David Krott is a research associate at the FH Aachen and PhD candidate at the Vrije Universiteit Brussels.

Introduction

Picture a flying penguin in a space suit crashing somewhere in the airspace above the blue vastness of the world’s oceans. You might be saying to yourself: “Penguins do not fly!” Well, this particular one is wearing a space suit, so it can. That is not the point, though. This representative of the family of the Spheniscidaes stands metaphorically for one of the global commons of humankind. The penguin itself, let us pretend it is an emperor penguin, represents Antarctica, the space suit stands for Outer Space, the fact that the penguin is flying shall hint to the atmosphere, and last but not least, the flight position of the penguin high above the oceans points to the high seas. Why, then, is the penguin crashing? Well, this is a metaphoric twist to indicate that the global commons are in a bad state. All need a closer look at stopping and preventing environmental harm through human activity.

The five global commons of humankind all experience serious problems through human conduct. For example, Antarctica is under massive pressure through climate change and experiences a waste issue; the high seas suffer from significant overexploitation of their resources and a waste problem as well; the atmosphere is increasingly polluted; even Outer Space, which long seemed beyond human reach, is seeing an issue with human waste.

It is a common interest of the global community to preserve these global commons and to prevent human-made harm and the disastrous depletion of their resources.[1] This text is suggesting to explore their protection via the criminalisation of extensive harm to the global commons through international criminal law.

The idea of the global commons

The global commons are natural features and areas that all nations and peoples of the Earth share.[2] Any particular country or individual does not own them, but they are instead considered part of the common heritage of humanity.[3] Due to this non-ownership, the areas of global commons are beyond the limits of any national jurisdiction and reach.[4] The global commons are (as of now) the atmosphere, the world’s oceans, Antarctica, Outer Space and certain regions of the high seas.[5] In his 1968 essay “The Tragedy of the Commons”, Garrett Hardin put the global commons in the spotlight.[6] Hardin’s essay was influential in shaping the debate over how to manage and protect the commons.

These commons have one common denominator: All are essential for human survival and well-being. Under the name “tragedy of the commons”, Hardin argued that the absence of private property rights in the global commons creates a situation in which individuals and nations are incentivised to exploit the resources for their benefit without regard for the long-term consequences.[7] He used the example of a common pasture, open to all village members for grazing their animals. In this situation, each individual has an incentive to graze as many animals as possible on the commons because any animal they do not graze will be grazed by someone else.[8] However, if everyone follows this logic, the pasture will become overgrazed and ultimately depleted, leading to a tragedy for all. This example can be mirrored upon the (potential) usage of the atmosphere, the oceans, the high seas, Antarctica or Outer Space. To avoid tragedy, it is necessary to establish systems of property rights or other forms of regulation to limit the use of the commons.[9] Humanity’s population growth and resource consumption must be controlled to avoid overuse and degradation of the global commons. Because any particular country or individual does not own the global commons, there is a need for international cooperation and coordination. Thus, international agreements should govern the management of the global commons.

Even today, the idea of global commons is still alive. That the general idea of globally shared areas/resources is not only idealistic (or even utopian) is reflected in several international treaties. Art. 11 of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies lists the Moon and other celestial bodies as a common heritage of humankind, or Article 136 of the United Nations Convention on the Law of the Sea (UNCLOS) names the seabed and the ocean floor in this regard. At an intergovernmental conference, a draft agreement under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) was agreed upon. Ensuring the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, for the present and in the long term, is the main objective of the new agreement.

An international criminal law approach towards the global commons

The global commons are all under severe environmental pressure, as already hinted at in the introduction. Unsustainable resource exploitation, climate change, and waste pollution to only name some of the environmental problems involved. This stems from the impacts of Hardin’s tragedy and general destructive human activities towards the natural environment. This pressure is constantly rising. New reports, for example, indicate a rise in ocean temperatures (leading to more weather extremes) or ever-increasing risks with more and more garbage in Outer Space.

The criminalisation of environmental harm on the international level, in general, is a growing movement.[10] The idea of ecocide (or an international environmental crime) shall outlaw the severe destruction or damage to ecosystems and natural environments through human actions. This would mean that those responsible for grave environmental harm could be held legally accountable for their actions (under the circumstances a potential international environmental crime sets out). Proponents of the idea of ecocide argue that the destruction of ecosystems and natural environments can have significant and far-reaching impacts on human health and well-being, as well as on the survival of other species and the planet as a whole. They further argue that recognising ecocide as an international crime would help to deter destructive practices and promote greater accountability and responsibility for environmental protection.[11] Opponents of the idea name the difficulty in finding a definition, enforcement issues and that it could be used to restrict legitimate economic and development activities. They take the position that existing laws and regulations are sufficient to protect the environment and that the focus should be on improving and enforcing these laws rather than creating new ones. Overall, ecocide is a controversial and complex issue that raises essential questions about the relationship between humans and the environment and the responsibility of individuals and corporations for environmental protection.[12]

In light of these general remarks, a specific ecocide directed at the global commons is challenging. However, it might be less complicated than a general crime of ecocide. The general idea of the global commons and the need for their protection for the sake of humanity is already widely agreed upon among the community of states. The width of criminalisation is much narrower than for ecocide in general. A crime outlawing environmental harm to the global commons might be a primary starting point for an ecocide provision in the long run. As for the global commons, no international agreement contains provisions criminalising harm to the commons. Sadly, the BBNJ mentioned above does not introduce any provisions criminalising harm to the global commons. Such a provision that, for example, issues criminal sanctions for “severe harm towards a certain marine protected area established under the BBNJ” could strengthen the enforcement side of this particular agreement and create a deterrent effect on potential perpetrators. However, criminalising the use or exploitation of a particular resource from the global commons or their general harm could lead to unintended consequences, such as creating black markets for these resources, making them even harder to manage and regulate.

Looking forward

Remember the flying penguin from the beginning? Hers or his metaphoric crash on the high seas might be prevented (or at least softened) with the help of an internationally agreed-upon environmental crime against the global commons. Nevertheless, criminalising harm against the global commons via an international environmental crime  regime is complex and controversial. It can be rightfully questioned whether it is a feasible approach to managing and protecting these shared resources. Effective management and protection of the global commons require a collaborative and multilateral approach that involves international cooperation, clear legal frameworks, and strict enforcement mechanisms.

Furthermore, promoting sustainable development and responsible use of the global commons would require a commitment to addressing underlying issues such as poverty, inequality, and environmental degradation. This would involve promoting education, research, and technological innovation to improve the management and utilisation of these resources sustainably and equitably. In this complex field, criminalising certain acts that severely harm the commons is only one cog in the system. Nevertheless, next to the symbolic value of outlawing environmental harm internationally, it could lead to a more sustainable understanding of the human-nature (global commons) relationship. This criminalisation would undoubtedly play its role in environmental protection.

           Let us help the penguin!

[1] John Vogler, The Global Commons – Environmental and Technological Governance, John Wiley & Sons, 2nd edition, 2000, 2.

[2] Susan Buck, The Global Commons: An Introduction, Washington D.C., Island Press (1998).

[3] Ibid.

[4] Ibid.

[5] The five global commons with a little more background: The atmosphere is a vital resource that provides air for breathing, regulates climate and weather patterns, and protects the planet from harmful radiation; The oceans cover over 70% of the Earth’s surface and are another vital resource for human survival, providing food, transportation, and energy. The oceans are also home to a wide range of marine life, many of which are still undiscovered; Antarctica is not only the fifth-largest continent but also the coldest, driest, and windiest place on Earth. It is a unique natural laboratory for studying Earth’s climate and is home to many species of wildlife, including penguins, seals, and whales; Outer Space is the region beyond Earth’s atmosphere and includes the Moon, other planets, and the Sun. It is an essential resource for scientific research, exploration, and communication; Certain areas of the high seas are a vast expanse of ocean that lies beyond the jurisdiction of any single country. They are home to diverse marine life and are an important resource for fishing, shipping, and other activities.

[6] Garrett Hardin, The Tradgedy of the Commons (1968) 162 Science, 1243-1248.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] See, e.g. Polly Higgins, Eradicating Ecocide, Shepheard Walwyn (Publishers) Limited, 2015; David Krott, Criminalisation as Stronghold against Worldwide Environmental Harm (2021) 3 The Resolution Journal; Parliamentary Assembly of the Council of Europe, Recommendation 2466 & Resolution 2477 (25 January 2023).

[11] Higgins (n 10).

[12] For a good overview of the complexity of ecocide and its definition see Darryl Robinson, Ecocide — Puzzles and Possibilities (2022) 20(2) Journal of International Criminal Justice 313, 324.