Global Commons and the Law of the Sea an Introduction

Chapter 1 Global Commons and the Law of the Sea An Introduction

Keyuan Zou

Introduction

According to the United Nations Environment Programme (unep), “the ‘Global Commons’ refers to resource domains or areas that lie outside of the political reach of any one nation State. Thus international law identifies four global commons namely: the High Seas; the Atmosphere; Antarctica; and, Outer Space.”1 This traditional definition has been used both in academia and state practice. For example, the book on global commons written by Susan Buck uses this definition and includes Antarctica, oceans, atmosphere and outer space for her discussion.2 The term global commons has a close relation- ship with the term ‘public goods’. It is also related to the corresponding terms in international law/relations such as ‘common interest’, ‘common concern’, and ‘common heritage’. Recently, China has advocated to establish a ‘Community of Common Destiny’ at the international level,3 and it may provide some useful reference to the global commons and their governance. It is admitted that the concept of ‘global commons’ is a living concept and can accommodate, over time, other commons at the international level, such as biodiversity and generic resources. It is argued that the ecosystems, biomes and processes that regulate the stability and resilience of the Earth system (e.g. carbon cycle) are also global commons.4 In the maritime domain, it is generally

1 unep, ‘IEG of the Global Commons’, available at http://staging.unep.org/ delc/ GlobalCommons/tabid/54404/Default.aspx. 2 For details, see Susan J. Buck, The Global Commons: An Introduction, Washington dc: Island Press, 1998. 3 See ‘Li Keqiang: To Construct a Community of Common Destiny Featuring Common Ideals, Common Prosperity, and Common Responsibility’, 14 November 2017, available at http:// www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1510689.shtml. 4 See N. Nakicenovic, J. Rockstrom, O. Gaffney and C. Zimm, Global Commons in the Anthropocene: World Development on a Stable and Resilient Planet, iiasa Working Paper, October 2016.

© Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004373334_ 002 2 Zou recognized that in addition to high seas and Antarctica, the international seabed is also a visible global commons. The situation of global marine commons is not that optimistic in that fishery resources continue to deplete, marine biodiversity continue to reduce, and plastic wastes in the oceans continue to increase. Based on the above, global commons in this book refer to global marine commons including high seas, international seabed area, polar regions, and marine generic resources. Moreover, the book also discusses some related themes including, inter alia, the principle of common heritage of mankind, climate change, fisheries conservation, and marine environmental protection. In international law, there are legal regimes governing global marine commons. A most important global treaty is the 1982 United Nations Convention on the Law of the Sea (losc), which came into effect in 1994.5 It governs the high seas, international seabed and its resources, marine environmental protection, and fisheries. According to the losc, the high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by the Convention and by other rules of international law and comprises, inter alia, freedom of navigation, freedom of over- flight, freedom to lay submarine cables and pipelines, freedom to construct artificial islands and other installations permitted under international law, freedom of fishing, and freedom of scientific research.6 The high seas should be reserved for peaceful purposes, and no State may validly purport to subject any part of the high seas to its sovereignty.7 States are encouraged to cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negoti- ations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations to this end.8 As to the international seabed area (the Area), the losc defines it and its resources as the common heritage of mankind.9 No State shall claim or exer- cise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. All rights in the resources of the Area are vested in mankind as a whole, on

5 Text is available at http://www.un.org/depts/los/convention_agreements/texts/unclos/ closindx.htm. As of December 2017, there were 168 signatories to the Convention. 6 Article 87 of the losc. 7 Articles 88–89 of the losc. 8 Articles 117–119 of the losc. 9 Article 136 of the losc.