A legal history of the global commons

This research project aims to put together the story of how modern international law was established across the so-called “global commons” or areas beyond sovereign territorial jurisdiction (high seas, Antarctica, the atmosphere and the outer space). It explores the legal archives and case law concerning the Law of the Sea convention and the upcoming Oceans Treaty recently finalized; the Antarctic Treaty system; and the outer space treaties; as well as the 19th-century visions of pacific aviation that were later transformed into national control of airspaces.

Part of the research will also try to understand the history of the general concept of the ‘global commons’ as a whole; what has been the meaning, agenda and impact of this vision, and to what extent can it be sustained. In this context, the project will also be able to touch upon the two global commons that never were the subject of international legal regimes – aerospace and cyberspace – and wonder why their fate has been different.

A working hypothesis for the project is that the international legal language of the “global commons” can be understood as a rise-and-fall story of the mid-to-late twentieth century. In broad historical terms, its prime is situated in the high era of the UN General Assembly and the decolonization movement, which saw the global struggles between the principles of free trade and resource distribution (enshrined in the core UN treaties) challenged by the agendas for a permanent sovereignty over natural resources (PSNR) and the new international economic order (NIEO). [see generally Martti Koskenniemi and Ville Kari, ‘Sovereign Equality’, in Jorge Viñuales (ed.), The UN Friendly Relations Declaration at 50 (Cambridge University Press 2020), 166–188.] Examples of the outcomes of this struggle in the global commons include the 1994 Implementation Agreement to the UNCLOS, as well as the rejection of the 1974 Moon Treaty by the spacefaring nations. A clear contrast is found in the third example, the 1959 Antarctic Treaty and its Environment Protocol, which laid out a total ban of mineral and petroleum extraction in Antarctica, and which stands firm to this day. [see Ville Kari, ‘Etelämannersopimuksesta’, 49 Oikeus 2020, 6–23.]

Across all these regimes, the 21st century has brought forward new demands for exceptions and permissions for private and public extractive activities and for the curtailing of the conservation and redistribution mechanisms laid out in place in the past. At the same time, global concerns related to climate, biodiversity and persistent inequality call for strengthened public responses across the remaining planetary commons. These encounters anchor the study of the legal history of the global commons to acute present-day relevance.

Our research project seeks to put together the story of how modern international law reached across the so-called “global commons”, or areas beyond sovereign territorial jurisdiction. In practice, this means places like the high seas, the deep seabed, Antarctica and the outer space.

We bring together scholars interested in the long-term legal history of these common planetary spaces to collectively map out their overall story. The project is based on research in the history of international law, the law of the sea, and in Antarctic law, as told in law books as well as in long-forgotten records buried in public and institutional archives. We evaluate our findings in the light of the old, often dark legacies of conquest, colonisation and appropriation from the law of nations that may not be as far in the past as one might think. (Indeed, we suspect they may not be in the past at all.)