1036027

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IRE0010.1177/00471178211036027International RelationsGarcia

Article

International Relations

Global commons law:

2021, Vol. 35(3) 422­–445
© The Author(s) 2021
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DOI: 10.1177/00471178211036027
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heritage

Denise Garcia
Northeastern University

Abstract
The global commons – the high seas and the seabed, Antarctica, the atmosphere (including the
ozone layer and the climate system), and outer space – have a distinctive status in international
relations because these domains play a vital role in ensuring humankind’s survival, the subsistence
of the planet, and the intergenerational custodianship of the human heritage. I call global commons
law an ‘uncommon’ realm within international law that is composed of principles and practices
that dovetail with treaties aimed at protecting humankind. These laws have an atypical purpose
and are characterized by a commonality of interests based on the view that safeguarding these
domains is in the interests of developing and developed countries alike, with scientists, activists,
and international institutions jointly having a convening power to maintain peace. To elaborate on
the impact and implications of the global commons law, I explain three of its functions: guardianship
of future generations; creation of a comity for peace and peaceful settlement of disputes; and
setting norms as the foundation for peaceful relations. These norms in turn have four key
objectives: they provide common ground for peace and cooperation; ensure equity between rich
and poor countries; create a forum for equitable burden-sharing; and prevent future harm. The
global commons face threats – melting ice caps, greenhouse gases, and overfishing – that imperil
the survival of humanity. This is then the moment to update and strengthen the mechanisms of
global commons law.

Keywords
Antarctica, arctic, climate change, global commons, global commons law, international law

Corresponding author:
Denise Garcia, Northeastern University, 360 Huntington Avenue, Boston, MA 02115-5005, USA.
Email: d.garcia@northeastern.edu
Garcia 423

Introduction
Despite the hype about rising tensions and growing militarization, there is a noteworthy
absence of conflict in the areas known as the ‘global commons’: the high seas – includ-
ing the resources on the deep seabed – outer space, the Moon and other celestial bodies,
the two polar regions, and the atmosphere (including the ozone layer and the climate
system).1 There is competition over resources and sovereignty claims in the South China
Sea,2 and outer space has been militarized, that is militaries rely on space for reconnais-
sance, GPS functions, and general intelligence gathering; however, this does not mean
these domains have been weaponized.3 Despite everything, peace prevails in these non-
national domains. The observance of the rules of international law and global coopera-
tion is ubiquitous – in defiance of the expectations that resource-rich areas are prone to
conflict.4 However, current existential challenges in these areas, including over-exploita-
tion and extreme deterioration – melting ice caps, human exploitation and over-fishing
in the high seas, and high concentration of greenhouse gases – require updated and
strengthened regulatory frameworks and novel approaches to global diplomacy. The
global commons provide a rich laboratory setting to study the shifting global order in
which greater competition among the major powers is again on the horizon to threaten
peace and stability.5 This shifting order toward more visible rivalry dovetails with mount-
ing security challenges of a non-military nature that endangers all humanity.
The stewardship of the global commons demands renewed attention to three phenom-
ena related to the general state of accelerating global environmental decline. The first is
the effects of the intensifying climate crisis, especially melting glaciers and polar ice
caps, and ocean acidification.6 Record temperatures are being documented consistently,
in the Arctic in particular,7 which points to humanity’s exceeding the planetary bounda-
ries, that is the limits within which humanity can live safely on the planet.8 The second
phenomenon is new technologies that allow commercial exploitation of the seabed and
outer space.9 The third is multilateral processes now underway to update the outdated
global commons legal architecture through negotiation of a biodiversity treaty on the
high seas and the deep seabed,10 and on the protection of the atmosphere, especially
urgent as climate change gains momentum.11
The distinctive nature of these domains – hard to access and inhospitable wintry envi-
ronments – has fostered the formation of innovative governance arrangements; despite
the promise of newfound wealth that could generate conflict, peaceful relations have
prevailed, and countries have thus far eschewed conflictual competition. I argue that the
global commons have a different status in international law and components from its
legal architecture make up a branch of international law that I call global commons law.12
The global commons are domains that have an inherent value for humankind and the
planet, and therefore have assumed a non-national status in international relations. This
is empirically relevant because most international relations theories are built upon the
premise that state sovereignty over a defined territory is the organizing tenet. In contrast,
the global commons retain the defining ‘non-national’ characteristic in which jurisdic-
tional claims are barred. This renders legal ownership irrelevant, privileging common
peaceful purposes, and joint exploration instead. Instead of competition leading to con-
flict, states and all else should act as guardians of the interests of future generations. This
424 International Relations 35(3)

gives the global commons their unique status. The dearth of conflict and the prevalence
of cooperation is explained partially by widely agreed rules of international law and
innovative principles of governance that buttress them.13 Three important guiding prin-
ciples inform my argument on a governance structure that pertains to humanity as a
whole: no country can claim jurisdiction over these areas; no country can weaponize
them; and cooperation is the main characteristic.14
My approach is analytically relevant but goes beyond most international relations
perspectives – especially that of realism, which posits that competition over land, oil, gas,
and other resources might lead to conflict.15 These perspectives not only fail to take into
account the international legal framework that governs these areas, but also lack a peace
hypothesis which accounts for cooperation that emerges despite states’ self-interests and
that leads to co-existence.
The reality of prevailing cooperation suggests that novel international relations per-
spectives are needed to explain peace in the global commons; in my contribution, I will
focus on answering this Special Issue’s guiding questions: What analytical tools do we
need to study IR in areas that per definition do not belong to any one state? What char-
acterizes and explains state and non-state actors’ interactions and patterns of cooperation
and conflict in the global commons? I do this by advancing two arguments:

•• Global commons law differs from other parts of international law as it fulfills a
distinct purpose, namely the protection of certain domains of the Earth for the
benefit of all humankind. Rather than being developed to satisfy the interests of
states, the purpose of global commons law is the intergenerational protection of
the human heritage (the focus of this Special Issue), with heritage referring to
what belongs to all individuals, now and in the future, unrelated to state
citizenship.
•• Global commons law helps to avoid conflict and to promote cooperation. I argue
that this is due, in part, to the norms, principles, and reiterated practices and meet-
ings to implement international treaties, and to states’ participation in overlapping
global governing arrangements (e.g. NATO, the UN’s Law of the Sea Convention,
and the European Union).16

To develop my arguments, I examine primary documents and the opinions of recognized

jurists to determine the impact of the principles when codified into the germane treaties,
principally guided by ideas from the principles of the common heritage of humankind
(originally called ‘common heritage of mankind’), common concern, intergenerational
equity, and the precautionary principle. Combined, this distinctive corpus of international
rules, norms, and practices constitutes a formidable custodian of the global commons and
forms a platform for scientists, aboriginal communities, activists, and states to play a role
in safeguarding these planetary domains. This Special Issue’s Human Heritage model has
guided my explanation of how cooperation has evolved to protect the global commons
through a legal framework that safeguards the non-national domains on the planet at pre-
sent and for future generations.17 This aspect has been largely ignored in the scholarship
on international relations. Human Heritage is not utopian and is reflected in states’ prac-
tice. In global commons law, safeguarding the planet’s global commons and related
Garcia 425

matters of concern (biodiversity loss, deforestation, and water scarcity, for instance) takes
precedence over state sovereignty.18 Humanity – the partnership between governments,
scientists, individuals, aboriginal communities, and international institutions – has in this
instance adopted a stance that supersedes the pursuit of the national interest.
This article is organized as follows: I situate my ‘dearth of conflict assumption’ within
germane literature and go on to explain my analytical framework: the combined legal
protections ascribed to the global commons form a distinct branch of international law19
that I call ‘global commons law’, an uncommon realm within international law because
it serves a distinctive purpose and is characterized by a commonality of interests that
transcend the state, and the view that the necessity of protection – forged by developing
and developed countries alike – that should outweigh the national interests.20 Hence, to
clarify what ‘global commons law’ means, I explain three purposes associated with it:

-  Guardianship of future generations;

-  Setting norms as the foundation for peaceful relations;
-  Creation of a comity for peace and settling disputes peacefully.

The dearth of conflict

The Human Heritage model in this Special Issue confronts the prevalent notion of inter-
national relations as constituted by independent sovereign units that compete for
resource-rich territories and approach threats by using military tools.21 The main interna-
tional treaties that form global commons law (see Table 1 below) declare that the global
commons are ‘non-national’ and no state can claim jurisdiction over them despite the
promise of riches.22 Realists and neo-realists cannot explain the conditions that enabled
the global commons to have an unusual political environment of cooperation and a dis-
tinct legal status in international relations,23 because they lack a systemic peace hypoth-
esis informed by international law and by ideas that protect humanity as a whole. Realists
contend that states are inclined to conflict, especially in potentially resource-rich areas.24
These theoretical accounts ignore the role of science,25 epistemic communities,26 and the
behavior-changing and constraining effect of international law’s rule, norms, and princi-
ples.27 A rules-bare anarchic world with no central authority discounts the value of
cooperation.
Liberal institutionalists advance reasons for the prevalence of more sustained coop-
eration,28 and a prolific literature on environmental governance has shown how regimes
in this area can prevent conflict by reiterated meetings to implement treaties in a variety
of issue areas.29 These agreements create communities that interact with states in pre-
venting conflict among the members by reducing uncertainty.30 Regime scholars offer a
more nuanced approach by explaining arrangements in the form of international treaties
that benefit the state and its interests, and therefore advance international cooperation.31
Going further, and gaining momentum, states create new treaties for humanitarian pur-
poses with a humanity-centered goal, often in opposition to the aspirations of the most
powerful states (the Nobel Prize-winning campaign that gave rise to the 2017 Nuclear
Ban Treaty is an example).32
 426

Table 1.  Global Commons Law.

The domains International treaties and institutions Challenges and updating needs Guiding principles
Global Commons Law
The High Seas The Convention on the High Seas 1958 A new treaty Common Heritage of
UNCLOS 1982 and Agreement Relating to the Implementation Create marine protected areas Humankind (CHH)
of Part XI of the United Nations Convention on the Law of – regions that are off-limits
the Sea of 10 December 1982, adopted July 28, 1994, 1836 to at least some kinds of
U.N.T.S. commercial activity
Commission on the Limits of the Continental Shelf (NY) Boost biodiversity in
decimated regions
International Seabed Authority (UNCLOS) Resilience to stressors
Outer Space Legal framework Debris CHH
The ‘Outer Space Treaty’ 1967 Increasing militarization Common Concern of
Rescue Agreement 1968 Humankind
The Moon Agreement 1979
Institutions
Committee on the Peaceful Uses of Outer Space (NY)
United Nations Office for Outer Space Affairs (Vienna)
Atmosphere The Montreal Protocol on Ozone 1987 Gaining strong momentum for CHH
(includes ozone implementation
layer and the United Nations Framework Convention on Climate Change Montreal is universal and Common Concern of
climate system) 1992 serves as guidance Humanity
Kyoto Protocol 1997 Intergenerational
Paris Agreements 2015 Equity
UNFCCC Secretariat Common but differentiated
Bonn responsibilities
(Continued)
International Relations 35(3)
 Garcia

Table 1. (Continued)

The domains International treaties and institutions Challenges and updating needs Guiding principles
Antarctica Antarctic Treaty System Heightened pressures from CHH
Secretariat: Buenos Aires climate change
The 1959 Antarctic Treaty
The 1972 Convention for the Conservation of Antarctic Seals Ross Sea marine protected
The 1980 Convention on the Conservation of Antarctic areas could serve as model for
Marine Living Resources updates
The 1982 Commission for the Conservation of Antarctic
Marine Living Resources
The 1991 Protocol on Environmental Protection to the
Antarctic Treaty
Arctic (Its High The Arctic Council Success CHH
Seas) Secretariat: Tromso Challenges: increasing
militarization
Agreement on Cooperation on Aeronautical and Maritime Heightened pressures
Search and Rescue in the Arctic (signed 2011) from climate change and
Agreement on Cooperation on Marine Oil Pollution globalization
Preparedness and Response in the Arctic (signed 2013)
Agreement on Enhancing International Arctic Scientific
Cooperation (signed 2017)
427
428 International Relations 35(3)

I account for how the rules and norms under international law are a vital tool of coop-
eration and offer a platform for global cooperation to protect the global commons. States
tend to obey international norms for reputational concerns,33 and comply with interna-
tional law, especially if other countries in the region do so as well (case in point is Russia
in the Arctic Council).34 This sheds light on the dearth of conflict in these areas, despite
the increasing interest of the great power in the commons, notwithstanding growing mili-
tary activity in the Arctic, but still an absence of widespread weaponization, that is, there
is no placement of offensive and defensive weapons.35 What explains the enduring col-
laboration are the principles and the norm-creating treaties, and how these constrain
behavior, and the observed tendency to comply and honor expectations.36 As a result, by
embracing treaty obligations, there is a leveling of the playing field in which every state
will be expected to behave according to what was agreed upon. Additionally, by being
part of a treaty or an institution, states increase the reputational costs of norm-breaking
behavior.37
The life-long work of Nobel laureate, Elinor Ostrom, captures the challenges of gov-
erning the Commons by arguing that effective governance stems from the participatory
decision-making of the stakeholders involved.38 She rejects the traditional assumption of
the ‘tragedy of the commons’39 that assumes the actors’ fixed preferences, which are
dictated from above, namely a governmental authority. She privileges the power and
agency of the individual and local action to bring about systemic change. Part of the
reason why there is scant conflict in these areas has to do with local activism, including
indigenous peoples (about ten million live in the Arctic), scientists, and environmental-
ists who can all perform the role of arbiters and custodians.40 At the international level,
by contrast, the absence of an all-seeing arbiter makes incentives to cooperate rare and
uncertain, especially in the face of material rewards, realists contend, and ignore interna-
tional law as a tool for adjudication and peaceful settlement of disputes. Here I will take
precisely the opposite approach and view international law as an ordering and convening
mechanism for peace.

Global commons law

I propose that this is the sole part of international law that ascribes protections to the
planet’s domains over which no state can claim jurisdiction, or exploit at will, in order to
safeguard humanity as a whole. This is distinctive because other parts of international
law serve the objectives of clarifying the scope and nature of state relationships, rights,
and duties. global commons law adds to the role and the protection of the individual in
the international system.41 In other words, the state is not the prime subject, and its rights
and duties are not the main object of protection; global commons law favors the human
dimension instead where individuals have become recognized as participants and sub-
jects.42 Except for human rights law, criminal and international humanitarian law, the
other branches of international law directly attribute protections, rights and correspond-
ing duties to safeguard the sovereignty of the state. Attributing protection to humanity
and distinct areas of the planet (and not the state) aligns with a recent alteration in the
normative foundations of the international legal order from being purely state-centric to
also being human-security aligned and humanity privileging.43 This shift is manifest in
Garcia 429

the increased legal personality of the individual under international law who has rights
and duties and can be liable to wrongdoing. This is especially the case with the develop-
ment of human rights law, international humanitarian law, and criminal law that place a
high priority on the search for justice and remedies to benefit the individual, and also the
consciousness of humankind, and not exclusively the state. This is a paradigmatic trans-
formation of international law and has been framed as a humanity-centered global legal
turn.44
How is this humanity-centered turn applicable to the global commons? These resource
domains bestow global collective goods that affect every human being, regardless of
nationality. The Table below indicates the main treaties, institutions, and principles at
play.
These international instruments are based upon ideas of common custodianship in a
community of interests, and regards developed and developing nations, as well as peo-
ples, as the guardians for future generations. The role of states as custodians instead of
merely users and beneficiaries is what is singular, along with the vesting of rights to
humanity as a whole.45 The sweeping threats to the global commons today, such as the
over-exploitation of the resources that are supposed to be shared by humankind, require
global action on how this legal apparatus can be strengthened.
I propose that four foundational principles underpin the legal scope of global com-
mons law: common heritage of humankind, common concern of humankind, intergen-
erational equity, and precautionary action. The values and meanings of each of these
principles have found expression in different international treaties, which I will discuss
one by one. First: ‘common heritage of humankind’ (CHH): its controversial intellec-
tual history indicates that for some it has the status of an essential established custom,
while for others it is a mere ideal, and some question its contribution as uncertain.46
Therefore, I suggest that the connections between these principles and their applicabil-
ity taken in conjunction should provide a more robust platform to strengthen existing
treaties and actions to protect the Commons.47 International Court of Justice Judge,
A.A.C. Trindade, propounds that CHH originated a new paradigm in international law
in which ‘humankind’ acquires a legal personality and is therefore entitled to protec-
tions resulting from international distributive justice.48 Such a new paradigm considers
the rights of those countries that are not rich nor technologically endowed. The intel-
lectual history of these principles started to emerge in the late 1960s, despite great
distrust among nations and could guide them again in the current moment of growing
geopolitical tensions.
Combined, the four principles represent a meaningful signpost to shape global gov-
ernance because they have been enshrined in the treaties and ground-breaking concep-
tual ideals that benefit all humanity on a more equitable basis.49 Even in the most
contentious area of the global commons – the high seas and deep-sea mining – peace still
prevails. These are areas where the technologically advanced countries vie for the riches
that only they can explore. Table 1 shows that the UNCLOS, now nearly universal,
despite its amendment that for many meant a dilution of the CHH because of the pressure
from the United States, has reinforced the elements of CHH by the prohibition on sover-
eign claims, equitable sharing of benefits, the peaceful purposes provision, and the
requirement to protect the marine environment. Moreover, the work of the International
430 International Relations 35(3)

Seabed Authority reinforces CHH and continues to elevate the needs and rights of devel-
oping countries, and continues to work toward the peaceful settlement of disputes.50
Kemal Baslar’s seminal book posits that CHH is one of the most remarkable develop-
ments in international law and a radical concept that is inherently about justice and tak-
ing precautions.51 It was first proposed by Argentina in 1966, then codified in the 1979
Moon Agreement, and preceded with a broader expression of ‘common province of man-
kind’ in the 1967 Outer Space Treaty.52 In its purest form, CHH is composed of the fol-
lowing precepts:

1. No one can claim jurisdiction;

2. All states are expected to support efforts toward common governance that include
developing states’ interests;
3. The resource domains are ascribed to humanity in the form of benefit sharing to
benefit all under a common authority which is tasked with the equitable distribu-
tion and to act as a forum for peaceful settlement of disputes;
4. Uses exclusively for peaceful purposes that confer human rights. These areas are
not to be weaponized (the placement of actual defensive or offensive weapons
which is different than militarization, as explained in the first paragraph of this
article) and as a result weapons cannot be placed or tested in these domains;
5. Cooperative scientific research should be conducted in a transparent manner that
does not harm the environment and the findings are to be shared to benefit all
humanity.53

Current technological advancements and the widening gap between the rich and poor
countries, and the former’s attempt to exploit the riches for themselves exclusively with
the advanced capacity to explore the seabed and outer space, without respecting a com-
monality of interests and purposes, can harm future generations.54 It is pertinent there-
fore, to examine the functions that global commons law performs in maintaining peace
in the global commons in order to develop these ideas further.

Guardians of future generations

Is the current generation – individuals and states – to act as the custodians of the
Commons for future generations? The prevention of environmental degradation is a
central component of the common custodianship for the achievement of a sustainable
future.55 Intergenerational equity is a principle that has evolved within international
environmental law from the beginning of modern environmental diplomacy. Member
states of the United Nations met in Stockholm in 1972 to discuss the evolving global
question of environmental degradation in the first ever global summit for the environ-
ment.56 This represented the birth of modern environmental diplomacy and gave rise to
the initial principles of ‘sustainable development’ and ‘intergenerational equity’. The
World Commission of Environment and Development (the Gro Brundtland Commission)
that followed the summit as an action agenda championed the principle of ‘sustainable
development’.57 The Stockholm summit produced a declaration with 26 principles58
that represent the first pronouncements in history on stewardship of the environment for
Garcia 431

future generations. This paved the way for humankind to become the custodian of the
planet and within the remit of this new custodianship lies the responsibility to shield
future generations from harm.59 Principle 1 of the Stockholm Declaration seeks to pro-
mote an environment to protect and improve the life of present and future generations.
This objective is reiterated in Principle 2, along with the aspiration of shared benefits to
all humankind. These statements are preceded by a preamble that emphatically pro-
motes the novel idea of the improvement of the human environment for present and
future generations as an imperative that is to serve as the basis for social and economic
development. The 1987 Gro Brundtland Report, Our Common Future, links sustainable
development and intergenerational equity when it defines the former: ‘Humanity has
the ability to make development sustainable to ensure that it meets the needs of the
present without compromising the ability of future generations to meet their own needs’.
Technology and social organization can be both managed and improved to make way
for a new era of economic growth’.60 This marks the origins of the interlocked legal
impact of CHH and intergenerational equity that were subsequently enshrined in several
conventions, most notably the 1982 UNCLOS and the 1987 Montreal Protocol, dis-
cussed below.
According to Dinah Shelton, intergenerational equity vis-à-vis the commons’
resources would need to acknowledge (1) that human life emerged from, and is depend-
ent upon, the Earth’s natural resource base, including its ecological processes, and is thus
inseparable from environmental conditions; (2) that human beings have a unique capac-
ity to alter the environment upon which life depends; and (3) that no generation has a
superior claim to the Earth’s resources because humans did not create them but inherited
them.61
Taken together, the international treaties and institutions that govern the commons
form a mosaic of norms and practices that may function as guardians for future genera-
tions, because these areas are essential for the survival of all humanity, not only now but
in the future.62 For each of the commons, the driving force to create new international
treaties was technological advancements that not only imperiled the commons’ exist-
ence, but also jeopardized the future prospects for life on Earth.63 Therefore, the leader-
ship of the technologically advanced countries remains essential, and they must not
abdicate their responsibility of acting as custodians. This duty is reinforced by combined
pressure from the developing world, which – even though lacking the scientific capacity
– can indeed offer the moral and equity elements that are needed for the treaties and their
guardianship function to subsist.
To complement the top-down governance model favored throughout much of history
in international law where states make treaties, the model that developed to protect the
commons since the creation of the United Nations stands out as one that is shaped by
atypical aspirations (such as achieving a true CCH) and formed to serve peculiar and
uncharacteristic purposes, such as the life-sustaining domains of the planet. The need for
updating the current legal framework protecting the global commons is imperative
because of new threats such as ocean acidification, high concentrations of greenhouse
gases, especially given the strategic importance of these areas to preserve the planet.64
Next, I examine these norms as the foundation for peaceful relations, aiming to appraise
their implications, and significance to preserve the future of the commons.
432 International Relations 35(3)

Norms as the foundation for peaceful relations

I contend that the global commons law norms have four key purposes:

Providing common ground for peace and cooperation;

Bridging the gap between the rich and poor countries;
Ensuring equitable burden-sharing; and
Preventing future harm.
Providing common ground for peace and cooperation

The launch of Sputnik, the first man-made satellite, by the Soviets in 1957, and a few
months later the introduction of a second satellite, the Explorer, into orbit by the Americans
necessitated new international law to regulate these new activities in outer space.65 The
main governance mechanism was the 1967 Treaty on Principles Governing the Activities
of States in the Exploration and Use of Outer Space (the Outer Space Treaty), which high-
lights in its preamble ‘the common interest of all mankind in the progress of the exploration
and use of outer space for peaceful purposes.66 This was a notable achievement for interna-
tional cooperation at a time of multiple Cold War crises. The Treaty is based upon the his-
toric Declaration of Legal Principles Governing the Activities of States in the Exploration
and Use of Outer Space, adopted unanimously by the General Assembly in 1963. Its impor-
tance lies in the fact that it explicitly affirms, for the first time, guiding principles of con-
duct based upon the idea of CHH, which were then reaffirmed with legally binding force
in the Outer Space Treaty.67 This treaty created the first framework for international space
law and sets out a number of global norms which I interpret as providing the basis for
peaceful relations prevalent today. The first is: the exploration of outer space (which always
includes the moon and other celestial bodies) is to be pursued on an equitable basis to ben-
efit all countries’ interests, regardless of their status as developed or developing, and ‘shall
be the province of all mankind’. This also extends to unrestrained scientific freedom that
shall serve to encourage international cooperation. The second is: no one shall claim juris-
diction, establish sovereignty, or occupy any celestial body or any part of outer space. The
third norm calls for exploration activities in outer space to be carried out to maintain peace
and security and toward the promotion of global cooperation in alignment with the United
Nations Charter. The fourth suggests that the weaponization of outer space is illegal, and its
use shall be exclusively peaceful. Therefore, states may not place weapons of mass destruc-
tion or test them there. ‘The testing of any type of weapons and the conduct of military
maneuvers on celestial bodies shall be forbidden’, Article 4 states. The fifth norm proposes
that astronauts are envoys of humanity and all states shall cooperate in this regard. The
sixth norm calls on states to bear international responsibility for activities in outer space
carried out by both governmental and non-governmental entities. The seventh norm intends
for state parties to be responsible for, and may be deemed liable for, damage resulting from
objects, or their parts, launched into outer space. And finally, the eighth norm arising from
this framework says that the underlying principles that guide conduct in outer space are
cooperation and assistance. All activities shall be carried out in consultation with and in the
interests of all states and to avoid any harm.
Garcia 433

Even if these outer space law treaties are not universally ratified yet, these norms are
crystallized and form the keystone for peaceful relations in outer space, fostering activi-
ties among the spacefaring nations,68 and have given rise to international cooperation
projects such as the International Space Station, which involves the United States,
Russia, Europe, Japan, and Canada.69 The continuation of peaceful relations and trust is
essential for the maintenance of international security. The enshrinement of ideas of
intergenerational equity, in turn, found firmer expression in the 1992 United Nations
Framework Convention on Climate Change (UNFCCC) and marks the birth of global
diplomacy to tackle climate change.70 The UNFCCC reaffirms intergenerational equity
where present and future generations shall benefit from the protection of the climate, as
nowhere is this clearer: greenhouses released into the atmosphere today will be there for
a century.71

Norms as equalizers: Bridging the gap between the rich and the poor
On 1 November 1967,72 Arvid Pardo proposed to the United Nations General Assembly
that the same intellectual basis of common heritage as already applied to outer space
should be extended to the high seas. This was the start of many years of debate that led
to the United Nations Convention on the Law of the Sea (UNCLOS) and created a global
governance structure that tests traditional notions of sovereignty. To date, this legal
framework has promoted cooperation and peace in international relations, and is consid-
ered as important as the United Nations Charter.73
When UNCLOS was finalized, global environmental diplomacy was only ten years
old. The negotiations that led to UNCLOS were marked profoundly by considerations of
sovereignty and the divisive politics of the time. Nonetheless, in a pioneering new way
of codifying law, UNCLOS designated the seabed, ocean floor, and their subsoil (the
‘Area’) as CHH.74 It is important to note how the ideals present in CHH were codified
into UNCLOS, because it is such an extraordinary development that paved the way for
global commons law.
The most significant parts of UNCLOS where CHH was codified are in the preamble
and articles 136, 137, 311(6), 155(2), 140 with explicit references to the benefit to
humanity in the common exploitation and use of the oceans.75 This codification, which
reaffirms the principle of CHH, represent a turning point in international relations for
three reasons.76 First, it represented an attempt to include the developing countries as
beneficiaries of the resources and riches that would otherwise fall under the sole purview
and benefit of developed countries. At that moment, in international relations the ranks
of the United Nations were filled with recently decolonized countries that aspired to and
yearned for recognition and equality, along with the protection of their interests. Many of
them had just emerged from, or were going through, liberation struggles. The Non-
Aligned Movement, formed by developing countries that did not want to align with the
Cold War superpowers, was definitely a commanding force in world politics and influ-
enced the negotiations.77 Second, the establishment of the International Seabed Authority
(see Table 1) as supranational authority was exceptional in that this was the first time,
since the United Nations Charter, that an international treaty has incorporated such a
system to adjudicate disputes and oversee the rules for all in a way that would advance
434 International Relations 35(3)

the interests of all and not solely those of a few technologically advanced nations. Third,
there is a reaffirmation of the principles of peaceful uses only, already contained in the
provisions of Outer Space Law.
It is notable how CHH was woven into the law of the sea, strengthening a regime that
is respected even by the non-High Contracting parties of UNCLOS, and benefited the
developing countries with a firm substantiation of intergenerational equity as well.
However, the rapid deterioration of fisheries, ocean acidification, and loss of biodiversity
call for strengthening of the aforementioned mechanisms.78

Equitable burden-sharing
The protection of the atmosphere rose to prominence in the 1992 United Nations
Conference on Environment and Development with the negotiation of the UNFCCC. In
1988, UN General Assembly Resolution 43/53 declared that ‘climate change is a com-
mon concern of mankind, since climate is an essential condition which sustains life on
earth’.79 Then, during the Earth Summit in Rio de Janeiro in 1992 both the Convention
on Biodiversity and the UNFCCC codified of common concern of humankind imprinting
global expression to the principle. The Preamble of the Biodiversity Convention reads:
‘Affirming that the conservation of biological diversity is a common concern of human-
kind’. The Preamble of the UNFCCC states the need for ‘Acknowledging that change in
the Earth’s climate and its adverse effects are a common concern of humankind’. The
notion of common concern, as applicable to the global commons, finds support from a
broader constituency of actors, because it does not directly involve considerations of
sovereignty. Rather the protection of certain domains by virtue of their importance to
sustain life on Earth is a globally common recognition, like the climate, biodiversity, and
marine conservation in the high seas.
A comprehensive framework for environmental responsibilities was developed based
on common concerns of humankind and marked a milestone in the advancement of inter-
national environmental law, recently codified in the 2015 Paris Agreement on Climate
Change (part of the UNFCCC).80 Taken together, CHH and the principle of the common
concern of humankind provide an appropriate basis for global governance and for reflect-
ing upon the future of governance of the Commons.81 This is especially because, as
Dinah Shelton explains, the notion of common concerns or a global set of values and
interests independent of the interests of states’ is vital for equitable burden-sharing.82
In sum, CHH applies to areas and resources whereas common concern relates to spe-
cific issues that go beyond national boundaries and compel collective action. The notion
of ‘common concern’, according to ICJ Judge A.A.C. Trindade, transcends strict inter-
state relations and emphasizes the aspirations of all humankind by highlighting equitable
burden-sharing in common stewardship, universal solidarity and protection for the sake
of the future, instead of simply focusing on the benefits resulting from natural resource
exploitation. Both principles aim at implementing higher common values shared by the
international community over the interests of an individual state or small group of states,
in particular the more technologically advanced ones. The principles have been con-
structed to respond to the needs and aspirations of humankind and bear witness to the
evolution of international law from being purely state-centric to an international law with
a bearing on the whole of humankind.83
Garcia 435

Trindade identifies six elements of the concept of common concern84: first, it serves
to guide the true common questions for all humankind; second, it engages everybody in
each society; third, the intergenerational dimension is definitive and comprises both cur-
rent and future generations; fourth, it emphases human protection and not inter-state
relations and interests; fifth, it takes into consideration the causes of the problems and
their prevention; and sixth, it calls for equitable sharing of responsibilities and transmis-
sion to future generations. These elements served as contributing ideas to propel a trans-
formation in international law from an order that had once been shaped by purely
state-centric considerations to presently also taking into account human-security attrib-
utes. The guiding underpinning principles of global commons law paved the way for an
increased and heightened legal personality for the individual based upon notions of
‘international distributive justice’, whereby humankind becomes entitled to protections.

Preventing future harm

Preventing harm to all by using the international law precautionary principle found con-
crete legal expression in the 1987 Montreal Protocol on Substances that Deplete the
Ozone Layer (Montreal Protocol), deemed by most to be the most successful environmen-
tal treaty to date.85 This international treaty has a universal bearing with 197 High-
Contracting Parties. The Protocol’s preamble makes the point that states are determined to
take precautionary measures to protect the ozone layer. It is worth highlighting five rea-
sons that make this an unprecedently efficacious instance of commons management.86
First, at the point when negotiations were successful and led to the Protocol, there was
no conclusive scientific evidence on the causal link between human-made emissions of
harmful substances and the deterioration of the ozone layer. States acted under the pre-
cautionary principle: they took action to establish a legal and political framework back
in 1987 and the ozone layer is predicted to heal in 2067. Second, the United States was
the champion state in coalition with a few members of the European Union who acted in
consonance. Third, the legal framework created a fund in conjunction with a flexible
mechanism that allowed states to phase out the production of the harmful gases and had
an appropriate time frame to do so. Fourth, the treaty text is future-proof, and has stood
the test of time. It incorporated new technological breakthroughs as time went by, which
also allowed for more countries to join.87 Finally, the treaty served as the model for deal-
ing with other global commons domains, because it founded a cooperative compliance
system where scientists and their input constantly add to and assist in the implementation
of the treaty and its progress, which is essential for developing countries.88
The determination to apply the principle of precaution to environmental problems
was reiterated in the 1992 UNFCCC. Article 3 of the Convention states the principles
guiding it and prescribes that states must take precautionary measures. Three compo-
nents can be identified as a result of the codification of the principle at the Montreal and
in the UNFCCC. The first is the threshold of harm that is required to invoke it, which can
vary from negligible to irreversible harm. The second component is scientific uncer-
tainty and here the knowledge-generating capacity that can be put in place by those wish-
ing to invoke the principle could stimulate more scientific investigation. The third
component is shifting the burden of proof onto the advocates against the supposedly
harmful activity.
436 International Relations 35(3)

The application of the precautionary principle has now been extended to other fields
of scientific and global cooperation such as nanotechnology, disarmament, and health, at
least in principle, but much more needs to be done to reach concrete outcomes.89 The
precautionary principle provides a valuable framework to confront the problems of the
future whose magnitude is still uncertain, and therefore it is illuminating in the present
discussion conducted here. Its two interrelated foundational pillars are the assessment
and quantification of risks and scientific inputs. In general, international relations tend to
be more reactive than preventive. The principle can also consider harm that is morally
unacceptable to present and to future generations. Finally, the need to act now stems
from the realization that postponing action could make dealing with the consequences
much costlier and in some cases even ineffective.90
According to the European Commission, recourse to the precautionary principle may
be invoked when a ‘phenomenon, product or process may have a dangerous effect, iden-
tified by a scientific and objective evaluation, if this evaluation does not allow the risk to
be determined with sufficient certainty.’ Therefore the recourse is undertaken within a
framework of risk analysis and when three conditions exist: the identification of poten-
tially adverse effects, the evaluation of the scientific data available, and the extent of
scientific uncertainty. Implementing the precautionary principle may mean that it is nec-
essary to generate more information about an activity that could cause harm, which is in
principle always welcome. The European Union’s framework application of the princi-
ple could serve as a basis for improved management of the global commons. All things
considered, it is positive that the member states of the European Union have adopted the
precautionary principle as it adds to its cogency in international law.91

Creation of a comity for peace and peacefully settling

disputes
There are two noteworthy areas of the global commons where a comity for peace was
created: the Arctic (only its High Sea is a Common) and Antarctica. The Arctic is not the
subject of a governance system that frees it from the forces of globalization, unlike
Antarctica, where commercial activity was prohibited along with claims to sovereignty.
These regions are not entirely comparable, but are both are characterized by an inhospi-
table climate and for being mostly inaccessible; and they are also facing the pressures of
climate change and hence the need for strengthened global cooperation. They are both
under the remit of UNCLOS, but also of other overlapping organizing institutions. They
benefit from issue-ordering platforms where states can organize matters of importance
and negotiate outstanding concerns, and resolve issues using different platforms and
tools (see Table 1).
The first treaty to protect Antarctica is the 1959 Antarctic Treaty, which provided the
basis for a sophisticated non-national commons regime, the Antarctica Treaty System
(ATS), which has continued to play a role in keeping peace in the region.92 These treaties’
scope is far-reaching and includes marine protection, conservation, and environmental
management. Some important aspects of the treaty: peaceful purposes only and no mili-
tarization is allowed (Article I); freedom of scientific investigation in Antarctica and
cooperation (Article II).
Garcia 437

Antarctica is the object of a densely regulated set of treaties and is internationally

governed by what is called the ‘Antarctic Treaty System’, which is composed of the 1959
Antarctic Treaty, the 1972 Convention for the Conservation of Antarctic Seals, the 1980
Convention on the Conservation of Antarctic Marine Living Resources, and the 1991
Protocol on Environmental Protection to the Antarctic Treaty. The system codifies ele-
ments of CHH, intergenerational equity, and precaution: no country can claim jurisdic-
tion over the area, its uses are only for peaceful purposes, and no militarization is
allowed.93 Combined, these treaties form a platform for global cooperation whereby sci-
entists and environmentally minded groups can advance the causes of protecting human-
ity by preserving the peaceful governance of Antarctica.94
The Antarctic achieved peaceful coexistence and is successful for three reasons. First,
the treaty codifies a principle of demilitarization. Second, jurisdictional claims are
unlawful and hence cooperative scientific research is the dominant motivation, making it
possible for all states to mutually benefit. Third, the Antarctica Treaty system places
weight on cooperation rather than conflict. The political and legal framework in the
Arctic is not as densely regulated and does not form such a robust set of governing
mechanisms as in the case of Antarctica.
The Arctic is a region of peace, despite the promise of untold riches, for three rea-
sons.95 The first is that all countries play by the rules that are a combination of legally
binding and soft norms within a central governance institution, the Arctic Council.96
Therefore, governance generation by the Arctic Council is critical to the wellbeing of its
states and peoples, and it is not only principally comprised of the eight countries border-
ing the Arctic, but most importantly, the indigenous populations have a voice in partici-
patory decision-making.
Second, member states of the Arctic Council are largely secure nations that, for the
most part, score highly according to the rankings of the Global Peace Index, while the
Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the
Arctic 2011 is a testament to confidence-building.97 That is, the nations are more peace-
makers than troublemakers, internationally, except for Russia, which tends to behave
honorably at the Arctic Council, even if it misbehaves elsewhere.98

Arctic Council Members’ Proclivity Toward Peace 202099

Member Global GPI Positive PPI Good relations with Relations’

Country Peace score Peace score neighbors 2019 Rank score
Index Index
Norway 17th 1.496 1st 1.17 15th in the world 1.06
Canada 6th 1.298 12th 1.48 38th 2.31
Denmark 5th 1.283 6th 1.27 29th 1.74
Finland 14th 1.506 3rd 1.22 14th 1.62
Iceland 1st 1.404 2nd 1.21 22nd 1.31
Russia 154th 3.049 69th 2.92 132nd 3.82
Sweden 15th 1.479 5th 1.26 21st 1.82
US 121st 2.307 31st 1.95 44th 2.69
438 International Relations 35(3)

There are thus many incentives for cooperation and member states have consequently
favored cooperation rather than conflict. Russia has less incentive to behave poorly vis-
à-vis its counterparts in the Arctic Council. Russia does not have the military power to
compete in the Arctic against NATO, nor does Russia have significant economic or polit-
ical power to match all of these countries combined. Russia also cares more about access
to potential Arctic resources that would be jeopardized by tense relations with its Arctic
neighbors and colleagues. Third, the other international law framework beyond the
peace-generating governance by the Arctic Council, the UNCLOS, provides the founda-
tional framework for peaceful settlement of disputes, for example, most conflicts were
settled using this overarching legal framework.
The two polar regions have a different reality: the Arctic is inhabited by millions of
people and forms part of international trade, while Antarctica is exclusively a region for
scientific exploration and preservation. They are, however, regions of peace and coop-
eration, as a result of international institutions and the participation of not only states but
scientific and other communities in their preservation. Disputes are settled peacefully
and these regions serve as examples of a comity for peace.

Conclusions
I explored why peace prevails in the global commons – the high seas and the seabed,
Antarctica, the atmosphere (including the ozone layer and the climate system), and outer
space (the moon and all celestial bodies). Despite rising mistrust amongst the major pow-
ers, and expanding militarization in some areas, such as the South China Sea, most dis-
putes are settled peacefully using the international institutions that stemmed from the
relevant treaties.
I suggest that the absence of conflict and persistence of cooperation is in part due to
the norms, principles and repeated diplomatic practices and meetings to implement inter-
national treaties, and the existence of overlapping global governing arrangements. This
tapestry of rules and norms forms an uncharacteristic branch of international law that I
call global commons law, which is comprised of principles and norms forged by a vast
mosaic of actors in shared stewardship and with a commonality of interests that dovetail
into treaties to restrain conflicting behavior among states. global commons law helps to
sustain the absence of conflict and promotes cooperation, and partly explains the preva-
lence of endeavors toward cooperation.
I argued that this branch of international law is unique as it does not ascribe rights and
duties to the state but to individuals and humanity. The state is not only a user and benefi-
ciary, but it is also a guardian, and therefore has duties and responsibilities to ensure the
preservation of these domains in which legal (sovereign) ownership is absent but which
are characterized by peace instead of military confrontation.
Global commons law differs from other parts of international law as it fulfills a dis-
tinct purpose, namely the protection of certain domains of the Earth for the benefit of all
humankind into the future. Rather than being developed to satisfy the interests of indi-
vidual states, global commons law’s purpose is the intergenerational guardianship of the
human heritage (the theme of this Special Issue), in the interest of all living and future
Garcia 439

generations, with heritage here referring to what belongs to all individuals unrelated to
nationality.
To expand upon the examination of the impact and significance of the global com-
mons law, I explain the three purposes it performs: guardianship of future generations;
creation of a comity for peace and peacefully settling disputes; and setting norms as the
foundation for peaceful relations. These norms fulfill four key purposes: they form a
common ground for peace and cooperation, attempt to bridge the gap between the rich
and poor countries, create a forum for equitable burden-sharing, and prevent future
harm. In doing this, I took the diametrically opposite approach to the realists because I
view international law as an ordering and convening mechanism for the preservation of
peace.
I ascertain whether the commons assumed a peaceful non-national status in interna-
tional relations, in terms of four principles: common heritage of humanity, common con-
cern, intergenerational equity, and the precautionary principle. These were woven into
the fabric of the diverse sets of international treaties to shape higher human aspirations
and serve distinctive purposes that transcend exclusively national considerations.
Humanity becomes the custodian of the Earth by overriding sovereignty considerations
to safeguard the planet and defend it against novel threats and challenges.
The global commons are an excellent repository to evaluate the new role of ‘national
and territorial sovereignty’ in contrast to ‘supranational authority governance’ in the
current shifting world order where great power rivalries are again a reality. I conclude
that these two – national sovereignty and supranational governance– are converging and
becoming complementary. Global governance is more effective where all actors, includ-
ing states, scientists, native populations, and international institutions work in partner-
ship (e.g. repairing the ozone layer, the Arctic Council, and the Antarctic Treaty System).
Sovereignty is becoming increasingly vested with duties rather than rights. The role of
states in the proper governance of the global commons is now widely acknowledged
and deemed indispensable.100 It is an illusion to think that states can act alone, though,
as many do not have the technical and financial capacity to do this. That is why net-
worked multi-pronged partnerships with international institutions and scientists are so
essential. The principle is that custodianship – forged with developing and developed
countries alike – attempts to elevate national interests to conserve areas that benefit
everyone on the planet.
Governance of the commons is shaped by higher aspirations and serves distinctive
purposes that transcend national considerations. This approach considers humanity from
the perspective of the technologically advanced and the developing countries alike.
Humanity – the partnership between governments, scientists, individuals, aboriginal
communities, and international institutions – becomes the custodian of the commons
overriding unqualified considerations of sovereignty to protect the planet and safeguard
humanity from novel threats emerging in the 21st century.

Acknowledgements
I am thankful for the research assistance of Sara Corey, Francesca Batault, and Jillian Jacobson.
440 International Relations 35(3)

Funding
The author received no financial support for the research, authorship, and/or publication of this
article.

ORCID iD
Denise Garcia https://orcid.org/0000-0003-2777-4666

Notes
   1. Nico Schrijver, ‘Managing the global commons: Common Good or Common Sink?’, Third
World Quarterly, 37(7), 2016, p. 1255.
  2. Kristi Govella, ‘Technology and Tensions in the global commons’, Fletcher Security
Review, 6(1), 2019, pp. 38–44. See Govella, this issue.
   3. Cassandra Steer, ‘Why Outer Space Matters for National and International Security’, A
Report by the Center for Ethics and the Rule of Law (University of Pennsylvania, January
2020).
  4. Michael Byers, ‘Arctic Security and Outer Space’, Scandinavian Journal of Military
Studies, 3(1), 2020, pp. 183–96. Michael Byers, ‘Crises and International Cooperation: An
Arctic Case Study’, International Relations, 31(4), 2017, 375–402.
  5. Ronald O’Rourke, Renewed Great Power Competition: Implications for Defense—Issues for
Congress (Congressional Research Service, 2020). ‘The Growing Danger of Great-Power
Conflict’, Economist, 25 January 2018. Alan Dupont, ‘New World Order: Momentum Is
Shifting in Favour of Dictators’, Australian, 10 February 2018. Gabriel Glickman, ‘Back to
the Future: The Potential of Great-Power Conflict’, National Interest, 12 February 2018.
   6. Jeremy T. Mathis, Sarah R. Cooley, Kimberly K. Yates, et al., ‘Introduction to This Special
Issue on Ocean Acidification: The Pathway from Science to Policy’, Oceanography, 28(2),
2015, pp. 10–5. Brigham Daniels and James Salzman, ‘Our global commons’, Brigham
Young University Law Review, 6, 2014, pp. 1251–6.
  7. Carolyn Gramling, ‘Arctic Heat Record’, ScienceNEws, July 2020. Alejandra Borunda,
‘What a 100-Degree Day in Siberia Really Means’, National Geographic, June 2020. Paul
Arthur Berkman and Oran R. Young, ‘Governance and Environmental Change in the Arctic
Ocean’, Science, 324(5925), 17 April 2009, pp. 339–40.
   8. William Steffen, Katherine Richardson, Johan Rockström, et al., ‘Planetary Boundaries:
Guiding Human Development on a Changing Planet’, Science, 347(6223), 13 February
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   9. Steer, ‘Why Outer Space Matters for National and International Security’.
  10. United Nations General Assembly Resolution 69/292, ‘Development of an International
Legally Binding Instrument Under UNCLOS on the Conservation and Sustainable Use of
Marine Biological Diversity of Areas Beyond National Jurisdiction’, 6 July 2015.
  11. I am grateful for a private correspondence with Neil Craik and his ongoing project on the
current legal status of the global commons.
  12. In company with Christopher C. Joyner and Elizabeth A. Martell, ‘Looking Back to See
Ahead: UNCLOS III and Lessons for global commons Law’, Ocean Development &
International Law, 27(1–2), 1996, pp. 73–95. In this article, the only mentions of global
commons law is in the title and: ‘This article examines precedents for making future inter-
national global commons law that can be derived from the experience of the UNCLOS IHI
negotiations’.
  13. Byers, ‘Arctic Security and Outer Space’.
Garcia 441

  14. Daniels and Salzman, ‘Our global commons’.

  15. Robert Axelrod and Robert O. Keohane, ‘Achieving Cooperation Under Anarchy: Strategies
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Garcia 443

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Garcia 445

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100. I thank a peer reviewer for this insight.

Author biography
Denise Garcia is an associate professor at the College of Social Sciences and Humanities at
Northeastern University. She is a member of the International Panel for the Regulation of
Autonomous Weapons since 2017, and a Member of the Research Board of the Toda Peace
Institute (Tokyo) and of the Institute for Economics and Peace (Sydney). She is the Vice-chair of
the International Committee for Robot Arms Control. Garcia was the Nobel Peace Institute Fellow
in Oslo in 2017. Garcia is a Northeastern University Outstanding Teaching Award recipient and
leads the annual course to the United Nations in Geneva. Her most recent publications appeared at
Nature.