Commons in International Law and Policy
PHIL 101: Logic (4 credits, Fall 2018) teaches the analysis of arguments, propositional and predicate calculus, deductive techniques, and translation into symbolic notation. This introductory course sets the stage for logical analysis in the law context, helping me break down fallacious or unsound conclusions, identify false premises, and better advocate for well-reasoned environmental policy.
POLS 305: Constitutional Law: Civil Liberties (4 credits, Spring 2019) dives into the philosophical reasoning, case law, and impacts of the First Amendment free speech doctrine, the Fourth Amendment right to be free from unreasonable searches and seizures, and the Fifth Amendment right to be free from self-incrimination. This course gives me a basis in law, which will be crucial when I go to law school.
ENVS 460: Topics in Environmental Law and Policy (4 credits, Fall 2017) is an introduction to US environmental law and policy. Taught by environmental and natural resources law faculty from the law school (Karen Russell), the course covers major areas in environmental law as a whole, including water law, the Endangered Species Act, hazardous waste law, environmental justice, public lands law, the Clean Air Act, and the National Environmental Policy Act, among others. Understanding US environmental law is a crucial stepping stone for grasping international environmental law because since WWII, the US has played a vital role in establishing the environmental standards and property norms (for better or for worse) that are followed by the rest of the world – by virtue of forming and funding the major international institutions.
LAW 534: International Environmental Law (3 credits, Fall 2018) is taken for undergraduate credit via cross-registration with the law school. This course examines the principal laws and institutions in the field of international environmental law, beginning with a review of the fundamental underpinnings of environmental and international law, including the precautionary principle, polluter pays principle, state responsibility for environmental harm, and permanent sovereignty over natural resources. Then, it delves into issues of the global commons, such as ozone depletion, climate change, and depletion of ocean resources. It explores international treaties to protect biological diversity, including the Convention on International Trade in Endangered Species, the Convention on Biological Diversity, and the International Convention for the Regulation of Whaling. It also examines major pollution issues, such as hazardous waste trade. Throughout these discussions, we examine development issues, the polarization of issues as developed and developing country issues, and the role of nongovernmental organizations (NGOs) in the development and enforcement of international environmental law.
IA 340: International Political Economy (4 credits, Fall 2017) chronicles the relationship between politics and economics in international relations throughout history and provides theories to explain how political factors affect the content and evolution of international economic systems. It focuses on trade, social and environmental externalities, monetary, financial, and production relations, and explains the impacts of the special role that the US plays in international institutions (the World Trade Organization, International Monetary Fund, World Bank, etc.). In my final paper for the course, I explored the likelihood that China will assume a leadership role in the future clean energy regime based on increasing clean energy investments, governmental capacity to enforce clean energy standards, and necessity in the face of climate change.
IA 348: Global Order (4 Credits, Fall 2018) is an exploration of the origins and development of the modern state system in world politics and focuses on ways to think about how international relations have been or could be organized. Topics include the origins of state sovereignty and alternatives to it, ideological, and political trends in international affairs in the seventeenth through twentieth centuries, the ingenuities and weaknesses of the American-led international order of the postwar era, the rapid development of international courts and tribunals since the end of the Cold War, and the prospects for a non-Western-dominated global order emerging over the coming century. The explication of foundations and shifts in the international system is important for understanding how actors on the international stage are likely to behave regarding environmental agreements on global commons, and how IEL will develop as a field. Highlighting international courts and tribunals provides exposure to precedent-setting cases in international law with applications to global commons.
SOAN 285: Culture and Power in the Middle East (4 credits, Fall 2016) takes an anthropological approach to the Middle East and North Africa, emphasizing the relationship between global and local forms of social hierarchy and cultural power. Covering colonialism, nationalism, tribalism, ethnicity, gender, religion, migration, and political upheaval, this course makes clear how domestic conditions and ideologies influence the ways in which Middle East countries act in the international community and assert power via the Organization of Petroleum Exporting Countries (OPEC), an intergovernmental organization that controls 81.5% of the world’s proven oil reserves. This oligopoly asserts its influence over the world energy market and holds disproportionate power in the G-77, allowing member countries to hold sway in international environmental negotiations.
- Descriptive: What is the history of commons management in international environmental law (IEL)? What are the guiding principles and norms in IEL?
- Explanatory: How do the different development rates of countries impact multilateral environmental agreements (MEAs)? How do theories of global order, such as hegemonic stability theory and balance of power theory, play out in the global environment? How have the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) influenced developments in IEL concerning commons?
- Evaluative: How do production and consumption patterns complicate commons management in IEL? How do the precautionary principle and the “polluter pays” principle come into play in IEL? How do power relations shape the possibility for environmental justice?
- Instrumental: How should marine fisheries and the high seas be managed, and what are the best policies for mitigating climate change? Is state sovereignty the best organization of global citizenship if we are to manage commons efficaciously? What environmental policy changes should be made at an international level to improve developmental capability in marginalized societies? How can accountability and enforceability be increased in IEL?
The international system, in which states are the primary actors, is considered anarchic in the sense that it lacks an authoritative, enforcement-capable central government. In this system, treaties are negotiated, institutions are formed, and norms are followed by virtue of states’ assent to participate in the loosely organized world order as an avenue for satisfying their individual interests (Bull 1977). Since the end of World War II, champions of two rival paradigms have struggled to assert influence over sovereign states and international institutions, laws, and norms in this system (Chris Wold, personal communication, August 28, 2018). Trade liberalization, on one hand, lays out a framework for integrating the world economy by freeing markets from onerous regulations, such as mercantilist high tariffs and trade bans, and increasing specialization among states. Proponents of this paradigm argue that through economic globalization, all states and their constituents benefit financially and therefore socially. Sustainable development, on the other hand, aims to establish and implement goals for economic growth and stability over time, accounting for the environmental and social catastrophes that result from an unregulated global market. Proponents of this paradigm see a need for internalizing environmental externalities in the global economy through economic policy, like cap and trade programs, and multilateral environmental agreements (MEAs), such as the Montreal Protocol and the Paris Accord. International environmental law (IEL) hangs in the balance between these competing paradigms, and concerns itself with establishing global standards for common environmental issues (Wold 1996). In essence, environmental law practitioners seek to defend a complex claim: everyone, now and in the future, has the right to live in a healthy environment (Walker 2012). Complex considerations go into negotiating standards to protect this right, including developmental and trade inequalities between the Global North and Global South, the commodification of the ecosystem and its services, states’ domestic governmental and economic ability to enforce standards, states’ ideologies and foreign policies, and geopolitics and national security (Barbier 2015, Vertovec and Posey 2003).
A “common,” as coined by the British economist William Forster Lloyd in 1833 and popularized by American ecologist and philosopher Garrett Hardin in his 1968 article, “The Tragedy of the Commons,” refers to a situation in which a resource or area is not privately or institutionally owned, and its health and continued existence depends on the collective action of a number of individuals. In a world organized by lines demarcating individual private property, domestic governmental (public) property, and state sovereignty (supreme authority over one’s territory), global commons are the wild west of international society–where guidelines for conduct are sometimes announced, seldom followed, and never enforced. Thus, all matters regarding commons in international law and policy are influenced by relative power between actors, conceptions of sovereignty, and the prisoner’s dilemma. In line with realist conceptions of the anarchic international system, Hardin (1968) advocates for a policy of “mutual coercion, mutually agreed upon” in order to avoid disaster in open access commons. Elinor Ostrom (1990; et al. 1999) takes a constructivist approach to managing commons. She argues that common pool problems within a country may feasibly be solved by voluntary organizations rather than a coercive state, and global commons must be cooperatively operated by the relevant international, regional, and national institutions. The global commons are the atmosphere, oceans, and migratory species. Below, I address the impacts of both US climate change policy and the OPEC cartel on the atmospheric common, and the International Court of Justice case against Japan for violating the International Convention for the Regulation of Whaling, a treaty concerning the commons of migratory animals in oceans.
1. US Climate Change Policy
Since scientists first started to sound the alarm on climate change in the 1970s, the US has failed to initiate domestic or international policy to reduce the overall warming of the planet. Due to their status as the world’s largest emitter and the nature of the atmosphere as a global common, this disregard has stymied global efforts. US dissidence at the 1992 Rio Earth Summit was the first major signal to the international community that the US would not be a leader in climate change mitigation efforts. “The American way of life is not up for negotiation,” Bush Sr. said in response to international pressure to develop forward-thinking energy standards (The Economist 2003; Jacques et al. 2008). Beginning with the proliferation of neoliberalism in the 1980s and the export of that economic ideology abroad through the Washington Consensus in the 1990s, elites dealing in coal, oil, and natural gas have mobilized a counter-movement to environmentalism. This has proven to be an effective tactic in dividing Democrats and Republicans on climate change and producing suffocating gridlock in Congress (Jacques et al. 2008; McCright et al. 2014). At the 1997 UNFCCC meeting in Kyoto, Al Gore made a strong and promising speech, committing to a 30 percent emissions reduction target. Despite signing the Protocol, the Clinton administration never ratified it. The Bush Jr. administration actively pressured climate scientists to water down their findings, or else created other barriers to publishing their work in the early 2000s (Zabarenko 2007). Now, by failing to ratify the Paris Agreement and continuing to push regressive policies in the face of climate change, the US has demonstrated that it discounts the health of future generations in favor of squeezing the last bit of profit out of the fossil fuel energy regime. This dereliction of moral duty by the largest global emitter may be inducing member states to shirk their own commitments as a function of the prisoner’s dilemma (Victor et al. 2017). That said, studies have shown that even if signatories met their emissions reduction standards under the Paris Agreement, they would either negligibly reduce the global temperature (Dwortzan 2016) or increase it to three degrees celsius above pre-industrial levels (Rogerlj et al. 2016). These issues of scientific uncertainty and powerful actors refusing to take accountability make the management of the atmospheric common the most intractable issue IEL faces today.
The Organization of the Petroleum Exporting Countries (OPEC) is an intergovernmental cartel founded in 1960 with the purpose to “coordinate and unify the petroleum policies of its member countries and ensure the stabilization of oil markets, in order to secure an efficient, economic and regular supply of petroleum to consumers, a steady income to producers, and a fair return on capital for those investing in the petroleum industry” (OPEC 1961). It currently has fifteen members, with two-thirds of its oil reserves concentrated in the six Persian Gulf countries: Saudi Arabia, United Arab Emirates, Iran, Iraq, Qatar, and Kuwait. The formation of OPEC marked an early victory for developing nations in asserting rights over their natural resources (Marcel 2006). Prior to its establishment, Middle East countries were targeted by a host of multinational corporations (MNCs) based in the US and the UK, known as the Seven Sisters. They negotiated agreements with host countries to give them exclusive oil exploration and production rights in exchange for royalties and taxes. In effect, the US and UK laid claim to a majority of the world’s oil despite its location in distant sovereign states, contributing substantially to Western dominance in international politics (Sampson 1976). While oil itself cannot be considered a global common (as it is privately or governmentally owned, depending on the country it is found in), the consumption of oil produces greenhouse gases which pollute the atmosphere, causing climate change. This fact begs the question of responsibility: are producers or consumers to blame for this tragedy of the commons? While consumer demand is necessary for producers to supply, is the onus on producers to substitute safer products where possible? OPEC Secretary General Abdalla Salem El Badri forecasts that, “fossil fuels will need to supply more than three quarters of the energy mix by 2040,” predicting an increase in global economic activity, population, and vehicle ownership (OPEC, n.d.). Of course, environmentalists have an opposing prediction which seeks to make OPEC obsolete in the future clean energy paradigm. Principle 21 of the UN Conference on the Human Environment (UNCHE 1972) states that countries have “the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” Indirectly but intentionally, through its power within the Group of 77 (G-77) – a coalition of developing countries that increases its collective negotiating capacity in the UN through collaboration – OPEC members impede the ability of other developing countries to transition to clean energy (Barnett 2008). Is this imposition a violation of the UNCHE?
3. Whaling in the Antarctic: Australia v. Japan, New Zealand Intervening
Early international treaties concerning the seas focused on dividing rights for exploiting fishery resources and used consumption-based models, such as maximum sustainable yield, to determine how much fishing should occur in an area (Bodansky et al. 2007). The UN Law of the Seas Convention (UNCLOS), adopted in 1982, set out a framework for ocean usage and extended state sovereignty beyond continental borders. Most notably, it set territorial sea boundaries twelve miles offshore, exclusive economic zones (EEZs) two hundred miles offshore, and established the International Seabed Authority (United Nations 2016). Prior to UNCLOS, the body of law regarding the seas was developing to protect specific animals. Established in 1946, the International Convention for the Regulation of Whaling (ICRW) was one of the first pieces of international environmental legislation. Its purpose is to conserve whales and it currently has 89 member countries (International Whaling Commission n.d.). The International Whaling Commission (IWC) issued a moratorium on commercial whaling in 1986, which continues to the present day. In 2010, Australia, with New Zealand intervening, accused Japan of commercially whaling in Antarctic waters adjacent to Australian-controlled waters, under the guise of a scientific research program known as JARPA II, which kills hundreds of whales each year (Fitzmaurice 2015). Whaling for the purpose of scientific research is legal under Article VIII of the ICRW, but Australia noted that the IWC had adopted non-binding resolutions stating that whaling for this purpose should be non-lethal. Relying heavily on expert evidence from scientists to examine JARPA II (by the use and scale of lethal research, methods used to select sample sizes, comparisons of target sample sizes and actual take, program timeframe, scientific output, and degree of program coordination), the International Court of Justice (ICJ) ruled that Japan was in violation of the IWC (Fitzmaurice 2015). Due to the unenforceable nature of international law, Japan was able to respond to this ruling by withdrawing from all clauses in international treaties concerning natural resources and continuing its whaling operations in the Antarctic.
The situated contexts above exemplify key hurdles in global commons management: scientific uncertainty, the prisoner’s dilemma, power differentials between actors, locating impacts in time and space, sovereignty over resources, and the anarchic international system. Analyzing and developing international law of the commons requires creative theoretical frameworks and tactics for overcoming these issues.
Barbier, Edward. 2015. Nature and Wealth: Overcoming Environmental Scarcity and Inequality. Houndmills, Basingstoke Hampshire ; New York, NY: Palgrave Macmillan.
Barnett, Jon. 2008. “The Worst of Friends: OPEC and G-77 in the Climate Regime.” Global Environmental Politics 8 (4): 1–8. https://doi.org/10.1162/glep.2008.8.4.1.
Bodansky, Daniel, Jutta Brunnée, and Ellen Hey. 2007. The Oxford Handbook of International Environmental Law. Oxford Handbooks. Oxford ; New York: Oxford University Press.
Bull, Hedley. 1977. The Anarchical Society: A Study of Order in World Politics. New York: Columbia University Press.
“Declaration of the United Nations Conference on the Human Environment (UNCHE),” Report of the United Nations Conference on the Human Environment, Stockholm, June 1972.
Dwortzan, Mark. 2016. “How much of a difference will the Paris Agreement make?” MIT News.
Fitzmaurice, M. 2015. Whaling and International Law. Cambridge, United Kingdom: Cambridge University Press.
Hardin, Garrett. 1968. “The Tragedy of the Commons.” Science 162 (3859): 1243–1248. https://doi.org/10.1126/science.162.3859.1243.
International Whaling Commission. N.d. “History and Purpose.” Accessed September 27, 2018. https://iwc.int/history-and-purpose.
Jacques, Peter J., Riley E. Dunlap, and Mark Freeman. 2008. “The Organisation of Denial: Conservative Think Tanks and Environmental Scepticism.” Environmental Politics 17 (3):349–85. https://doi.org/10.1080/09644010802055576.
Lloyd, W. F. 1833. Two Lectures on the Checks to Population: Delivered before the University of Oxford, in Michaelmas Term 1832. Oxford : London: J.H. Parker ; J.G. and F. Rivington. https://catalog.hathitrust.org/Record/012503889.
Marcel, Valérie. 2006. Oil Titans: National Oil Companies in the Middle East. Brookings Institution Press.
McCright, M. Aaron, Chenyang Xiao, and Riley Dunlap. 2014. “Political Polarization on Support for Government Spending on Environmental Protection in the USA, 1974-2012.” Social Science Research 48 (November). https://doi.org/10.1016/j.ssresearch.2014.06.008.
“OPEC: Our Mission.” 1961. Accessed September 28, 2018. https://www.opec.org/opec_web/en/about_us/23.htm.
“OPEC: Fossil Fuels and the Future.” n.d. Accessed September 28, 2018. https://www.opec.org/opec_web/en/press_room/3467.htm.
Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. Political Economy of Institutions and Decisions. Cambridge ; New York: Cambridge University Press.
Ostrom, E., Burger, J., Field, C. B., Norgaard, R. B., Policansky, D. (1999) Revisiting the commons: local lessons, global challenges. Science, 284(5412), 278-282.
Rogelj, Joeri; et al. (2016). “Paris Agreement climate proposals need a boost to keep warming well below 2C”. Nature. 534 (7609): 631–39.
Sampson, Anthony. 1976. The Seven Sisters: The Great Oil Companies and the World They Shaped. Toronto ; New York: Bantam Books.
Seto, K., Davis, S., Mitchell, R., Stokes, E., Unruh, G., & Rge-Vorsatz, D. 2016. Carbon Lock-In: Types, Causes, and Policy Implications. Annual Review of Environment and Resources, 41, 425-452.
The Economist. 2003. “A Greener Bush,” February 13, 2003. http://www.economist.com/node/1576767.
United Nations. 2016. “Oceans and the Law of the Sea.” February 11, 2016. http://www.un.org/en/sections/issues-depth/oceans-and-law-sea/.
Vertovec, Steven, and Darrell Addison Posey. 2003. Globalization, Globalism, Environment, and Environmentalism: Consciousness of Connections. Linacre Lecture ; 2000. Oxford; New York: Oxford University Press.
Victor, David G., Keigo Akimoto, Yoichi Kaya, Mitsutsune Yamaguchi, Danny Cullenward and Cameron Hepburn. 2017. “Prove Paris was more than paper promises”. Nature Magazine.
Whaling in the Antarctic (Australia v. Japan, New Zealand Intervening), Judgment, 31 March 2014. https://www.icj-cij.org/en/case/148
Walker, Gordon P. 2012. Environmental Justice. London ; New York: Routledge.
Wold, Chris. 1996. “Multilateral Environmental Agreements and the GATT: Conflict and Resolution,” Environmental Law 26, no. 3: 841-922.
Zabarenko, Deborah. 2007. “Scientists Charge White House Pressure on Warming” Reuters. Archived April 13, 2017. https://web.archive.org/web/20170413044902/http://www.washingtonpost.com/wp-dyn/content/article/2007/01/30/AR2007013000985.html.