International Environmental Law Part 3 pdf

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Enclosure of Global Commons 91

in international conventions, such as that of joint implementation, come close to

restricted privatization. Joint implementation is allowed in international agreements

for regional legal entities such as the European Community. Countries in a region

are viewed as an entity and it is the overall level of pollution in the region that counts

for the purposes of meeting the regulatory requirements set by an international treaty

rather than pollution generated by each individual country. This means, implicitly,

that countries need to determine among themselves air pollution entitlements. Such

determinations are usually based on the level of industrialization, needs, and availabil￾ity of state-of-the-art technology. Thus, states with more advanced technology may

be willing to concede pollution rights to countries with less advanced technologies

in that region. Countries that experience a prolonged recession may decide to sell

some of their emission credits to countries that are unable to proceed with drastic

emission cutting. The transboundary air regime in Europe, the ozone regime, and

the climate change regime provide for different versions of joint implementation

that boil down to the same idea of establishing pollution entitlements that would be

traded eventually.128 The climate change regime has adopted the Clean Develop￾ment Mechanism, which involves joint implementation projects between countries

of the North and countries of the South.

The collaborative nature of joint implementation should not be blinding with

regard to the underlying assumption on which it is based: that the air is a common

pool resource and without regulation and some sort of privatization, in terms of

assignment of restricted pollution rights, it would be degraded.

International instruments have addressed the distributional effects of controlling

air pollution. Developing countries have viewed the distributional effects of air pol￾lution control as inequitable. Developing countries have yet to achieve the level of

industrialization of developed countries. As they have not significantly contributed

to air pollution, they view it as unfair to shoulder emission reduction costs because

so much more needs to be accomplished in terms of their industrialization. Com￾pensation has been demanded for the forfeiture of “dirty but cheap” industrialization

that was the norm for the industrialization of the North. Major air pollution con￾trol treaties provide for such compensation to developing countries as a form of

side-payment for their participation in the enclosure of the commons. As some

developing countries are to become the major emitters of air polluting substances

in the future, the success of air pollution regime depends on their willingness to

participate in the enclosure of global air resources.

5.6. Seas

The seas are a classic example of common pool resources transformed into open￾access resources. States that share the sea suffer from the collective action problems

of managers of common pool resources. Regulation of pollution by one state could

quickly be overridden if other states continue to pollute. The free-rider mentality

would eventually lead to a tragedy of commons.

States have enclosed the seas by extending their jurisdictional reach through the

establishment of EEZs. Other efforts to control pollution are regulatory in terms of

128 See Chapter 8.

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92 Foundations of International Environmental Law

limiting pollution from ships, dumping, and land-based sources. These regulatory

efforts have not been that successful, however. Some states are more eager to curb

pollution than others, and this creates a serious problem with defections. States in

general have been more successful in regulating pollution by dumping and pollution

by ships than pollution from land-based sources. Pollution by dumping is more easily

controllable because what is not dumped in the seas potentially could be dumped in

the land.129

Controlling pollution from ships is trickier. Ships are numerous and it is difficult

to observe their behavior when they are traveling in the high seas. Because of the

inability to monitor a large number of these diffuse sources of pollution, regula￾tory/technological requirements are established that all ships have to adopt. The

rationale is as follows: if ships are built in a way that their mere construction would

reduce polluting events, pollution should be reduced. Insurers and the resellers’ mar￾ket are transformed, thus, into the monitoring device for meeting these ship con￾struction requirements. If ships do not meet the requirements set by the MARPOL

Convention they cannot not obtain insurance and they are unlikely to be resold at

a fair market price. Regulatory requirements are, therefore, followed by and large

and this has led to the reduction of marine pollution.

The regulation of the seas in terms of marine pollution from land-based sources

has not been that successful. This is because the sources of pollution are many and

diffuse. Every little factory that dumps polluting substances in a river that ends up in

the seas and any agricultural field in which fertilizers are used are possible culprits of

such pollution. The problem is that generators of pollution cannot be easily located

and standards would differ for the various industries the pollution of which ends up

in the seas.

Countries have tried to address sea pollution by controlling the number and nature

of substances that different industries discharge directly into the sea or to freshwater

sources that end up in seas. The distributive impacts of limiting marine pollution,

because of lapses in effectiveness, have yet to be explored satisfactorily in terms of

side payments to developing countries that may not have the capacity to control

polluting discharges.

5.7. Waste Management

Waste management is an allocation issue in terms of sharing the burden of an exter￾nality. As mentioned earlier, waste, the way it is dealt with today, could hardly be

characterized as a resource. Most countries view wastes as the by-product of an

industrial activity. The initial impetus, therefore, is to find ways to get rid of waste

as cheaply and as quickly as possible. Waste transfers from developed to developing

countries acquired attention in the late 1980s. Companies in developed countries

started to transfer their hazardous wastes to developing countries because it was

much cheaper and less politically controversial to dispose of their waste there. A

number of instruments were adopted, therefore, based on the rationale that each

country should, in principle, be responsible for its own waste. The principles of self￾sufficiency and proximity are the principles on which international waste transfers

129 See Chapter 4, Section 3.2.

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Enclosure of Global Commons 93

are based (that is, each country must be self-sufficient in waste management and

wastes must, in principle, be disposed of as close as possible to the point of gener￾ation). The emergence and persistence of black markets in waste trade, therefore,

should not come as a surprise.130

The “you generate it you own it” mentality that characterizes most international

instruments (and national ones) regarding waste generation could be defined as a

forced enclosure. Companies are required to own their wastes and the externalities

caused by them and to take measures to deal with them responsibly. Countries are

requested to take control over wastes generated within their borders and to prevent,

as much as possible, waste transfers to other countries. Waste is, after all, a (negative)

resource that if not dealt with responsibly would cause many externalities, such

as contaminated land and groundwater supplies, sea and river pollution, and air

pollution. Waste, if not treated adequately, could affect all resources – air, water,

and land. If land disposal facilities are not safeguarded properly, they are bound to

become a source of contamination, especially in communities that are not familiar

with the hazards that these facilities present. Therefore, safeguards must be applied

so that these facilities are controlled and those who own them must be responsible

for the proper treatment and disposal of the wastes they contain.

Forcing generators, transporters, and disposers to own their waste and be liable

for the externalities it causes is the first attempt at sound waste management. The

forced enclosure of this perceived negative resource (waste), in terms of expect￾ing each country or locality to develop self-sufficiency in waste disposal and treat￾ment, however, may not be as effective as intended. Generators must own the waste

they produce and be responsible for the externalities it causes. Forcing countries to

become self-sufficient in waste management could generate undesirable outcomes.

Self-sufficiency could produce particularly undesirable results in developing coun￾tries that may wish to develop a recycling industry or do not generate sufficient wastes

to justify the development of indigenous waste treatment and disposal facilities.

5.8. National Biodiversity Resources

In the previous paragraphs, we examined how national governments have attempted

to appropriate what are considered to be global common pool resources for the pur￾poses of averting a “tragedy of global commons.” In this section, we will examine the

inverse phenomenon: how the international community has tried through regulation

to implement effective international control of national biodiversity resources. This

still-in-progress “internationalization” of national biodiversity resources is based on

arguments that many states, and particularly developing countries, are inept at or

unwilling to manage in an effective fashion their biodiversity resources.

Endangered species and habitats are not generally considered global common

pool resources since they are under the national jurisdiction of states. Sometimes,

endangered species and habitats straddle national borders of two or more countries

130 Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of

Hazardous Wastes and their Disposal, Fifth Meeting, Dec. 6–10, 1999, Note by the Secretariat, Pre￾vention and Monitoring of Illegal Traffic in Hazardous Wastes and Other Wastes, UNEP/CHW.5/18,

Aug. 11, 1999.

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94 Foundations of International Environmental Law

that may collaborate for the common management of a resource. But, generally,

unsound management of a resource in one area does not automatically mean the

degradation of a resource in another contiguous area. The view of the ecosystem as

interdependent entity (everything connected to everything else) is not supported by

most ecologists. Many ecosystems have remained viable, whereas other ecosystems

adjacent to them have been degraded.131

Biodiversity resources, under the jurisdiction of one state, exhibit all the charac￾teristics of common pool resources within that state. Pastures, forests, and semiagri￾cultural areas often were common property resources that were later transformed,

because of population pressures, into open-access resources. States have attempted

to enclose these resources by using different versions of enclosure, namely through

common property, government ownership, and control and private property, with

mixed results. Chapter 7 provides many examples of the efforts of states to enclose

their common biodiversity resources.

Despite the fact that terrestrial biodiversity resources are not what one would call

global commons, efforts have been made to internationalize the issue of protection

of biodiversity resources. The Biodiversity Convention, for instance, provides that

biodiversity resources are a matter of global concern. The CITES regulates trade

in endangered species. A number of other conventions attempt to regulate specific

species and habitats located naturally within state boundaries.

The enclosure of biodiversity resources at the global level involves efforts to interna￾tionalize the management of such resources and then place such resources under the

control of states and other constituencies that perceive to have interests in the preser￾vation of resources. The international enclosure of biodiversity resources involves

two steps: first, the internationalization of biodiversity as an issue through a number

of soft global/regional instruments and media attention. The global importance of

the resource is underlined (e.g., the elephant, the Amazonian rain forest). Second,

stringent instruments are adopted the purpose of which is to affect the national/local

management of a resource. It is not surprising, therefore, that developing countries

have resisted, in principle, the international enclosure of their national commons.

Occasionally, however, they have been more complacent as such enclosure comes

with side-payments direly needed in many areas of the developing world.

Examples of the international enclosure of biodiversity resources include the con￾cept of heritage sites. The concept of heritage sites attempts to transform national

areas into, at least, areas of international concern. Regulation/prohibition of trade in

endangered species attempts to determine the evolution of local resource manage￾ment systems in developing countries. Debt-for-nature swaps involve debt forgive￾ness for developing countries under the undertaking by these countries to put land

aside for conservation – thereby dictating land utilization decisions in these countries.

It is interesting to note that environmental NGOs have been able to purchase debt

and used such debt for nature swaps with developing countries, thus adding, non￾governmental involvement in the attempt to enclose national biodiversity resources

internationally.

131 See Bobbi Low et al., Redundancy and Diversity in Governing and Managing Common-Pool Resources

12, Paper Presented at the 8th Biennial Conference of the International Association for the Study of

Common Property, Indiana University, Bloomington, Indiana, May 31-June 4, 2000.

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Enclosure of Global Commons and Global Welfare 95

The presumption behind attempts to internationally enclose biodiversity resources

is that developing countries lack the capacity or will to preserve such resources.

Without the intervention of developed countries and other interested constituencies,

it is perceived that developing countries are being faced with a tragedy of commons.

Because biodiversity resources of the developing world are conceived as unique and

worth preserving for humanity and future generations, a tragedy of commons within

a country is appreciated as a global tragedy of commons.

Generally, developing countries have resisted efforts of international enclosure of

their national biodiversity resources. Developing countries have refused to adopt an

international convention on forests.132 Developing countries are trying to assume

effective control over their agrobiodiversity resources.133 Developing countries

firmly insist on the inclusion, in most international environmental instruments, of

the phrase (or permutations of it) – “each state is sovereign over its natural resources.”

In other cases, however, developing countries have been tempted by the compensa￾tion offered and have agreed implicitly to the international enclosure of their natural

resources (e.g., through debt for nature swaps).134

6. ENCLOSURE OF GLOBAL COMMONS AND GLOBAL WELFARE

The gradual enclosure of global commons is a fact. The question that must be

answered is whether this enclosure is beneficial for the global welfare or whether

international policy makers should pursue a different course of action for the devel￾opment of international law, a course of action more likely to increase global benefits.

Even the use of term “global welfare,” however, could be looked on with distrust.

An argument that enclosure instruments, or any instrument for that matter, could

have some effects on “global welfare” seems to be premised on an assumption of

a world that shares the same interests. As often repeated in this study the world is

divided between developed and developing countries and even between developing

and least-developed countries. Even within the same group of countries, developed

or developing, states could very well conceive that their interests are not aligned

with those of their counterparts. Many could argue, justifiably then, that global

welfare is a fiction that attempts to generate unity in a world divided between

the haves and the have-nots or, even worse, according to nationally conceived

interests.

The notion of global welfare is examined here from the foundational perspectives

of international environmental law – namely, minimum order, equity, and effective￾ness. In other words, the question we attempt to answer is whether the enclosure of

global commons can generally be perceived as an equitable, effective enterprise for

all of those that participate in that enterprise.

132 See Chapter 7, Section 3.2. 133 Chapter 7, Section 2.1.2.2.

134 A debt-for-nature swap is an agreement between a developing nation and its creditors. In the debt-for￾nature swap, creditors agree to forgive the debts of a developing country in exchange for the environ￾mental protection of a specific area. The target of most debt-for-nature swaps are large areas of land

located in tropical rain forests. As will be seen in Chapter 7, these areas of land are often claimed by

agriculturalists.