Category Archives: Global Commons

The Human Rights System as a Conceptual Framework for Environmental Law (R. S. Pathak)

Author(s)

R.S. Pathak

Keywords

Environmental Rights, Natural Order, Future Generations, Common Concern of Mankind, Indigenous People, Anthropocentrism, Environmental Philosophy, Refugees, International Law, Enforcement Procedures

Excerpt

The fundamental significance of environmental protection in shaping the quality of life of a people was reflected, from the commencement of the second half of this century, in the enacted constitutional law of a large number of countries, which include both developed and developing nations. There is a growing volume of environmental legislation and an increasing number of environmental protection agencies.
And as the gap closes between the developed and the developing countries in regard to the significance of the environmental philosophy, an enlarging consensus has become possible in the adoption of global policies and programmes providing for environmental protection.
Environmental law is concerned with our natural heritage and our cultural heritage. The natural heritage includes the atmosphere, the oceans, plant and animal life, water, soils, and other natural resources, both renewable and exhaustible. Our cultural heritage includes the intellectual, artistic, social, and historical record of mankind. Natural heritage is linked with cultural heritage, the survival, protection, and progress of both being interdependent. Man is the bridge between the two. Cultural heritage is the product and record of human perceptions of the natural order through visual, ethical, or mystical perspectives. It issues from man’s vision of his natural heritage. In turn, the protection and preservation of man’s natural heritage depends on human attitudes emanating from cultural, ethical, and religious beliefs.

Citation

(1992) in Environmental Change and International Law: New Challenges and Dimensions, Edith Brown Weiss ed., Chapter 8 (United Nations University Press: Tokyo)

Paper

The Human Rights System as a Conceptual Framework for Environmental Law

Facebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail

Choosing a Future: Social and Legal Aspects of Climate Change (A. Grear and C. Gearty)

Authors

Anna Grear and Conor Gearty

Keywords

Choosing a future, human rights, environment, rights of future generations, climate justice, climate injustice, policy makers, law and society

Abstract

Climate change is far more than a problem of measures of carbon dioxide, methane and the production of pollutants. It signals an urgent crisis of human hierarchy and a crisis of self-understanding. Climate change calls out for new ways of looking, hearing and acting in the world. It calls out for a justice embracing the whole of the vulnerable living order. It calls out for a transformation – in response – of human society and of law itself. This collection offers one unique strand of a far wider search. It points unerringly towards the need, now, to choose between futures.

Citation

(2014) 0 Journal of Human Rights and the Environment 1-7

Publication

Choosing a Future: The Social and Legal Aspects of Climate Change

Facebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail

Blue Carbon: The Role of Healthy Oceans in Binding Carbon (UNEP)

Author

UNEP

Keywords

Climate change; marine ecosystems; vegetated coastal habitat; blue carbon sinks; oceans and ocean ecosystems; policy; climate change initiatives; emissions reductions

Abstract

This report explores the potential for mitigating the impacts of climate change by improved management and protection of marine ecosystems and especially the vegetated coastal habitat, or blue carbon sinks. The objective of this report is to highlight the critical role of the oceans and ocean ecosystems in maintaining our climate and in assisting policy makers to mainstream an oceans agenda into national and international climate change initiatives. While emissions reductions are currently at the centre of the climate change discussions, the critical role of the oceans and ocean ecosystems has been vastly overlooked.

Citation

UNEP, Blue Carbon: The Role of Healthy Oceans in Binding Carbon (UNEP, 2009)

E-Book

Blue Carbon: The Role of Healthy Oceans in Binding Carbon

Facebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail

Environmental protection in Antarctica: the 1991 Protocol (C. Redgwell)

Author

Catherine Redgwell

Keywords

Environment; International law; Antarctica ; International environmental law; Global commons

Abstract

Historical background and main provisions. Legislation Cited: Protocol on Environmental Protection to the Antarctic Treaty 1991

Citation

(1994) 43(3) International & Comparative Law Quarterly 599-634

Paper

Environmental protection in Antarctica : the 1991 Protocol

Facebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail

The Tragedy of the Common Heritage of Mankind (S. Shackelford)

Author

Scott J. Shackelford

Keywords

Public good, common resource, international law, common heritage, arctic, law of the sea, outer space

Abstract

Territorial sovereignty has in large part defined both international relations and international law since the 1648 Treaty of Westphalia. The primary exception to this principle is the international commons. In these areas, which include the deep international seabed, the Arctic, Antarctica, and outer space, concerns over free passage outweighed the great Western powers’ territorial ambitions and Grotius’s mare liberum triumphed. As a result, these regions were gradually regulated to a greater or lesser extent by the Common Heritage of Mankind (CHM) principle, in which theoretically all of humanity became the sovereign over the international commons.

Yet there remains no commonly agreed-to definition of the CHM amongst legal scholars or policymakers. Developing and developed nations disagree over the extent of international regulation required to equitably manage commons resources. These disagreements have played out in the diverse legal regimes of the Antarctic, deep seabed, Arctic, and outer space, each with its own version of the CHM principle. Although no universal definition exists, most conceptions of the CHM share five primary points. First, there can be no private or public appropriation of the commons. Second, representatives from all nations must manage resources since a commons area is considered to belong to everyone. Third, all nations must actively share in the benefits acquired from exploitation of the resources from the common heritage region. Fourth, there can be no weaponry or military installations established in commons areas. Fifth, the commons should be preserved for the benefit of future generations. But now even these basic preconditions are in flux, with states claiming large tracts of the Arctic; the United States, Russia, and China pursuing space weaponry; and oil companies drilling further out into the deep seabed.

As resource competition intensifies at the extremes of human civilization, ‘special sovereignty areas’ (SSAs) and in particular the communal property principle of the CHM are under pressure with the need for greater private economic development. With resources becoming increasingly scarce and technology advancing to meet surging demand, longstanding principles of communal property in the international commons will either be reinterpreted or rewritten outright. The only question is whether this redrafting will occur proactively with the international community laying out a multilateral legal regime to govern these areas, or retroactively, formalizing a sub-optimal status quo. A historical examination of sovereignty coupled with case studies of new territorial claims on the deep Arctic seabed and the re-conception of space law to favor private property rights will demonstrate this process.

By exploring the development and interconnected nature of these branches of international law, we can understand how the regulatory frameworks and theoretical justifications for these areas are evolving and in turn impacting the commons. Existing comparative case studies on commons territories focus on the similarities and differences of commons regimes while neglecting the co-evolution and converging fate of the CHM regions, specifically that all components of the international commons are either now being challenged or already shrinking. The international commons must thus evolve to survive. This fact necessitates a review analyzing how the CHM principle has developed both theoretically and in practice. My analysis will show how CHM development has informed the optimal regime going forward to meet the demands of resource scarcity while at the same time respecting the characteristics of multilateral international cooperation, peaceful use, and communal ownership that have long defined the commons.

This article develops a framework for property rights over natural resources in the international commons by first building a foundation for discussion. Part I analyzes the historical evolution of sovereignty over the commons from Westphalia to such modern notions as popular sovereignty. This analysis demonstrates that a combination of factors drove this evolution, but foremost among them was technological progress. Part II examines property rights in international law, including how the international law of the sea has developed over time to allow greater private economic development. Part III focuses on how proprietary rights already exist in the commons, and illustrates how these rights can be employed to avoid the tragedy of the commons scenario. In the future, the CHM regime will be further modified by capital exporting nations with advanced extractive industries, as has already occurred in the United Nations Convention on the Law of the Sea (UNCLOS), to allow for private exploitation demonstrating the extent to which technological progress impacts sovereignty over the commons. In conclusion, I argue that a modified leasehold system somewhat reminiscent of the Homestead Act could maintain the pillars of the CHM principle while allowing for limited property rights and sustainable economic development in the commons.

Citation

(2009) 28 Stanford Environmental Law Journal 109

Paper

The Tragedy of the Common Heritage of Mankind

Facebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail