1 Premise of the Research
Our current geological era, the Anthropocene, is characterised by the ubiquitous impacts of human activities on the environment. The issue of environmental degradation is even more acute when it comes to global goods and commons, such as the high seas, the atmosphere, and outer space. These areas and the natural resources found therein do not belong to one State in particular, but rather to the international community. Consequently, efficient and sustainable management would require at the very least (near)-universal participation. In practice, unfortunately, most global goods and commons are heavily exploited, or are likely to become so as soon as technology puts them within our reach.
The majority of regulatory frameworks in international law have been framed from the perspective of the use of natural resources or space. However, in light of often unsuccessful resource management regimes, in particular for shared resources, increasing demand of natural resources, and climate change’s impact as an additional stressor on many components of the environment, non-use measures are discussed in several legal regimes. They are therefore likely to become more relevant – and controversial – in the future. Widening the scope of available measures to include those prohibiting use can be justified, not only because, practically, they add a potentially efficient tool to other conservation and management strategies, but also because, conceptually, non-use can generally be considered as equally legitimate to use when it comes to global goods and commons.
So what if we looked at resource management and conservation from the perspective of non-use? How common are non-use measures in the regulation of global goods and commons? What do such measures entail and aim towards? Under which conditions have they, in the past, been successful in achieving their goals? Are there new non-use measures currently being discussed and developed? And are these questions even more complex/pressing when discussing global goods and commons?
These are some of the questions that came up when we started conducting our respective research. Solène was working on tourism in Antarctica, and Catherine was focusing on the environmental regulation of deep-seabed mining. We realised that some measures limiting the use of Antarctica for tourist activities and others limiting the exploration for and extraction of deep-seabed minerals could both be considered non-use measures. Those are only examples of non-use, joining better-known existing measures such as the whaling moratorium, the abstention from fishing in the high seas portion of the central Arctic Ocean, and measures for the protection of the ozone layer.
These measures, however, have never been studied under the angle of non-use per se. Indeed, the concept of non-use has only been explored to a limited extent in legal academia, a typology of non-use measures has never been developed, and the variety of non-use measures in regimes regulating global goods and commons has not been comprehensively examined.
Considering the overlaps in our research interests, we saw an opportunity to join forces. We decided to work on non-use measures in the management of global goods and commons, focusing on environmental considerations. This emphasis on the protection of the environment flowed logically from our angles of research and is unavoidable in the face of the triple planetary crisis (pollution, climate change, and biodiversity loss). Additionally, with our research interests deeply rooted in international law, we decided to centre our examination on global goods and commons, as some of the issues arising in the governance of areas beyond national jurisdiction (ABNJ) and the natural resources therein are unique to such regimes. Since other questions raised in relation to global goods and commons are equally relevant for other international law regimes, the lessons learnt in this book can also, in large parts, be transposed to the context of shared resources. Yet, as the focus on ABNJ does not fully align with realities of the geophysical world, some contributions touch upon measures that might also be applicable to areas under national jurisdiction. For thematic coherence, we have left aside some regimes, such as the governance of artificial intelligence or weapons control, that do include
We decided to bring together multi-disciplinary experts in the regimes of various relevant global goods and commons, in order to better understand how specific non-use measures were developed, adopted (or were not adopted), and with what effects. In addition to international law specialists, the project hence gathers experts in other academic fields, such as marine environmental sciences and social sciences. Their perspectives on why a non-use measure might be necessary and how one would monitor its impact provide an important context for understanding how non-use measures position (or could position) themselves within the various regulatory frameworks.
3 Structure of the Book
In order to better understand selected non-use measures in each regime under examination, contributors were asked to reflect on a series of questions. These guiding questions (see Annex I to this chapter) reflect our interest in clarifying the conditions under which non-use measures were successfully adopted, their effectiveness in reaching their intended goals, and the role they play (and might increasingly do so) in addressing the environmental challenges of our time. The book consequently provides a regime-by-regime exploration of non-use measures, before turning to a cross-sectoral analysis, where potential conditions for successful adoption and implementation are identified.
Following the introduction, the book is composed of 19 chapters, starting with a substantive analysis of the concepts related to non-use. It is then divided in four main parts, each addressing a global common: the high seas, the deep seabed, Antarctica, and the atmosphere and outer space. Each part starts with a case-study, and then turns to selected specific non-use measures. We acknowledge that some chapters could have found their place under different parts, which shows how interrelated all the issues presented in this book are. Finally, a conclusion brings together the cross-cutting issues identified in the book.
The book’s first substantive chapter, by Solène Guggisberg, presents a conceptual framework for the analysis of non-use measures. After discussing the concepts of use and non-use, the author develops an innovative typology of non-use measures, highlighting a variety of characteristics of these measures. The author finally explores the aims, stated or otherwise, behind the adoption of non-use measures.
Chapters 9–11 focus on the deep seabed in light of the current debate on deep-seabed mining. First, Sabine Gollner, Patricia Esquete, and Jesse van der Grient present a case-study on the limited environmental knowledge of deep-sea ecosystems, and discuss the implications of such scientific gaps for use and non-use of the deep sea. Then, Aline Jaeckel, Jeff Ardron, Laisa Branco de Almeida, and Pradeep Singh present potential non-use measures as they pertain to deep-seabed mining in the Area and focus specifically on the possible moratorium on deep-seabed mining that is currently discussed by member States and observers of the International Seabed Authority. Lastly, Elisabetta Menini, Catherine Blanchard, and Marzia Rovere examine existing non-use measures specifically targeting environmental protection in the deep-seabed mining regime, by analysing the processes leading to the establishment of Regional Environmental Management Plans.
Chapters 12–15 focus on Antarctica. Katharina Teschke and Rebecca Konijnenberg first present a case-study on the proposal for an MPA in the Weddell Sea under the Convention on the Conservation of Antarctic Marine Living Resources, discussing the science behind this proposal and its
Chapters 16–19 move upwards and focus on the atmosphere and the outer space. Jeroen Oomen first presents a case-study on solar geoengineering, calling for a non-use agreement and arguing that solar radiation modification presents unacceptable geophysical, ecological, and political risks. Solène Guggisberg and Mitchell Lennan explore the two main global regimes that relate to the planet’s atmosphere, finding that, while the one focused on ozone protection includes non-use measures and the climate change regime clearly does not, this major difference is a symptom rather than the cause of these regimes’ distinct levels of success. Thomas Cheney focuses on the usability of space resources, arguing that, in light of the current environmental crisis caused by climate change, the freedom of use found in the Outer Space Treaty ought to be interpreted in a novel and restrictive manner. Finally, Anne-Sophie Martin explores the potential development of restrictions to use in a regime that emphasises the freedom of use, by presenting safety zones on the Moon and discussing whether they might be stepping stones to non-use measures in outer space.
On the basis of the regime-by-regime analysis conducted throughout the volume, the concluding chapter first reflects on the complexity of the non-use concept once applied to actual examples. Despite the diversity of the non-use measures analysed, it then provides a comparative discussion of the conditions under which non-use measures were successfully adopted and under which they best reached their intended goals. The conclusion finally considers potential future non-use measures, paths forward, and overarching questions, such as the interactions between non-use measures and climate change, and the potential unintended consequences of such measures.
Finally, it is to be noted that the last substantive revisions of the different chapters were done between the second half of 2024 and February 2025, which explains that subsequent developments are not considered in the book.
Under which conditions have non-use measures been successfully adopted?
How have conditions of adoption impacted the success of non-use measures (and how can success be defined)?
Do the mandate of international bodies and/or their decision-making procedures impact the development of non-use measures and/or their effectiveness in reaching the objectives set?
How have modalities of non-use measures’ applicability vis-à-vis Parties/Members (e.g. opting out and reservations) coloured the level of participation in those measures and/or their effectiveness in reaching the objectives set?
What is the impact of the rights of non-members and pacta tertiis on the development of non-use measures and on their effectiveness in reaching the objectives they set?
What are the challenges to successful non-use measures under international law?
What are the prospects of adoption of the measures under discussion in relation to high seas fishing, Antarctic tourism, deep-seabed mining, MPAs in ABNJ, and carbon emissions?
As limited-use/non-use measures are an intrinsic part of the new Agreement on the Conservation and Sustainable Use of Marine Biodiversity of Areas beyond National Jurisdiction (the BBNJ Agreement), what could this Agreement learn from existing non-use measures, both in terms of ‘do’s’ and ‘don’ts’? And how will the BBNJ Agreement, by its application to ABNJ at sea worldwide, interact with existing institutions to uphold existing non-use measures and establish new non-use measures?
How, and to what extent, are the discussed measures an embodiment of the precautionary approach?
How, and to what extent, are the discussed measures related to the global issue of climate change?
From an environmental sciences’ point of view, what is the gain of non-use and the risk of use?
From an environmental sciences’ point of view, what is the proven effectiveness of existing MPAs?
From an environmental sciences’ point of view, what is the role of science in non-use measures at various stages of the process (e.g. in discussing the need for non-use measures, in adopting them, in implementing and monitoring them, in ending them)?
The views expressed in this chapter derive exclusively from my former affiliation as Assistant Professor of Public International Law, Utrecht University (The Netherlands) and are not endorsed by nor represent the views of my current employer.