Defining the "Transnational Commons"

Domestically, the “commons” are defined as resource domains in which common pool resources are found.[1] Such “common pool resources” are exhaustible, “managed under a property regime in which a legally defined user pool cannot be efficiently excluded from [the] resource domain.”[2] Examples include fisheries, pastures, and forests. It is the possibility of overuse that distinguishes these resources from pure public goods.[3] At the international level, the very large domains “that do not fall within the jurisdiction of any one country are termed international commons or global commons.”[4] “International commons” are those areas shared by several nations, such as the Mediterranean Sea and Antarctica, while the “global commons” are regions to which all nations have legal access, such as the high seas, outer space, the atmosphere,[5] and cyberspace.[6] A “global commons” then is “a resource that it is difficult or impossible to exclude others from enjoying but that is degraded by use.”[7] For clarity’s sake, I use the term “transnational commons” instead of “global commons” as this broader term includes regions outside the earth’s geographic constraints, namely outer space and cyberspace.[8]

The development of the transnational commons is tied up with the doctrine of territorial sovereignty that has in large part defined both international relations and international law since the 1648 Treaty of Westphalia.[9] The transnational commons are the primary exception to territorial sovereignty, existing beyond the reach of national or private appropriation due to technological limitations. At present the transnational commons covers more than 75 percent of the Earth’s surface, including the high seas, Antarctica which is 1.5 times the size of the United States, to say nothing of outer space, the atmosphere, or cyberspace.[10] It was only in the late twentieth century that exploiting the resources of the deep seabed, exploring space, changing the global climate, or indeed creating a new commons in the form of cyberspace was technically possible. As technology has progressed alongside surging demand for resources making possible national appropriation, governance of the transnational commons has taken on added urgency.

Areas of the transnational commons share certain common principles, though marked differences also exist. First, these regions cannot be appropriated either by nations or private parties as a result of UN treaties, convention, or practical technological limitations.[11] Second, as a result the transnational commons is governed to a greater or lesser extent by joint management common property schemes, loosely defined through the common heritage of mankind concept, with the exceptions of the atmosphere[12] and cyberspace.[13] Third, the transnational commons is comprised of common pool resources that, although extensive, are exhaustible. And fourth, the transnational commons is an open access regime due to the difficulty of enforcing restrictions on use, leaving it open to free rider and tragedy of the commons scenarios unfolding, as well as collective action problems.

Differences though also exist among the regions of the transnational commons. Cyberspace is not a finite resource in the same way that the seabed, Antarctic, or even the Moon are; it is also the newest addition to the transnational commons, meaning that regulations are the least developed. Similarly international environmental treaties have not yet adopted CHM terminology to describe the global atmosphere, instead using the phrase ‘common concern of mankind’ such as in the 1992 Convention on Biological Diversity, which is even weaker and more ambiguous than the CHM.[14] Militarization is a more pressing problem in the Arctic, cyberspace, and outer space than in the Antarctic, while the extent of international regulation and the role of the UN differs substantially in each area of the transnational commons due to varying political coalitions and the relative state of technological development. Environmental issues also diverge, extending from climate change, to black soot and oil pollution at the poles, to space junk, and even spam. These differences though are a matter of degree, stemming from the same fundamental problem that all these regions are open access common pool resources facing the same collective action problems. Thus, given the basic similarities shared by all regions of the transnational commons, solutions may be similar in nature, but differing in practice. Finding policy solutions for the transnational commons then generally necessitates an analysis of each regime individually. That is what I will attempt to do in future postings.

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[1] Susan J. Buck, The Global Commons: An Introduction (Earthscan Publications, UK, 1998) at 191.

[2] Id.

[3] In economic terms, a public good is a good that is non-rivalrous and non-excludable. This means that consumption of the good by one individual does not reduce availability of the good for consumption by others. A classic example is public education. See for example Paul A. Samuelson, The Pure Theory of Public Expenditure, 36(4) Review of Economics and Statistics 387–389 (1954).

[4] Buck, supra note 16, at 6. See generally Scott Barrett, International Cooperation and the International Commons, 10 Duke Envtl. L. & Pol’y F. 131 (2000) (defining the “global commons” and stating that the negotiators of international environmental agreements are more concerned with the timetable of the agreement than its enforcement); and Glossary of Environment Statistics, Studies in Methods, Series F, No. 67, United Nations, New York, 1997 (defining the “global commons” as “natural assets outside national jurisdiction such as the oceans, outer space and the Antarctic.”). The World Conservation Strategy, a report published by the International Union for Conservation of Nature and Natural Resources (IUCN) in collaboration with UNESCO, states “A commons is a tract of land or water owned or used jointly by the members of a community. The global commons includes those parts of the earth's surface beyond national jurisdictions - notably the open ocean and the living resources found there - or held in common - notably the atmosphere. The only landmass that may be regarded as part of the global commons is Antarctica.” International Union for Conservation of Nature and Natural Resources, World Conservation Strategy: Living Resource Conservation for Sustainable Development 18 (1980).

[5] See generally William D. Nordhaus, Managing the Global Commons: The Economics of Climate Change (MIT Press, 1994).

[6] Id. See also Thomas Bräuninger & Thomas König, Making Rules for Governing Global Commons: The Case of Deep-Sea Mining, 44 J. Conflict Resol. 604, 610 (2000).

[7] Keohane and Victor, supra note 6, at 10.

[8] Please note that the term “transnational commons” has been used in the literature before. See for example P. Dasgupta, KG Maller, & A. Vercelli, The economics of the transnational commons (1997); and R. Dorfman, Protecting the Transnational Commons (1998).

[9] Leo Gross, The Peace of Westphalia, 42 Am. J. Int’l L. 20, 20 (1948) (arguing that the Peace of Westphalia is of critical historical importance since it was the first treaty to establish “something resembling a world order unity on the basis of states exercising untrammeled sovereignty over certain territories and subordinated to no earthly authority”).

[10] U.S. National Oceanographic and Atmospheric Administration (NOAA), Ocean, http://www.noaa.gov/ocean.html (last visited May 19, 2009).

[11] These agreements include, among others: The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967) [hereinafter Outer Space Treaty]; The Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 72; and the United Nations Convention on the Law of the Sea art. 1, para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].

[12] Malcolm N. Shaw, International Law (4^th ed., CUP 1997) at 362, n.180.

[13] Regulation of cyberspace currently occurs at the national level, as well as privately through the International Corporation for Assigned Names and Numbers (ICANN). See for example 15 U.S.C. §§ 1114, 1125(a); and ICANN, About, http://www.icann.org/en/about/ (last visited May 19, 2009).

[14] See A. Boyle, International Law and the Protection of the Global Atmosphere, in International Law and Global Climate Change (eds. D. Freestone and R. Churchill), London, 1991, Ch. 1.