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Transboundary Environmental Negotiation is an important collection of articles generated by faculty and graduate students at MIT, the Fletcher School of Law and Diplomacy at Tufts University, and the Program on Negotiation at Harvard Law School. The contributors emphasize the ways in which global environmental treaty-making can be improved. They highlight new environmental problems that pose difficult global negotiation challenges and suggest new strategies for involving a range of nongovernmental actors in ways that can overcome the obstacles to transboundary environmentalism.
In 1967 Arvid Pardo, Malta's United Nations Ambassador, made his visionary proposal that the seabed and ocean floor be declared a common heritage of mankind. Since that time, the term Common Heritage of Mankind (CHM) has become increasingly popular within the environmental lexicon. It has been described as "the broadest and most sustained attempt ever to reform and codify a set of global environmental norms" (Vogler, 1996, p. 16, referring to UNCLOS III). Another author has suggested that "the common-heritage-of-mankind principle, [is] now widely recognized as an appropriate regulatory mechanism for the protection of global 'life-support systems' such as the ozone layer and the climate system" (Imber, 1996, p. 139). Yet despite this there has been a lack of clear agreement about how CHM should be defined.
Perhaps the broadest way of thinking about CHM is that it is "the natural resources and vital life-support services that belong to all mankind rather than to any one country" (Porter and Brown, 1996, p. 13). That such resources could in some way be considered jointly owned by all humanity is not a brand new idea. The English philosopher John Stuart Mill suggested that "the Earth itself, its forests and water above and below the surface. These are the inheritance of the human race" (quoted inCairncross, 1992, p. 6).
However, although this issue was raised by Mill almost 150 years ago, the specific legal rights associated with this inheritance have not as yet been clearly defined. This definitional lag has been explained by Siebert (1995, p. 103):
The definition of property rights has been a historical process. If we look at human development since Adam and Eve left paradise, the increasing scarcity of resources required the definition of property rights. When land was in ample supply, property titles for land were not necessary. When people competed for the scarce good land, property titles became relevant. Similarly, water once was a free good, but today property titles for water are well accepted.
That property rights associated with CHM might evolve was recognized by Mill, who suggested that "air, for example, though the most absolute of necessaries, bears no price in the market because it can be obtained gratuitously ... It is possible to imagine circumstances in which air would be a part of wealth. If from any revolution in nature the atmosphere became too scanty for the consumption, air might acquire a very high marketable value" (quoted in Hite and others, 1972, p. 15).
Why Is It Necessary to Define CHM?
There is growing evidence that CHM is an evolving concept. Concepts which are based on normative principles, or soft laws, are often the foundation for specific multilateral agreements and/or laws because international law is "developed ... by reference to general principles" (Birnie quoted in Susskind, 1994, p. 30). They can also "be hardened by later international practice. [And]soft-law instruments have also served as forerunners of subsequent treaty law ... or as a mandate for new mechanisms of intergovernmental cooperation" (Sand, 1991, p. 253). Even more specifically, "Soft law may be turned into binding international law in two ways: Principles included in soft-law agreement may become so widely regarded as the appropriate norms for a problem that they are ultimately absorbed into treaty law; or political pressures may arise from those dissatisfied with spotty adherence to soft-law norms to turn a nonbinding agreement into a binding one" (Porter and Brown, 1996, p. 45).
Normative principles provide an underlying foundation that can be agreed to and to which the parties can refer to resolve (otherwise) contentious issues. They are particularly helpful in the development of environmental agreements because environmental treaties often involve disagreeable sacrifices that no party wishes to make, and simply compromising on the degree of the sacrifice each party makes is often not an effective protective mechanism for the environment. But, with a normative principle to serve as the basis to resolve disagreements in the formation of the agreement, compromises are likely to be more compatible with the general environmental goals of the agreement.
For CHM to effectively move from a concept based on soft law to actual hard law requires that it be clearly defined. Hard laws need to be enforceable, which means they must be specific enough to be understood. It has, for example, been pointed out by Susskind (1992) that the Basel Convention on the Transboundary Shipment of Hazardous Waste avoids the politically difficult task of defining key terms. While this lack of specificity made it possible for reluctant countries to sign, it also undermines the chances of successful implementation. For instance, the agreement calls for the disposal of hazardous waste in an "environmentally sound manner." It does not, however, say what this means (Susskind, 1992a, p. 67). Additionally, before a concept such as CHM could explicitly become the basis for multilateral agreements, those states potentially adversely impacted by the agreement may require that it be clearly defined.
Multilateral agreements to protect the environment (and hence normative principles on which such agreements can be based) are needed because "global environmental systems cannot either be annexed by states or be left res nullis (without the protection of the law), for they would then be liable to destruction by unregulated exploitation-Hardin's 'tragedy of the commons'" (Imber, 1996, p. 139). The globalization of the tragedy of the commons is a function of "national efforts to maintain not only control over all decisions within their geopolitical borders but autonomy over actions that affect common areas and resources as well" (Susskind, 1994, p. 21). Without clear and objective international standards, the environment will continue to be abused because individuals and nations are also less likely to acknowledge the harm of their own actions. This means that the need for "locating those political values that can ascribe meaning to global political life, and can provide grounds for selecting practical solutions to insoluble philosophical problems" (Dryer, 1996, p. 36) is particularly acute.
Different Definitions of CHM
A review of the relevant literature reveals three distinct definitions of CHM, each based on a different normative principle. Which principle one uses to define CHM may be a function of the perception one has of the overriding need(s) which could be met if CHM becomes an accepted concept in global environmental regimes. But how one defines CHM will create quite different results when trying to quantitatively outline relative obligations under a potential agreement.
The first normative principle used to define CHM builds on the notion that there should be a fair and egalitarian distribution of common resources (FAIR). In other words, all people should benefit from resources that are not exclusively owned by any single nation. In accordance with FAIR, "developing-country officials as well as NGOs began to demand in the early 1990s that industrialized countries reduce their share of what they call 'environmental space'-the use of the earth's limited natural resources and environmental services-and permit developing countries to use more of that environmental space in order to raise their living standards" (Porter and Brown, 1991, p. 112).
However, developing countries are not necessarily proponents of FAIR. It was fear of FAIR that led Malaysia and India to object to the application of principles of global responsibility for forest management because they saw this as an attempt "to establish the legal principle that forests are 'global commons' or part of the 'common heritage of mankind,' thus giving industrialized countries some right to interfere in the management of the tropical forest countries' resources" (Porter and Brown, 1991, p. 126). FAIR may also be seen as a primary motivating factor in the Second World Climate Conference's declaration that "in order to stabilize atmospheric conditions of greenhouse gases while allowing for growth in emissions from developing countries, industrialized countries must implement reductions even greater than those required, on average, for the globe as a whole" (Paterson, 1991, p. 66).
The second normative principle on which the definition of CHM could be based is the idea of stewardship or intergenerational sustainability (SUSTAIN). SUSTAIN is an explicit component of Edith Brown Weiss's "Declaration of Planetary Rights and Obligations to Future Generations" which lays out principles of intergenerational equity. SUSTAIN also underlies the "Bill of Rights for Future Generations" which Jacques Cousteau proposed and which has been signed by millions of people. It stands for the idea that future generations have a right to an uncontaminated and undamaged Earth and that present generations are responsible for protecting that right. The proposed "Declaration of the Right to Nature Conservation, Environmental Protection and Sustainable Development," which was produced by the Bruntland Commission, relies on SUSTAIN in its call for nations to "conserve and use the environment and natural resources for the benefit of present and future generations ... prevent or abate any transboundary environmental interference which could cause or causes significant harm ... provide compensation for the harm caused" (Susskind, 1994, pp. 176-179). Together these documents lay out "principles of intergenerational equity" (Susskind, 1994, p. 108) with the underlying view being that each future generation is entitled to receive an undamaged earth and that therefore each present generation has an obligation to prevent harm to it.
The third normative principle that can define CHM hinges on the idea that harm to the planet should be avoided or reduced by the most economical, efficient, and functional (ECON) means possible. This is the view that locates the problem of sustainability within the context of a global economy of mutually interdependent actors. They regard nature as a commodity that can be subject to property rights, and believe that market mechanisms create the most efficient use of resources. Sustainable development policies can be pursued through the creation of economic incentives to retard, stop, or reverse the process of environmental degradation (Williams, 1996, p. 53).
A rationale behind ECON is that "clear rights of ownership for natural resources may sometimes improve the way they are managed. If ownership of environmental assets is clearly established, then polluters and the polluted will be able to bargain over a reasonable price for allowing pollution to take place" (Cairncross, 1992, p. 10). The application of economics to environmentalism "seems odd to many environmentalists. The very idea that values can be attached to natural beauty is an affront to those who think that it is beyond price" (Cairncross, 1992, p. 7). How much odder then to go a step further and consider economic analysis as an actual normative principle. However, one of the fundamental principles underlying neoclassical economics is that it provides the mechanism for the maximization of happiness (for contemporary humans at least). While one may not feel that the maximization of happiness (or utility) is the best of all normative principles, it is hard to deny that it is reasonable to consider it as a potential normative principle. A cost-benefit analysis is the primary method used to determine how ECON best maximizes utility.
To summarize, FAIR, SUSTAIN, and ECON appear to represent three possible, and very different, ways in which CHM can be defined. While one might argue that CHM should encompass all three definitions, analyzing each separately produces very different results, which suggests the difficulty in amalgamating them. To illustrate how this is so it is useful to examine the application of each definition to a specific environmental issue; in this chapter, the introduction of greenhouse gases (GHG) into the atmosphere.
Bunch of Hot (and Dirty) Air
The fact that there is some relationship between GHG and climate change is relatively straightforward and agreed upon. During the day the sun transfers to the earth heat energy that is radiated back into space as infrared energy. Some of this infrared energy radiation is absorbed by GHG in the atmosphere. Naturally (that is, non-technologically) produced C[O.sub.2] and water vapor were the two primary GHG prior to the beginning of the industrial revolution.
Since 1800 the increases in GHG have included the doubling of methane, the introduction of synthetic CFCs (which are also infamous as ozone depletors), and an increase in atmospheric C[O.sub.2] of over 25 percent (Baarschers, 1996, p. 127). Although much of this discussion focuses on emissions, it is the total quantity of GHG in the atmosphere that creates the greenhouse effect. Of the different GHG, C[O.sub.2] is the most important one because it has by far the largest effect on climate change given its quantity, infrared absorption capacity, and life span. Since 1960 alone global concentration of C[O.sub.2] has increased from 316 parts per million (ppm) to 350 ppm. Approximately 80 percent of the C[O.sub.2] increase is from the use of fossil fuels (particularly car exhaust and electric power production) with the remaining increase coming primarily from the burning of tropical rain forests and the production of cement (Rathjens, 1991, p. 157).
Although there is consensus within the scientific community that global warming is occurring and that it is linked to increased atmospheric concentrations of GHG, "it is very difficult to calculate the potential enhancement of the greenhouse effect by atmospheric pollution ... the magnitude of the effect is still unknown" (Baarschars, 1996, p. 127). However, it is speculated that "this warming could shift storm track patterns and significantly diminish soil moisture levels in major grain-producing areas, such as China, the United States, and the (former) Soviet Union. Thermal expansion of the oceans and some melting of sea ice could raise the average sea level, flooding most of low-lying Bangladesh. Worse, nonlinear or unexpected changes in the climate system might occur" (Chandler, 1990, p. 1). Moreover, "whole ecological systems could be destroyed or transformed, especially with the destruction of wetlands, estuaries, and barrier islands. The possibility of dramatic changes in ocean currents ... could have catastrophic effects on fisheries and local climates" (Rathjens, 1991, p. 167).
It is helpful to think of air pollution as a resource use, since air is a resource which pollution adversely affects. Such a perspective "interprets nature and the environment as a scarce resource ...
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About the Contributors.
PART ONE: RESHAPING ATTITUDES: THE NEED TO RETHINK THE BASIS FORGLOBAL ENVIRONMENTAL ACTION.
1. Defining the "Common Heritage of Mankind" (Ari Nathan).
2. All Commons Are Local: The Antarctic Treaty System as a RegionalModel for Effective Environmental Management (GianfrancoCorti).
3. International Environmental Negotiation: A Strategy for theSouth (Adil Najam).
PART TWO: A SHIFTING CAST OF CHARACTERS: BEYOND THE STATE ASUNITARY ACTOR.
4. Voluntary Codes of Management: New Opportunities for IncreasedCorporate Accountability (Anne M. Weiss).
5. Science and Scientists in International EnvironmentalNegotiations (Laurent Renevier and Mark Henderson).
6. Science and Economics in Climate Change and Other InternationalEnvironmental Negotiations (Peter Zapfel).
7. Promoting North-South NGO Collaboration in EnvironmentalNegotiations: The Role of U.S. Foundations (Wendy GayVanasselt).
8. The Role of the Media in Environmental Issues: NewspaperCoverage in Four Countries (Anja Kollmuss).
PART THREE: New Tools and Arrangements: Adding Elements to theTreaty-Making System.
9. Integrating Information Technology into Environmental TreatyMaking (Tobin L. Freid and Imke Wesseloh).
10. Enforcing International Environmental Treaties in DomesticLegal Systems (David W. Bowker and Michael Castellano).
11. Capacity-Building Strategies in Support of MultilateralEnvironmental Agreements (Heike Mainhardt).
PART FOUR: POSSIBLE NEW TREATIES: UTILIZING THE ELEMENTS OF A NEWSYSTEM.
12. Global Treaty on Renewable Energy (Fredric A. Beck).
13. A Proposal for an Environmental Right-to-Know Convention:Negotiating the Barriers (John Harrison).
14. The Global Nitrogen Initiative: An Opportunity for SustainableDevelopment and Global Change (James F. Perkaus).
15. A Proposed International Framework Convention on BioinvasiveSpecies (Wendy M. Jastremski).
16. Harder than Physics: Negotiating an International Regime toLimit Transboundary Consequences of Nuclear Waste Disposal (MarcusDubois King).
PART FIVE: GAUGING THE SUCCESS OF A MORE INTEGRATIVE SYSTEM.
17. Linking Human Rights and Environmental Quality (Kristi N.Rea).
18. The Potential for Environmental Contributions to Peace (MariaFariello Laux).