Third, the preambles of both of these environmental protection treaties specifically cast them as safeguarding the interests of humankind rather than merely those of the treaty parties. Fourth, the Madrid Protocol put in place a 50-year moratorium on all mineral resource activities other than scientific research (Articles 7 and 25). This arrangement effectively sidelines a 1988 Convention on the Regulation of Antarctic Mineral Resources Activities (Mineral Resources Convention) that failed to enter into force due to lack of support from key states. The moratorium is unique in the sweeping nature of the restriction that it places on the open access normally associated with common property status. Fifth, efforts have also been made to establish an innovative environmental liability regime. Indeed, the now dormant 1988 Mineral Resources Convention contained unprecedented provisions, which would have extended to the restoration or compensation of damage to ecosystems independently of damage to state interests. However, in the resumed discussion of liability issues under the Madrid Protocol, agreement has proven elusive. For the moment, therefore, reparation for damage to the Antarctic commons too could be sought only on the limited and uncertain basis of the law of state responsibility. Given the freezing of claims relating to Antarctica, particular difficulties would arise in determining which parties are entitled to invoke the law of state responsibility.
As suggested in the previous section, one of the essential attributes of the commons under customary international law is the open access of all states to the resources of References(p. 562) these areas. This customary regime contains the seeds of a ‘tragedy of the commons’. As we have seen, a number of treaty-based regimes have emerged to regulate use of common areas in order to safeguard the collective interest of all states in the protection of the commons and conservation of their resources. Whether or not these treaty regimes are successful in protecting the commons from ‘tragedy’ is open to debate. The steady decline of global fish stocks, for example, does not provide much cause for optimism. However, there is yet another dimension to the customary regime that is potentially problematic. While open access, in legal terms, means equal access of all states, in practical terms, access tends to correspond to states’ technological and financial resources.
The emergence of the concept of common heritage of humankind must be seen against this backdrop. In particular, it must be understood as part of the effort by the growing number of newly independent states in the 1960s and 1970s to reshape international law to reflect developing country concerns and priorities. Thus, when Ambassador Arvid Pardo of Malta made his famous proposal that the seabed be declared the common heritage of mankind, a primary motivation was to ensure the equitable sharing of benefits from the exploitation of its resources. Little surprise, then, that industrialized countries were much less enthusiastic about the concept. A 1970 UN General Assembly resolution declaring the seabed to be common heritage had the support of 104 countries, with Western industrialized countries accounting for the 16 abstentions.23 This pattern, of course, is not dissimilar to that of other votes on resolutions through which developing countries have sought to promote the evolution of international law on matters such as self-determination, permanent sovereignty over natural resources, or a New International Economic Order. At any rate, it foreshadowed the rocky path along which the concept of common heritage has been struggling for a foothold.
The concept did come to be the foundation for Part XI of the LOSC, which declares the ‘Area’—the seabed and ocean floor beyond the limits of national jurisdiction—and its resources to be the ‘common heritage of mankind’ (Article 136). Part XI also sketched out what are generally recognized as the core elements of a common heritage regime. The first element is that the Area is a commons and as such not subject to appropriation by individual states (Article 137). Second, activities in the Area must be carried out ‘for the benefit of mankind as a whole’, and proceeds must be equitably shared among all states (Article 140). Third, the Area’s non-living resources are to be managed by an international authority that regulates exploitation, ensures the equitable distribution of proceeds, and takes measures for the protection of the environment (Articles 137 and 145). Finally, the Area must be used exclusively for peaceful purposes (Article 146).
References(p. 563) These elements find rough counterparts in the 1979 Moon Treaty, which declared the moon and its natural resources to be common heritage. While much less developed than the LOSC’s seabed regime, the Moon Treaty too envisaged that an ‘international regime’ would govern any exploitation of resources, and that any benefits derived from such exploitation should be equitably shared by all states (Article 11). However, these two treaties notwithstanding, the concept of common heritage does not appear to have gained much traction. Some of the very countries most likely to undertake the exploitation of the seabed, the United States chief among them, have consistently resisted the application of the concept. Further, a 1994 Agreement on Part XI of the LOSC modified the implementation of Part XI of the LOSC to such an extent that one may ask what remains of the idea that the seabed and its resources are the common heritage of humankind, notwithstanding its reaffirmation in the agreement. The Moon Treaty has not fared much better. It too met with resistance and only a very small number of countries ratified it. In any case, the common heritage concept has not found application beyond the LOSC and the Moon Treaty.
While it has been suggested that Antarctica too constitutes common heritage of humankind,24 the Antarctic Treaty system does not bear this out. It differs in a number of respects from the common heritage regimes described earlier. Chief among them is the fact that the Antarctic regime is not concerned with equitable allocation of proceeds from resource exploitation. Rather, exploitation plans have been put on long-term hold and the primary focus of collective concern is the preservation of the Antarctic ecosystem.
Proposals to extend the reach of the common heritage concept beyond common areas and their resources have also stalled. Both in relation to climate change and biodiversity, the concept of common concern, to be discussed in the next section, has come to be accepted as better reflecting the collective concerns relating to these issues. It was suggested at one point that plant resources were the common heritage of all (see Chapter 16 ‘Biological Resources’). This proposition was bound to be controversial, of course, in that it involved an application of the concept not to a commons, but to resources located within state territory, effectively purporting to convert state property into common property. Not surprisingly, it was rejected in the 1992 Convention on Biological Diversity (CBD), and again in the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture. The proposal is nonetheless worth highlighting because it reveals what may be the central weakness of the common heritage concept: whether applied to common or to state property, it is motivated in large part by states’ desire for access to resources rather than by genuine community interest in their protection.25 Originally, common heritage was References(p. 564) a conceptual device to facilitate developing country access to benefits from resources that were de facto largely inaccessible to them. Conversely, attempts to promote its application to biological resources within states would appear to have been designed to facilitate Northern access to resources that are de jure inaccessible to them. This is not to say that the concept, if actually implemented, would not be beneficial. As noted earlier, the common management and fair allocation it envisages could help address both the potential for over-exploitation and the inequities inherent in the general common area regime. And yet, it seems unlikely that the common heritage concept will deliver on that promise. Its focus on access to resources and benefits gets the concept entangled in and, it appears, sidelined by the competition that these preoccupations entail.
The concepts of common area and common heritage are both inherently limited by their focus on certain geographic areas and their resources. The notion of common concern is conceptually more open ended. Indeed, it has been suggested that the ‘global environment’ is a common concern of humanity.26 This idea is reflected, albeit very delicately, in Principle 7 of the Rio Declaration on Environment and Development, when it calls upon states ‘to cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem.’ However, international practice has taken a much less sweeping approach, suggesting at least some criteria for the identification of common concerns.
First, the concept is equally applicable to environmental concerns arising beyond the jurisdiction of states and within the jurisdiction of individual states. The notion of common concern has gained currency in these two contexts to the extent that the concepts of common area or common heritage were ill-suited to addressing collective environmental concerns, such as those arising from climate change or loss of biological diversity. However, whether the environmental concern relates to the global commons or to resources within the territories of individual states, it is the fact that all states derive common benefits from protective action that elevates it to a matter of common concern.
Second, it is not areas or resources as such that are common concerns. Rather, the concept is targeted more narrowly at specific environmental processes or protective actions. In this manner, the concept focuses upon the essence of what renders a given References(p. 565) concern ‘common’, and treads gingerly around both common property regimes and the territorial sovereignty of individual states. Under the UN Framework Convention on Climate Change (UNFCCC), it is not the atmosphere or even the ‘climate’, as such, that is the common concern but rather the ‘change in the Earth’s climate and its adverse effects’ (preamble).27 In turn, the CBD declares the ‘conservation of biological diversity’ to be a common concern, not biological diversity as such (preamble).28 For good measure, the preamble continues by ‘[r]eaffirming that States have sovereign rights over their own biological resources.’
A third element in the determination of common concerns has been their identification through treaties. In more recent treaty practice, such identification has been explicit, as in the 1992 UNFCCC and the CBD. Other treaties, which were adopted before the concept of common concern gained currency in the early 1990s, circumscribe legal consequences that closely resemble those now associated with common concern regimes. For example, although neither treaty uses the concept as such, both the 1972 Convention for the Protection of the World Cultural and Natural Heritage and the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer (Montreal Protocol) amount to common concern regimes.29
One may ask whether common concerns must be identified by treaty to engender particular legal consequences. Indeed, must they be specifically identified at all? Or is it enough that an issue is of concern to all or a large number of states, and that its resolution requires global cooperation? Clearly, these latter features place an issue within the range of potential common concerns. However, two difficulties arise. The first relates to the need for sufficient international consensus on whether a given issue, say global forest protection,30 is indeed of common concern. There is no reason why such consensus could not find expression in customary international law. Yet treaty negotiations may be more conducive to forging the consensus (see Chapter 20 ‘Treaty Making and Treaty Evolution’). When widely ratified, a treaty may also forestall further debates about this threshold issue. The second difficulty arises from the need to clarify the precise legal ramifications of common concerns. For example, even if it were agreed that global forest protection is of common concern, absent a treaty, the legal implications would be subject to debate.
Of course, over time, a growing number of treaties can also help crystallize the legal consequences that generally attach to common concerns and, thereby, contribute to the development of a customary framework. At this stage, it is possible to References(p. 566) identify a number of commonalities among common concern regimes and, thus, the contours of a potential future customary framework. The concept of common concern does not imply a specific rule for the conduct of states. Nonetheless, it signals that states’ freedom of action may be subject to limits even where other states’ sovereign rights are not affected in the direct transboundary sense envisaged by the no harm principle. Such limits flow precisely from the fact that the concept identifies certain types of degradation of areas or resources beyond the limits of national jurisdiction, and even of resources physically located within the territory of individual states, as of concern to all. Thus, the concept of common concern has the potential to significantly widen the range of environmental protection obligations owed erga omnes.31 All states would have concomitant legal interests and could demand others to adjust their conduct accordingly. Of course, unless a treaty converts what might otherwise be an (emerging) obligation erga omnes into an obligation erga omnes partes, all the constraints of the law of state responsibility that were sketched earlier would still obtain. It may be more helpful, therefore, to conceive of the concept of common concern as entitling, perhaps even requiring, all states to cooperate internationally to address the concern.
States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.
that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions.
References(p. 567) Other global agreements, such as the Montreal Protocol and the CBD, reflect the underlying idea through differentiation in the obligations of developed and developing countries. As with the concept of common concern, the primary effect of the differentiation principle has been to structure treaty-based regimes. Although the principle is widely employed in treaties and frequently invoked in international negotiations, it is difficult to argue that it has acquired customary law status. Much remains controversial about the content of the principle, especially the criteria that define the basis for, and modes of, differentiation.32 Nonetheless, taken together, existing instruments and practice suggest that states are paying attention to considerations of equity in international environmental relations and recognize that approaches to global concerns must reflect both the states’ contributions to a given problem and their abilities to address it. The practical manifestations of the concept range from differentiation of commitments in terms of timelines or degree, to provision of technical and financial assistance to developing countries (see Chapter 41 ‘Technical and Financial Assistance’), and even to making developing country implementation of their commitments contingent upon provision of such assistance.
4 Institutions and Processes
As the evolution of the notions of common area, common heritage, and common concern illustrates, the conceptual framework of international law has developed significantly to address collective environmental concerns. The impact of this evolution, however, has been felt not so much in the development and application of customary law as in the development of treaty-based regimes. These regimes serve to enshrine the three concepts in relation to specific areas or concerns. They also flesh out the concepts in the sense that they clarify their legal implications and outline specific commitments of states. In turn, the concepts frame the regimes and help shape their evolution and implementation.
The reference here to ‘treaty regimes’ highlights a central point. Today, multilateral environmental agreements usually are not one-off contracts between states but rather open-ended ‘sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge.’33 In other words, References(p. 568) the adoption of an MEA is not the endpoint of the international legal process but is instead the beginning. Treaty regimes, including their institutional dimensions, are the subject of other chapters in this Handbook (see Chapter 20 ‘Treaty Making and Treaty Evolution’; Chapter 31 ‘International Institutions’; and Chapter 38 ‘Treaty Bodies’). Indeed, many of the features of treaty regimes that deal with common areas, common heritage, or common concerns, reflect wider trends in international environmental law. However, it is in the context of the legal challenges posed by the collective environmental concerns examined in this chapter that some of these features assume particular importance.
A first important dimension of treaty regimes is that they not only express, but also institutionalize, collective concerns. As the preceding discussion has illustrated, the customary law foundations of international environmental law continue to be trapped in a vicious circle of sorts. Individual states have only limited legal ability to tackle collective concerns while the legal ‘community’ that is said to hold the various concerns in common is not sufficiently constituted to articulate, let alone defend, its collective environmental interests. It is precisely against this backdrop that treaty-based institutionalization plays a central role. It helps constitute the collectives, or ‘communities’, that otherwise remain elusive but that are crucial to the legal enterprise of addressing common environmental concerns.
The institutionalization of collective concerns within treaty regimes occurs at a number of levels. Many environmental regimes establish or collaborate with forums for the exchange among scientific or technical experts (see Chapter 34 ‘Epistemic Communities’). For example, the UNFCCC established a permanent Subsidiary Body for Scientific and Technological Advice (Article 9). The regime also draws upon the expertise of the Intergovernmental Panel on Climate Change, which operates under the auspices of the World Meteorological Organization and the United Nations Environment Programme. Expert forums such as these are important in building consensus around the nature of collective concerns and the collective action that is required to address them. However, their role in strengthening a regime’s common interest patterns, to return to Hey’s terminology, is an ongoing one. Once decisions on the general thrust of collective action are made, scientific or technical expert bodies continue to make important contributions in the elaboration, refinement, or adjustment of regulatory strategies.
The legal development of the regime is usually in the hands of a plenary body, such as a Conference of the Parties (COP). The spectrum of opinions on the role of COPs is wide. Some observers see the emergence of issue-specific global legislatures.34 Others argue that COPs increasingly resemble international organizations.35 For yet References(p. 569) others, a COP is ultimately a diplomatic conference,36 with the important difference that it facilitates continuous processes and interlocking engagements between technical experts, policy-makers, and lawyers. Whatever the case may be, COPs and their subsidiary bodies have come to be central venues for international law-making activities around collective concerns.
The phenomenon of treaty-based law-making is the second major characteristic of international law’s approach to collective environmental concerns. This broader MEA phenomenon is of particular importance in the collective concern context because it significantly enhances the potential for legitimate outcomes (see Chaper 30 ‘Legitimacy’). Treaty-based law-making removes from debate the basic questions of who is entitled to make law for the collective and on what terms. On the one hand, collective concern treaties enshrine the background assumption that law-making is a collective enterprise. On the other hand, they settle the terms of law-making such that, while states’ sovereignty is respected through consent requirements, consent processes are structured so as to maximize opportunities for collective outcomes (see Chapter 20 ‘Treaty Making and Treaty Evolution’ and Chapter 32 ‘International Institutions’). Thus, the arguably most important feature of treaty-based law-making is the range of strategies that have emerged to strike a balance between the constraints of the consent requirement and the need for timely collective action.37 To be sure, much regime development still occurs through ordinary consent-based methods. When an agreement is amended, or when an additional treaty, such as a protocol, is adopted, individual states are bound only when they consent to these instruments. And yet, the ‘edges of consent’ have softened considerably.38 Under many agreements, especially when technical issues are involved, regulatory approaches can be expanded with effect for all parties except for those that explicitly opt out. Perhaps more significantly, an ever-growing array of regulatory detail is adopted through decisions of plenary bodies, without subsequent formal consent by individual states. In most cases, the resulting standards will not be legally binding, although they may well contain mandatory language.
A hybrid approach can by found in the Antarctic Treaty. Since its entry into force in 1961, no use has been made of its formal amendment procedure (Article XII). Instead, parties have relied upon the adoption of so-called ‘recommended measures’ (Article IX). Some of these measures are drafted in obligatory language and modify the treaty’s legal framework, or even alter the rights and obligations of parties. The measures under the Antarctic Treaty become ‘effective’ for a party upon approval—not ratification—at the domestic level by all other parties.39 The practice under the References(p. 570) Antarctic Treaty, which applies also to the Madrid Protocol, provides an early example of the technically non-binding, but nonetheless ‘mandatory’ rule-making that is now common under modern environmental agreements. For example, under the UNFCCC and its Kyoto Protocol, it appears that the bulk of the regulatory flesh is being put on the treaty bones through simple decisions of the plenary body. Thus, provisions on central treaty matters, ranging from inventory and monitoring requirements to the protocol’s mechanisms for trading of emission units or reduction credits, are adopted in ‘soft’ form.40 As the climate change regime illustrates, even soft standards are subject to tough and protracted negotiations. Nonetheless, they do facilitate agreement upon collective action and adoption of standards applicable to all parties—an important feature for efforts to address collective concerns. Equally important is that soft regulatory processes allow speedier regime development and adjustment than processes that involve subsequent ratification by individual states.
One further dimension to regime-based law-making processes is of interest. As we have seen, to the extent that international law acknowledges environmental concerns of the ‘international community’, the practical ramifications remain focused upon a community of states. Treaty regimes provide one arena in which non-state actors, such as international organizations, NGOs, or business entities can be directly engaged. Suffice it to point again to the climate change regime, in which non-state actors participate in myriad ways. For example, they can have observer status at COP meetings, distribute information or policy papers, meet with, or even belong to, official delegations, or report on negotiations. Although, in a formal sense, law-making remains entirely in the hands of states, non-state actors thus have considerable opportunities to provide input into law-making processes or even help shape their outcomes. In short, in the context of treaty regimes, we find at least tentative developments towards a more inclusive approach to ‘global concerns of humanity as a whole.’
The third key feature of collective concern regimes is their approach to compliance and dispute settlement. As noted at various points, customary international law provides only limited options for compelling compliance with collective interest norms. In addition, states only very rarely employ even the available enforcement options provided by the law of state responsibility. Further, because collective concern issues are by definition polycentric, they do not lend themselves to traditional, bilateral dispute settlement.41 At any rate, options for judicial dispute settlement, for example by the ICJ, are generally limited by the requirement that all parties must accept the court’s jurisdiction.
References(p. 571) Part XV of the LOSC is unusual in this latter respect. Any party to the convention can unilaterally bring environmental disputes, including disputes relating to the high seas, before the International Tribunal for the Law of the Sea (ITLOS), the ICJ, or an arbitral tribunal (Articles 287 and 288). The relevant court or tribunal is empowered to prescribe provisional measures to forestall serious harm to the marine environment pending its final decision (Article 290). ITLOS has done so in one case concerning high seas resources—the dispute between Australia and New Zealand on the one hand and Japan on the other regarding the conservation and management of southern bluefin tuna.42 Finally, where parties agree to jointly bring a dispute before ITLOS, ‘entities other than States Parties’ can join the proceedings (Article 20 of the ITLOS Statute). It would appear, then, that the ITLOS Statute recognizes in at least a limited manner that the ‘community’ interested in the protection of the marine environment may also include private parties, NGOs, or international organizations.43
However, compulsory dispute settlement is rare also in environmental agreements, partly because of states’ reluctance to resort to it, and partly because it may not satisfactorily address the collective concerns underlying the agreement. Quite apart from the diffuse nature of injuries to parties’ common interest in compliance with treaty commitments, addressing the regime’s collective concerns requires the greatest possible degree of compliance by the widest possible range of parties. The result has been the emergence of procedures that assess parties’ compliance with their treaty commitments and provide for a range of measures to facilitate or compel compliance (see Chapter 43 ‘Compliance Procedures’).
Cooperative facilitation of compliance is the primary objective of the majority of existing compliance procedures. The procedure under the Montreal Protocol neatly encapsulates this approach, aimed, as it is, at ‘securing an amicable solution … on the basis of respect for the provisions of the Protocol’ (para. 8). This pragmatic approach recognizes the fact that non-complying parties are most likely to be states with genuine capacity limitations. By contrast, in the case of the Kyoto Protocol, only developed countries and transition countries currently have emission reduction commitments. Therefore, capacity building and financial assistance are less likely to be appropriate in promoting compliance. Moreover, the Kyoto Protocol regime has certain unique features, such as its emissions trading mechanisms, that necessitate a tougher approach to compliance. The Kyoto Protocol’s compliance procedure, thus, explicitly declares its goals to ‘facilitate, promote and enforce compliance’ with the protocol (para. I).
All compliance procedures have in common that they can be triggered by any state party, including by a state about its own performance. Yet there is also evidence of References(p. 572) subtle movement towards a common interest pattern. For example, under the Montreal Protocol, the treaty’s Secretariat can and does trigger the procedure by raising possible instances of non-compliance in its annual reports on the parties’ performance and by informing the Implementation Committee (para. 3). Under the Kyoto Protocol procedure, the compliance procedure will be automatically triggered when an expert review process reveals questions about a party’s implementation of its commitments (para. VI.1). While both procedures thus allow for a form of a collective-interest trigger, they do remain anchored in inter-state foundations. For example, under the Kyoto Protocol procedure, NGOs may submit ‘factual and technical information’ relevant to the compliance review (para. VIII.4), have access to meetings of the compliance bodies unless parties object (para. IX.2), and have access to the findings of the compliance body (para. VIII.7). Yet they cannot trigger the procedure or make formal submissions. Thus, with respect to compliance, the ‘international community’ in the climate change regime remains primarily one of states.
As the slow evolution of concepts such as obligations erga omnes and of related aspects of the law of state responsibility illustrates, international law continues to struggle with ‘collective’ or ‘community’ aspirations. Seen against this backdrop, international environmental law has made remarkable progress in its responses to both ‘concerns about the commons’ and ‘common concerns’. Granted, the development of customary law on common areas, common heritage, and common concerns has been sluggish. Yet irrespective of their binding force, these three concepts have played significant roles in framing treaty-based efforts. In turn, treaties have fleshed out each of the concepts, and the emerging normative patterns may eventually feed back into the development of customary law. Of course, it is an open question whether effective protection of collective interests could be mounted on the basis of customary environmental law and the rules of state responsibility, especially since the latter are so rarely invoked. It is all the more important, then, that treaty regimes provide practical options for the protection of common interests. It is also safe to predict that they will remain the primary venues for ‘collective concern’ law-making. Often, the focus is on cooperation for functional or legal reasons. But treaty regimes have at least the potential to turn pragmatic cooperation into genuine normative communities. While by no means perfect, treaty regimes therefore offer promising settings in which to mediate between ‘individual State interest’ and ‘the global concerns of humanity as a whole.’44
References(p. 573) Recommended Reading
- F. Biermann, ‘ “Common Concerns of Humankind” and National Sovereignty,’ in Globalism: People, Profits and Progress: Proceedings of the Thirtieth Annual Conference of the Canadian Council on International Law (Canadian Council on International Law, 2002) 158.
- J. Charney, ‘Third State Remedies for Environmental Damage to the World’s Common Spaces,’ in F. Francioni and T. Scovazzi, eds., International Responsibility for Environmental Harm (Boston: Graham and Trotman, 1991) 149.
- G. Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243.
- D. Kritsiosis, ‘Imagining the International Community’ (2002) 13 Eur. J. Int’l L. 268.
- A. Paulus, Die Internationale Gemeinschaft im Völkerrecht (München: Verlag C.H. Beck, 2001).
- J. Peel, ‘New State Responsibility Rules and Compliance with Multilateral Environmental Obligations: Some Case Studies of How the New Rules Might Apply in the International Environmental Context’ (2001) 10 R.E.C.I.E.L. 82.
- M. Ragazzi, The Concept of International Obligations Erga Omnes (Oxford: Oxford University Press, 1997).
- B. Simma, From Bilateralism to Community Interest in International Law, (1994-VI) 250 Recueil des cours 217.
- C.J. Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge: Cambridge University Press, 2005).
6 For a comprehensive analysis, see A. Paulus, Die Internationale Gemeinschaft im Völkerrecht (München: Verlag C.H. Beck, 2001). See also D. Kritsiosis, ‘Imagining the International Community’ (2002) 13 Eur. J. Int’l L. 268.
11 For a discussion of the nuances of the regime set out in the articles, see P.-M. Dupuy, ‘A General Stocktaking of the Connections between the Multilateral Dimension of Obligations and Codification of the Law of Responsibility’ (2002) 13 Eur. J. Int’l L. 1053 at 1069–76.
14 Nuclear Tests case (New Zealand v. France), Interim Measures,  I.C.J. Rep. 135 at 139. Australia, in a parallel case, did not frame its claim explicitly in terms of the rights of all members of the international community. It did, however, argue that the French tests would infringe the freedom of the high seas. See Nuclear Tests case (Australia v. France), Interim Measures,  I.C.J. Rep. 99 at 103.
17 P. Birnie and A. Boyle, International Law and the Environment, 2nd edition (Oxford: Oxford University Press, 2002) at 376. M. Ragazzi, The Concept of International Obligations Erga Omnes (Oxford: Oxford University Press, 1997) at 162.
19 For an overview, see R.R. Churchill, ‘Facilitating (Transnational) Civil Liability Litigation for Environmental Damage by Means of Treaties: Progress, Problems, and Prospects’ (2001) 12 Y.B. Int’l Envt’l L. 3.
26 See World Conservation Union, Draft International Covenant on Environment and Development, 3rd edition (Gland: IUCN, 2004) at Article 3. See also International Law Association (ILA), New Delhi Declaration of Principles of International Law Relating to Sustainable Development, in ILA, Report of the Seventieth Conference (New Delhi: ILA, 2002) at para. 1.3, concluding that the ‘protection, preservation and enhancement of the natural environment’ are common concerns of humankind.
29 Although the preamble to the Convention for the Protection of the World Cultural and Natural Heritage declares that certain natural areas or sites should be ‘preserved as part of the world heritage of mankind as a whole,’ its preoccupation is arguably more in line with the concept of common concern. Notably, the preamble goes on to emphasize the duty of ‘the international community as a whole to participate in the protection of … natural heritage of outstanding universal value.’
30 See J. Brunnée, ‘A Conceptual Framework for an International Forest Convention: Customary Law and Emerging Principles,’ in Canadian Council on International Law, ed., Global Forests and International Environmental Law (The Hague: Kluwer Law International, 1996) 41 at 55–62.
32 For a thorough analysis, see C.D. Stone, ‘Common but Differentiated Responsibilities in International Law’ (2004) 98 A.J.I.L. 276. See also S. Biniaz, ‘Common but Differentiated Responsibility—Remarks,’ in Proceedings of the Ninety-Sixth Annual Meeting of the American Society of International Law (Washington, DC: American Society of International Law, 2002) 359.
34 See D. Anderson, ‘Law-Making Processes in the UN System—Some Impressions’ (1998) 2 Max Planck Y.B. UN L. 23 at 49; and G. Palmer, ‘New Ways to Make International Environmental Law’ (1992) 86 A.J.I.L. 259.
40 According to some observers, the Kyoto Protocol empowers the COP to adopt legally binding decisions on certain matters, such as international emissions trading. See Churchill and Ulfstein, note 35 above at 639–40.
41 See Weeramantry, note 1 above, pointing to the additional problems that flow from the fact that the court’s procedures, focused as they are upon disputes between specific state parties, are ill-suited to doing ‘justice to rights and obligations of an erga omnes character.’
42 Southern Bluefin Tuna cases (Provisional Measures), 38 I.L.M. 1624 (1999). Provisional measures were also indicated in the MOX plant dispute between Ireland and the United Kingdom concerning a British plant for the processing of radioactive materials. See ITLOS Order, 3 December 2001, 41 I.L.M. 405 (2001).