Conserving the World's Resources

Introduction

The question of how we share the earth is central to how we live.
The struggle for the use, control, and distribution of the earth and its resources has driven much international legal doctrine.
International law influences how we understand and define resources, closely connected to its imperial origins.
International law backgrounds resource sharing through land appropriation and the transformation of nature into 'resources'.
Land appropriation creates conditions for 'property' and is the 'ground' of law.
Sovereignty is a consequence of land appropriation.
A key function of the state is to ratify the link between man and nature through property rights.
International law is an arena for the struggle between exploiting earth's resources and conserving it.
The tension has translated into jurisdictional disputes, with the sovereign nation's right to exploit its own resources, versus an internationally defined responsibility not to cause harm to other states
The legacy of imperialism has transformed the tension between exploitation and conservation into a contest between promoting 'development' and protecting the environment, revolving around the axis of 'North' and 'South'.

Formal Oppositions and Regulatory Variety

Formal oppositions are complicated by the permeability of the sovereignty of states in the South to developmental interventions, and by the rhetorical deployments of a notion of the 'common interest' by both North and South.
Negotiation over resources includes the contest between the right to exploit and the responsibility to protect the environment, as well as international law of development, foreign investment law, trade rules and intellectual property.
The opposition between exploitation and conservation makes it difficult to reconcile equity between North and South with environmental concerns.
'Sustainable development' is the received way to square the circle of development and environment, but holds out little promise in ecological terms.
Activists are mobilising around a reconceived notion of the 'global commons' as a way to think about both economic and environmental ‘justice'.
The commons is a broad idea, denoting at its most expansive, ‘the common wealth we share'.
In international law doctrine the 'global commons' is a residual category denoting territory or resources beyond the limits of national jurisdiction.
The vestigial status of the commons encourages us to forget the way international law 'backgrounds' our relationship to resources through property rights.
The emergent idea of the 'common concern' is an attempt to overcome some of the limitations of a jurisdictional understanding of the commons, and may hold some promise for the creative function of international law.

Conservation Versus Exploitation

International environmental law is concerned with the global interest in a way that transcends the nation-state.
International environmental lawyers think more in terms of ecosystems and watercourses than state boundaries and sovereign territories.
Chronologies of international environmental law are produced to evince the emergence of a more genuine international community.
Over 480 international agreements, amendments and protocols concluded between 1990 and 2009.
Before the 1970s, there were just a handful of treaties protecting species of commercial value and colonial conservation treaties.
International environmental lawyers tend to be cosmopolitan in orientation, seeing the international as the necessary level of governance.
The expansion of international environmental law emerged as a critique of ‘traditional' international law with its emphasis on the right of states to exercise unfettered sovereignty within territorial boundaries.
The nascent field of international environmental law was responding to the claim to Permanent Sovereignty over Natural Resources (PSNR) (General Assembly Resolution 1803, 19 December 1962).
This claim was launched by the Non-Aligned Movement as part of a broader attempt to renew the international economic order after the end of imperialism.
Demands for the NIEO briefly took flight on the international stage due to a moment of Third-World unity arising from a jump in commodity prices and the oil crisis of 1973 precipitated by the Yom Kippur War.
Within that movement, the claim to PSNR was an attempt to mobilise sovereignty in the name of economic and political independence.
Becoming a state was the only way for a decolonising entity to claim legal personality.
The combination of sovereignty and natural resources seemed to hold the key.
The way the claim to PSNR tried to leverage a state's resource endowment to bring about greater economic equality, largely involved the nationalisation of various natural resource interests.
The nationalisations were an overt reaction to the experience of colonialism in the form of a rejection of what was perceived as ongoing domination by foreign interests.
A series of UN resolutions accompanied the nationalisations during the 1950s and early 1960s.
Once mandatory compensation was agreed upon in principle, the private ownership of natural resources was normalised on the international plane.
The measure of compensation to be paid upon nationalisation remains doctrinally unresolved, in practice the question is resolved by reference to functional jurisdictions dealing with the protection of foreign investors. (Ratner 2008).

International Institutions and Environmental Law

The international is more likely to be generative of the right values than national governments.
The 'sovereigntist' claims catalysed the expansion of international environmental law (Rajagopal 2006; Schrijver 2008).
The background to this was an increased sensitivity to the environment in the rich countries of the North, and particularly within the United States (Brown-Weiss 1992).
Several international environmental institutions arose in this period including the UN Environment Programme (UNEP, 1972), the International Tropical Timber Organisation (1987), and the Basel hazardous waste regime (1989).
UNEP was set up to coordinate the international response to environmental concerns, particularly in developing countries.
Before this time, environmental problems were dealt with on a bilateral basis.
By the late 1970s, international attempts to regulate the environment were focused in part on common resources, but significant attempts were also being made within the emergent field to inscribe limits around the right of states to exploit resources which were avowedly within their respective sovereign territories, but which touched on what we would now think of as the common interest.
The 'no-harm' principle, under which a state's right to use its territory is limited by the obligation to avoid causing serious trans-boundary damage, is a foundational principle of international environmental law.
The origins of the no harm principle lie in the Corfu Channel case; it was consolidated in the Stockholm Declaration of 1972.
Principle 21 of that Declaration captures this delicate balance of tensions, between abstract sovereign interests, but also the political balance between North and South, with its qualification of 'the sovereign right to exploit [a state's] own resources … and the responsibility to ensure that activities within [the state's] jurisdiction and control do not cause damage to other states'.
The 1992 Rio Declaration on Environment and Development updated the principle in terms of precaution.
Principle 15 states: '[w]here there are threats of serious or irreversible damage, lack of full scientific evidence shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.'
A multitude of conventions relevant to resources were concluded during this time, including the Ramsar Convention on Wetlands of International Importance (1971), the Convention for the Conservation of Antarctic Seals (1972) and the Convention on Long-range Transboundary Air Pollution (1979).
The tension between the imperative to exploit, develop and grow, and the counter-imperative to preserve and protect the earth was jurisdictionalised into a contest between the right of a sovereign state to exploit its resources on one hand, and the interests of the 'international community' in the protection of the global environment on the other.
The right being asserted by states in the South to control their own resources could be said to have catalysed the expansion of international environmental law from one perspective, it was attended by an equally fertile regime on the other - the international law of foreign investment.
Foreign investment rules are a significant element in the political economy of global resource regulation in the same way that private law, and not only public law, structures economic relations between parties in domestic legal systems.
Efforts to regulate foreign investment have produced a network of multilateral and, increasingly, bilateral investment treaties (BITs), of which there are now more than 2,400 in force (UN Conference on Trade and Development 2006).
These treaties aim to structure North-South investment relations on the basis of mutual trade and sovereign concessions, though the South in fact gives most concessions.
Creating a separate normative and jurisdictional environment for the effective operation of foreign investment, these treaties rearticulate the natural and human resources of the host nation in terms of their availability for trade.
This rearticulation takes form in the language of comparative advantage: namely the investor state's superior technological capacity to exploit the excess of resources of the receiving (developing) country.
The nature of the functional jurisdiction of foreign investment means that this rearticulation takes place in a regulatory frame removed from public attention at both the international and domestic levels.

Environmental Law and Foreign Investment Law

The combined flourishing of environmental law and foreign investment law is read as the 'progressive development' of international law, in which international law expands because of an increasing sense of global interconnectedness.
Signs of convergence between different fields, such as the economic and the environmental, are taken as positive indications of international law's increasing coherence.
A powerful counter-narrative to this optimistic story of progress is that the expansion of both the environmental and investment regimes could be read as a version of what Rajagopal has diagnosed, following Foucault, as the 'instrument effect' of international law (Rajagopal 2003, 76).
According to that account, since the post-war settlement and the establishment of contemporary international law, claims for global justice made by states in the South have more often than not resulted in the incorporation of uncomfortable claims into the body of international law, usually through the proliferation of institutions.
A key site of institutional expansion in this regard is the World Bank.
Through the conditions attached to loans by both the Bank and its sister organisation the International Monetary Fund (IMF), and in keeping with colonial formulations of land use, states in the South are obliged to exploit the natural resources within their territory to their fullest extent and usually to privatise their ownership and extraction, in order to foster economic growth.
Resources which straddle the line of public utilities, such as water, are also often subject to the orthodoxy of privatisation to effect distribution, frequently causing social activism in response.
The poorest people pay the price for the environmental damage, dislocations, forced migrations and violence that such 'development' causes.
The tension between exploitation and conservation plays out on one level in formal terms as a divide between the national and the international, this jurisdictional divide is belied by the internationalisation of the development project.
The 'international' penetrates the 'developing' state in a way which traditional public international law cannot account for, 'internationalising' state actions in that context.
The development imperative seems to create a problem for the international lawyer who wishes to combine a concern for 'justice' between North and South with a concern for the environment.
Poor countries need to develop.
The tension between a desire for economic justice between North and South and a concern for the environment arises because within international law and institutions we treat development as a proxy for questions of inequality.
The development construct remains tied to ideologies of progress, and comes at the cost of broader political conceptions of ‘justice' which international law might otherwise facilitate.
Economic growth is the classic discourse of the extrinsic use value for resources.
Absent unprecedented technological change able to completely de-link economic growth from 'throughput' growth (that is to increase output by using less input in absolute terms, and generating little or no waste), more growth and a sustainable biosphere are incompatible.
Within a significant section of the international legal community (and beyond), 'sustainable development' is seen as the way to square this particular circle.
Sustainable development is ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs'.
Sustainable development was understood even at the time as a political compromise between North and South, rather than a genuine 'balance' between ecological conservation and capitalist development.
The inherent contradiction between an awareness of the limits of the biosphere, and an approach to alleviating poverty that relies primarily on unlimited growth, continues to haunt attempts to make good the promise of the globalisation of prosperity.

The Commons

The international environmental lawyer is yet bound to nation-states if only to transcend them.
The limitations and possibilities of this constitutive feature of international law are evident in the approach of international law to the idea of the global commons.
'The commons' as a category in international law is defined by where it is; the 'global commons' in international law denotes what many have called 'common areas' (Brunnée 2007, 552).
These are areas located beyond the jurisdiction of nation-states.
Given that the earth is now blanketed with nation-states, there are very few areas left which are usually said to fall into this category: outer space, the high seas and Antarctica.
Outside international legal doctrine, as a concept the 'commons' at its broadest means 'the common wealth we share' (Hardt 2009).
This wealth may be both natural and man-made, though the distinction between the two is not always clear-cut.
In this politically resurgent understanding, the commons comes conceptually before state and international law.
The application of modern (state and international) law to the commons is understood as a process of the progressive appropriation of that wealth in the name of the 'nation', through the mechanism of property rights enforced by state violence and resulting in the dispossession of the many.
Capitalist development can be read as a series of enclosures and the commodification of an ever-expanding sphere of life, aided by modern law.
Within a different tradition, the 'commons' is represented as an area bereft of law.
In this strand of thought, the tragic potential for over-exploitation looms over all rival goods for which no individual or entity has direct responsibility.
The only way to avert the tragedy is by the intervention of modern law through the commodification of the resource, i.e. the creation of property rights over it, whether public or private (Hardin 1968).
The delineation of the 'global commons' in international law in a sense admits of both understandings.
It is usual to contrast two meanings of 'common' as 'res nullius' subject to appropriation by anyone and 'res communis', that which can only be managed internationally.
In doctrinal terms, the global commons denotes those areas not subject to any one state's sovereignty.
According to customary international law, the commons is not open to appropriation by any state, but may freely be used by everyone.

The High Seas and The Global Oceanic Commons

The oldest recognised commons are the high seas, dating back to Grotius' Mare Liberum and the assertion of the notion of the 'freedom of the sea' (Grotius 1608 [1972]).
On the one hand, this freedom alludes to a very different kind of sharing envisaged in the apportionment of the land, and suggests an inherent form of ordering ‘natural' to the sea (Schmitt 1950 [2003]).
On the other, the high seas have, like land, been subject to a logic of appropriation.
The oceans too are criss-crossed with a history of progressive enclosures, both attempted and successful, in which papal and other empires and then modern nation-states have claimed more and more of the oceans via the assertion of sovereign rights over them.
The potential for 'tragedy' has increased commensurately with the technological capacity for the exploitation of the ocean's resources.
In customary international law, the combination of the emphasis on the sovereign state and the default position of the commons as an area of 'freedom' in relation to the exploitation of resources has set the conditions for this tragedy, offering a very limited capacity for a 'community' interest to take regulatory shape.
Questions of 'standing', or the right to bring an action before a court on that basis, remain unresolved (Fitzmaurice 2007).
The potential for a modern resource tragedy really began to take flight in the 1940s when resource exploitation in the form of both seabed mining and distant-water fishing became technically possible.
Various attempts have been made to regulate the global oceanic commons through treaties, but with very mixed results.
Scientific knowledge emerged as an important way to ground the normative basis of management regimes over areas such as the oceanic commons, where jurisdiction based regimes were impossible.
It is a significant counterpoint to enclosure and commodification as the appropriate way to forestall the tragedy of the commons, and continues to play an important strategic role in conservation efforts more broadly, including in relation to climate.
The enclosure of large tracts of the ocean and seabed was precisely the outcome of the tortuous negotiations over the third Law of the Sea Convention (1982), which codified the removal of much of the world's fisheries from the global commons through the adoption of the 'exclusive economic zone'.
Current reports on the state of the oceans suggest that the situation is grave in almost all respects.
World fisheries, for instance, are in crisis (Kaye 2001).
Two-thirds of all fisheries fall into the category of fully or over-exploited, and one-quarter are said to have 'crashed' (Cramer 2008, 271).
Ocean biodiversity is declining rapidly (Secretariat of the Convention on Biological Diversity 2010).
Scientific studies estimate that over 90 per cent of large predatory fish are gone (The Economist 2010, 3) and the population of jellyfish has exploded.
Marine ecosystems remain virtually unprotected in the open ocean (Secretariat of the Convention on Biological Diversity 2010, 49).
Pollution from both ocean- and land-based activities has reached critical dimensions: most human contaminants eventually end up in the sea.
Climatically induced changes such as ocean acidification, increasing water temperatures and thermal expansion (UN Intergovernmental Panel on Climate Change (IPCC) 2007). the state of the oceans is indeed a contemporary tragedy, the full implications of which are yet to be felt.
The United Nations has been the site for the negotiation of three rounds of 'Law of the Sea' conferences since the 1950s (1958, 1960, 1973-1982).
International negotiations over the oceans offer us a particularly rich case through which to study these empirical and reflexive concerns, and for showing how competing approaches to both resources and to the commons have taken shape and played out in international law over a long period of time.
The rhetorical use of an idea of what should rightfully be shared was not confined to the North.
Coming before the NIEO, but ultimately subsumed within it was also the principle of Common Heritage of Mankind.
That principle was an attempt to assert shared control over resources beyond the jurisdiction of any one state.
According to Arvid Pardo's original proposal in 1967, the deep seabed was where the origin of the principle lay, but the same principle was extended to the moon in the 1979 Moon Treaty.
Despite the language of 'heritage', the thrust of the principle was the exploitation of resources and the redistribution of the proceeds, not conservation for future generations.
Given that any state could freely access 'common pool resources,' at the time of the push for a Common Heritage principle it seemed inevitable that the states best equipped to exploit them would do so at the expense of the poorer nations.
Although the principle was included in both the Law of the Sea Convention (LOSC) and the Moon Treaty, it has never become a principle of customary international law, and even the LOSC has since been watered down through the removal in 1994 of the mandatory technology transfer provisions of earlier versions, and by changing the voting rules in ways which are likely to favour the exploitation of the seabed for private profit.

Antarctica

Outer space in general remains jurisdictionally part of the global commons (Outer Space Treaty 1966; Moon Treaty).
The common heritage principle has never been successfully asserted in relation to Antarctica that, although usually grouped taxonomically within the commons, operates under a sui generis and perhaps unrepeatable treaty system the 1959 Antarctic Treaty.
Under that system, the conflicting territorial claims of Australia, Chile, France, New Zealand, Norway and the United Kingdom have all been ‘suspended'.
Attempts to bring Antarctica within the UN system have been unsuccessful.
To date, Antarctica has largely been the domain of scientists who have managed to direct the focus of collective concern to the preservation of that delicately balanced ecosystem.
This has resulted in a successful mining ban, but has been less successful in preventing the decline in fish stocks.
Some, including some states, continue to push for the transformation of Antarctica into a world conservation area.
The fresh water captured in the polar ice caps (around three-quarters of the world's total supply) may become an exploitable resource and, if it does, may become the subject of conflict.
Antarctica's mineral resources become easier to access, the fifty-year ban will come under great pressure.
Antarctica continues to be both crucial to the global climate and an important source of information about it in the form of ice cores, which reveal the secrets of 100,000 years of atmospheric change (World Data Centre for Glaciology, University of Cambridge).

Climate Change and Common Concern

The most critical resource challenge facing the world today is the earth's atmosphere and its capacity to absorb carbon.
The crisis that confronts us is the limitation of the carbon 'sink'.
The danger is not that we are all in the same boat, but that the undoubtedly global effects of climate change will have grossly disparate outcomes.
The struggle over resources has in some ways been generative of international law, the ramifications of climate change and the resource pressures on a finite earth are likely to be another tragic catalyst for disciplinary activity as it feeds feverishly on famine, wars, migration, refugee flows and water shortages.
The 2009 Copenhagen conference was in some ways a redux of the claim to permanent sovereignty over natural resources.
International legal responses have so far continued to hold on to the apron strings of sustainable development, as well as to dealing with the equity question through notions of common and differentiated responsibility.
The notion of 'common concern', distinct from both common heritage and the jurisdictionally defined global commons, is one source of possibility.
Essentially an idea which targets problems and processes rather than resources or areas, the principle has recently gained currency in relation both to climate change and the loss of biodiversity, but it is also homologous to similar principles in earlier treaties which it may build on.
Although the status of the principle is subject to many uncertainties, it potentially offers a vocabulary that offers a counterweight to the nation-state and the centripetal pull of the either/or logic it seems to offer.

Conclusion

The crucial question which remains is what the future role of international law might be in the face of the major challenges of the coming decades, including anthropogenically-induced climate change, pressure on ecosystems, ecological disasters and an unprecedentedly rapid decline in biodiversity.
The political battle between those who regard nature and knowledge as having inherent worth versus those who ‘regard the earth as a collection of "resources" having an intrinsic value no larger than their usefulness at the moment' (Gore 1992, 225) will continue to be waged in international law and institutions.
Oscillations within international law that have surfaced in several chapters in this book, between its technical function and political orientation, between its imperial urge and emancipatory dimension, will not disappear.
For those interested in both equity and environment, or in the question of the responsibility of the international lawyer, rethinking the idea of the commons and international law's relation to it may be useful.
The recuperation from within international law of the commons as a political rather than jurisdictional idea may draw out the way international law is creative.
The international lawyer has a responsibility to be vigilant about what she is involved in creating (and destroying) in and through international law.

The struggle for resource control shapes international law. It influences our understanding of resources, rooted in imperialism, with land appropriation creating property rights that tie sovereignty to resource exploitation.

The tension between exploitation and conservation manifests in conflicts over resources, particularly between wealthy and developing nations, where terms like 'sustainable development' are often ineffectively employed. Activists advocate for the 'global commons' to address economic and environmental justice.

International environmental law addresses global interests beyond nation-states, emphasizing ecosystems over borders. This field has grown significantly since the 1970s, spurred by demands for Permanent Sovereignty over Natural Resources as former colonies sought economic independence.

Global treaties and principles like the 'no-harm' principle attempt to balance state rights with environmental protection, but inherent conflicts between economic growth and ecological sustainability persist.

The concept of the global commons involves areas beyond national jurisdiction, such as the high seas and Antarctica, raising issues about exploitation versus conservation. Challenges like climate change highlight the discourse around resources and equity, emphasizing the need for a collaborative international legal framework to address these global issues.

The future of international law will need to tackle the major challenges of climate change and biodiversity loss, navigating the balance of nature's inherent worth against its exploitation as mere resources.