Global commons law: norms to safeguard the planet and humanity’s heritage
| DOI | 10.1177/00471178211036027 |
| Author | Denise Garcia |
| Published date | 01 September 2021 |
| Date | 01 September 2021 |
| Subject Matter | Articles |
https://doi.org/10.1177/00471178211036027
International Relations
2021, Vol. 35(3) 422 –445
© The Author(s) 2021
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DOI: 10.1177/00471178211036027
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Global commons law:
norms to safeguard
the planet and humanity’s
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
1036027IRE0010.1177/00471178211036027International RelationsGarcia
research-article2021
Article
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
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