1 Introduction
Large-scale environmental degradation, species extinction, and the climate crisis more generally demonstrate that the current global governance regimes are not adequate to respond to the many environmental challenges our world is facing. This dire reality has led to some attempts to find solutions through profound rethinking of global governance and international law, in particular through the Earth Governance System,1 Earth System Law,2 and the concept of rights of nature.3 At present and although they are the object of intense academic research, these new paradigms have limited practical applicability under international law. That is where ‘non-use measures’ could be seen as a reasonably practical alternative – or a stepping stone – to such radical rethinking. Measures that focus on not using a resource can indeed serve a variety of goals, from supporting the long-term recovery and sustainable use of
Non-use measures exist but are not very widespread, especially when it comes to global commons where the focus is usually on how to manage a resource and how to share the benefits. They are, however, increasingly discussed in international regimes dealing with resources such as deep seabed and outer space minerals, high seas’ biodiversity, or Antarctica. Nonetheless, with the traditional focus on using resources, little academic attention has been paid to non-use measures as a separate type of measures at the international level. After reviewing the concept of use, offering a definition, outlining a typology, and providing some examples of what constitutes use in relation to global goods and commons (section 2), this chapter turns to non-use. It first presents the research that does exist on that concept (section 3). It then develops a typology of non-use measures (section 4), before discussing the rationales and objectives behind the adoption of such measures (section 5).
2 Use
‘Use’ and ‘non-use’ are two concepts of relevance in all regimes managing resources and addressing conservation. To examine non-use, one first needs to clarify what should be understood by use. Hence, this section presents the working definition of use for the purpose of this book (2.1), as well as offers a typology of use (2.2). Next, it examines resource domains, presenting those under analysis in this research, and discusses the types of resources, or goods, that can be found therein (2.3). Finally, this section provides some examples of uses, or activities, that take place in the relevant resource domains (2.4).
2.1 Definition of Use
‘Use’ refers to any activity that targets or otherwise impacts a resource. As such, any activity, even the most benign, is in fact a form of use of the environment, whether by using the resources the environment contains (natural resources) or the resources this environment represents (spatial-extension resources).5
Use of natural resources consists of extracting resources from the environment. Such activities include mining for minerals or petroleum, fishing, or
Use of spatial-extension resources relies on adding a person, object, substance or energy to a given space. Spatial-extension resources “have value because of their location”.6 Their exploitation takes various forms: tourism for example uses a given space and, in the process, adds people, and potentially waste to that space, causing impacts on the ecosystem. The oceans or the atmosphere can also be spatial-extension resources when substances or energy are discharged, for example through dumping of waste at sea, or introduced, for example through emission of CO2 in the atmosphere or injection of aerosol particles in the stratosphere, again with impacts on the relevant ecosystems. Such discharges or introduction of people, substances, or energy in areas can be intentional (such as in the case of dumping or solar radiation modification) or might be an (unintended) side-effect of another activity (such as in the case of the introduction of CO2 in the atmosphere from industrial activities).
2.2 Typology of Use
Use can be categorised as extractive, when natural resources are removed from the environment (eg fishing), or additive, when people, objects, substances or energy are added to the spatial-extension resources (eg dumping waste into the ocean). In that sense, extractive use relates to the use of natural resources, while additive use relates to the use of spatial-extension resources.
Use can also be divided into use that has the potential of being sustainable versus use that is automatically unsustainable (see Table 2.1). In the former category, one finds renewable resources, such as flora or fauna harvested up to their maximum sustainable yields, and resources that can continue functioning even with a certain level of disturbance due to ecosystem resilience. The concept of maximum sustainable yield refers to the “largest yield one can harvest from the resource over an indefinite period”,7 or the “highest average catch that can be continuously taken from an exploited population […] under average environmental conditions”.8 It is used mainly in relation to fisheries science and management to determine which level of catches can be sustained in the long-term. Ecosystems more generally are able, up to a certain point, to “withstand and recover from perturbations” and their level of resilience
In opposition to this use, which has the potential to remain sustainable, some uses are inherently unsustainable. Such cases relate to non-renewable resources, which, once removed from the environment, do not replenish themselves – or would require such a long period to do so that it would fall within the geological time scale. The prime example of such resources are minerals: once removed from the environment in which they were located, they do not ‘grow back’. It is acknowledged that some activities in this category might relate to resources that will enter a perfectly circular system (with a perpetual cycle of production-recycling-production) or aim at creating sustainable energy, for example when mining resources are needed for the production of renewable energy. Nonetheless, the focus remains here on whether the resource itself can be replenished within short time-frames, which is not the case with mineral resources.
Typology of use
| Sustainability of use →
Types of resources and use ↓ |
Potentially sustainable (renewable resources used within carrying capacity) | Not potentially sustainable (non-renewable resources) |
|---|---|---|
| Natural Resources – Extraction | Fishing
Whaling |
Mining |
| Spatial-Extension Resources – Addition | Tourism
Emissions of greenhouse gases (GHG s) Marine/Solar geoengineering Dumping Transport/shipping |
Every use has an impact on the targeted resource(s), and often also on other resources. This reality tends to be hidden by some word choices. The consequent lack of terminological clarity and the risk attached thereto are described here below.
The use of one resource will generally have impacts on other, non-targeted resources. For example, if deep-seabed exploitation starts, minerals will be its
2.3 Resources Domains and Goods
A resource domain is understood as a defined geographical area within which resources can be found in the form of natural resources or which is the spatial-extension resource itself.21 The focus of the present research is on resource
Commons and global commons have been the subject of extensive academic literature, in the legal and social science fields.26 The present research
Both natural resources and spatial-extension resources can be referred to as ‘goods’. Goods can be characterised along several lines (see Table 2.2). First, some goods are legally accessible by all (or most) users (non-excludable goods), while others can be reserved by a portion of the stakeholders (excludable goods). Second, some goods, when used, continue being equally available to others (non-rival or non-subtractable), while others decrease in quantity or quality as they become used (rival or subtractable goods).33
In light of this book’s focus on global commons, only the non-excludable goods will be examined. These common goods can be divided into two
Characterisation of goods
| Availability →
Goods ↓ |
Rival | Non-rival |
|---|---|---|
| Excludable | Private goods | Club goods |
| Non-excludable | Common pool goods | (Global) public goods |
Table inspired by Chin (n 33)
2.4 Examples of Uses
Various activities, also referred to here as ‘uses’, can take place within the examined resource domains and in relation to these common pool goods
Examples of uses in global/international commons
| Resource domains: global/international commons | Resources: common pool goods | Uses of resources |
|---|---|---|
| High seas | Fish
Marine mammals Ocean space and environment |
Fishing
Whaling Dumping, including for marine geoengineering; shipping |
| Antarctica | Fish
Minerals Antarctic space |
Fishing
Mining Tourism |
| Area | Minerals | Mining |
| Outer space | Minerals
Outer space space and properties |
Mining
Satellite placing/geo-stationary slots; tourism; geoengineering |
| Atmosphere | Atmosphere space and properties | Emitting ozone, GHG s, or other substances, including for geoengineering; air travel |
Worth noting, research is also a use in that it is an activity with a potential impact on the resources of a resource domain. It might target the natural resources themselves, when taking samples, or the spatial-extension resource, when entering a space to take measurements. Research is undertaken in all global commons and is usually the object of rights and obligations that differentiate this use from others. It often is mentioned as a use that might be acceptable even when other uses ought to be/are prohibited. This is for example the case in the regime of the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and its 1996 Protocol (London Convention/Protocol), which prohibits ocean fertilisation activities, except for legitimate scientific research.38 Similarly, the moratorium on commercial
3 The Concept of Non-use: Origins and Development
The term ‘non-use’, in opposition to that of use, is understood as the absence of ‘use’ of natural resources or spatial-extension resources. It covers a wide-range of concepts, depending on the discipline, as is outlined here below, starting with social sciences (3.1), before moving to the legal field (3.2), and the study of non-use measures in particular (3.3).
3.1 Non-use in Social Sciences
In academic research, the concept of ‘non-use’ is originally found in social sciences such as ecological economics or environmental management. First identified in 1967 by Krutilla,40 non-use value became part of the measurement of a resource’s total economic value.41 The concept relates to assessing the potential value of not using a resource, in opposition to the expected benefits of using it in the present.
Non-use values mainly include the existence value, that is the value given to a resource for its mere existence. According to some views, it also covers the bequest value, which is “the value attached to preserving a good or service for use by future generations”.42 However, there is no consensus on the question of future use: some definitions of non-use values indeed preclude potential use by future generations,43 which would consequently limit the concept of bequest value. Other non-use values mentioned are cultural44 or
3.2 Non-use in Legal Studies
The concept of ‘non-use’ in the legal field has developed in at least two distinct directions, one considering non-use rights as the rights of States not to use, generally for environmental reasons, and the other focusing on non-use rights as the rights of nature to be on equal footing with human interests, and hence potentially not to be used.
When it comes to the first understanding of non-use rights, Molenaar develops and analyses the concept in relation to marine biodiversity. He notes that the international framework for the sustainable use of marine biodiversity ought to, but does not to date, include an explicit “right of States to […] biodiversity”.48 Such a right would not only recognise the variety of values associated with marine biodiversity, such as conservation that aims at long-term sustainable use, but it would also acknowledge non-use for other reasons.49 This right would ensure that marine biodiversity for present and future generations is given equal consideration as socio-economic interests.50 He points out that, at present, such a right is not explicitly recognised. However, it is implicit in the obligation of States to protect the marine environment and the right of non-user States to participate in the work of some international bodies managing marine living resources, such as the International Whaling Commission (IWC) and the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR).51 Moreover, the relatively accepted practice by States to under-utilise their fishing quotas indicates that the use-it-or-lose-it rule has not been strictly pursued in international fisheries law.52 While it seems that
Except for this analysis by Molenaar, most relevant academic research focuses on domestic developments and seems to associate non-use rights with rights of nature.54 Such rights do not actually require the absence of use but rather consider that “nature has inherent rights to exist, evolve and fulfil ecological functions […] and that human activities must be managed so as to prevent destruction of nature”.55 The right of non-use has been studied and advocated for by Laitos.56 Looking at the historical development of legal regimes focused on resources, he shows the inadequacy of laws to protect the environment, whether they are rules promoting use, rules conserving resources but with a view to future use, rules promoting non-use to ensure continued recreational and existence value of the environment for humans, or even human rights to a clean environment. He views a right of non-use as an ecocentric right, making it in fact a right of nature. Such right of nature is not an absolute right which would preclude any use, but rather a right “to be considered as part of the use calculus, along with the consequences for nature and natural systems if the right were ignored”.57 Laitos’ research, as most research on the rights of nature, refers to the domestic legal systems in which the rights of elements of the natural world have been recognised, sometimes with them being granted legal personality and innovative forms of representation being established.58 The international legal regime is generally not discussed, as rights of nature are, on the international scene, lex ferenda at the most.59
Other articles referring to non-use rights, such as those by Leonard and Regan,60 also question the bias of many legal systems towards regulating the
Squarely placing his reflection within the Earth System Law movement,64 van Asselt argues in favour of an international law of “leaving it in the ground” as a necessary step to mitigate climate change.65 He identifies multiple limitations to the existing legal framework, especially the lack of clear legal guidance directing States to move away from fossil fuel production.66 This fits in with one of the main criticisms voiced by the Earth System Law proponents, that is the absence of a systemic approach across fields of international law. Van Hasselt suggests that, by using existing international legal principles such as prevention of harm, intra-generational equity and common but differentiated responsibilities and applying some rules of human rights law, in particular the rights to life, health, food, and development, a coalition of willing States could “establish non-binding commitments to wind down fossil fuel production in line with climate goals while providing for a just transition”.67 This would be followed by an alignment of hard law with the need to move away from oil and
It is worth remarking that non-use in legal academia refers to different concepts and rights holders. While the right of non-use developed by Molenaar is a substantive right held by State not to use a resource and preserve it instead, the right of non-use conceptualised by Laitos and, more generally, the rights of nature movement is a right held by nature to be considered equally as the rights of humans to use, which places corresponding obligations on States. Neither of these is equivalent to non-use measures, which are – as will be further developed below – obligations, undertaken and held by States, not to use a specific resource.
3.3 Non-use Measures in Legal Academia
Non-use measures themselves have also been examined, to some extent, in academic literature. In addition to one article by Yin focused on the concept of moratorium but only marginally addressing moratoria related to natural resources,69 publications are usually limited to one specific field, and academic interest is often linked to current developments.
For example, in the lead up to the adoption of the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement), MPAs have been the subject of numerous publications.70 By focusing on such area-based management tools which might prohibit some uses at sea, this body of research has examined the legality, enforceability, and potential successes of non-use measures. Other non-use measures are discussed amongst a variety of management issues within a specific regime, such as the moratorium on commercial whaling within broader
4 Typology of Non-use Measures
As mentioned above, ‘non-use’ is the absence of use of natural resources or spatial-extension resources. Non-use measures are measures adopted on the international scene that ban or suspend the use of a resource. Such measures are referred to under a variety of appellations, such as ban, moratorium, abstention, closure, no-take zone, closed area, closed season, sanctuary. The term itself does not necessarily provide information as to the specificities of the non-use measure in place. Important characteristics for the study of non-use measures include the legal nature of the instrument giving them effect (4.1), the participation by States in such instruments (4.2), as well as their spatial applicability and duration (4.3). Non-use measures are different from measures that simply restrict use, but they can also co-exist (4.4).
Non-use measures can be found in a variety of instruments, ranging from multilateral treaties to unilateral policies. The qualified and temporary abstention from fishing in the high seas portion of the central Arctic Ocean, for example, is one of the main substantive elements in a treaty.76 The moratorium on Antarctic mining is equally sourced in a binding instrument, being the object of an article in the Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol).77 Other non-use measures are found in annexes or appendices to treaties, such as the moratorium on commercial whaling which was established through the adoption of zero quotas under the Schedule to the ICRW.78 Many non-use measures are created by instruments adopted by international organisations or meetings of parties to a treaty; for example, no-take zones in MPAs are adopted by CCAMLR79 and Antarctic Specially Protected Areas (ASPA s) by the Antarctic Treaty Consultative Meeting.80 Non-use (or restricted-use) measures can furthermore be created in instruments developed outside of established intergovernmental settings, by a coalition of like-minded States; this is for instance the case with the Artemis Accords and safety zones on the Moon.81 Finally, a State can make a unilateral declaration or adopt a domestic policy, whereby it decides to refrain from using a certain resource. The Netherlands, for example, has an official policy of forbidding helicopter flights, heliskiing and drones for tourism in coastal areas of Antarctica,82 a non-use measure (albeit not one adopted at the international level, as per the definition developed in this chapter) which is not required under the Antarctic Treaty System rules.83
Procedural aspects will influence how an instrument containing a non-use measure can be adopted (and become effective) and how an existing instrument can be amended to add – or reversely bring to an end – such a measure. When the non-use measure is found in a treaty, its adoption and entry into force have clear procedural requirements, such as the ratification by all original signatories86 or by a certain pre-determined number of States.87 Once in force, some treaties, protocols or annexes thereto can be amended. The procedures vary between regimes. For example, amendments to the London Convention and Protocol and their annexes can be adopted by a two-third majority,88 while those to the Environmental Protocol require a three-quarter majority and include further substantive and temporal requirements when it
Procedural rules are also of great importance for non-use measures found in instruments adopted by international organisations or meetings of parties. Some treaty regimes rely on consensus, and others on (qualified) majority decision-making. Hence, in order for a non-use measure to be adopted, or, in reverse, terminated, a particular threshold must be met. At the IWC, the Schedule can be amended, as it was to establish a moratorium on commercial whaling, through a three-quarter majority.91 In contrast, under the Antarctic Treaty, Resolutions and Measures can only be adopted by consensus.92 This makes the adoption of a non-use measure – but also its reversal – much harder to achieve. Additionally, some instruments adopted by international organisations or meetings of parties, in particular those intended to be legally binding, might be subject, once adopted, to a formal ratification process – as are for example Measures adopted by Antarctic Treaty Consultative Parties.93
4.2 Participation and Scope of Applicability
Non-use measures can have a global, regional, or limited reach ratione personae. This depends, in part, on the intended scope of applicability of the instrument used to adopt a non-use measure and, in part, on its success at gathering support amongst States.
Some regimes can be joined by all interested States and are hence aiming at universal participation. An example of a treaty which can be acceded to by any State – and which has been ratified by 198 Parties – is the Montreal Protocol.94 The phaseouts of ozone depleting substances provided for in that instrument are consequently characterised by a wide scope of applicability ratione personae. A non-use measure with similar reach can also be found under the auspices of a global and open international organisation; this would for example
Other regimes do not have such large participation – and measures they provide thus only apply to a limited number of States. Some regimes are open to all States, but have failed to gather widespread support. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies,96 for example, is in force, but only binds 17 States, none of which are main players in outer space activities. Other measures are adopted within the scope of systems that are fully functioning, but do not aim at bringing together all States because of specific conditions to become a party. For example, many regional fisheries management organisations (RFMOs) are not fully open as, in some cases, applicants to membership must meet certain eligibility criteria and/or their requests to join need approval by the existing members.97
Whether a treaty regime is intended to remain a ‘closed club’ – which in turn raises some major issues of legitimacy when it comes to the regulation of global commons – or whether it failed to attract near-universal participation, non-use measures adopted by such regimes will only apply to their parties/members, leaving open the issue of third parties’ behaviour. The main situation where measures would be legally-binding on third parties is in the case of an objective regime,98 but the existence of treaties that would create obligations for non-parties remains highly controversial.
Non-use measures can have a global, regional, or local scope of applicability ratione loci. They can apply to the whole range (or most) of an activity or species, or be much more specific and limited. An example of a measure intended to apply globally is the whaling moratorium, since it sets zero quotas for the whole range of ocean spaces.99 Other measures apply to a large region, but do not cover the whole area where an activity could take place: the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA) requires the abstention of fishing in the high seas portion of the central Arctic Ocean but is not applicable to areas under national jurisdiction,100 which are nonetheless part of the fish migratory range. Finally, some measures are more localised: non-fishing zones under RFMOs can be quite restricted spatially,101 and Visitor Site Guidelines only apply to discrete tourist sites in Antarctica.102
The participation to the instrument in which a non-use measure is found differs from the geographical reach of the measure itself. An example of this distinction is Areas of Particular Environmental Interest where deep-seabed mining is not allowed.103 These measures are very localised in their implementation. However, since they are adopted by the ISA, a near-universal regime in terms of participation, they are to be respected by the large majority of the international community.
When it comes to the time period during which a non-use measure is in effect, non-use measures can take the form of a prohibition of an activity with no envisioned end date: the prohibition of dumping certain substances at sea is for example not time-bound.104 Other non-use measures, such as no-take zones in the Ross Sea region MPA under CCAMLR, are temporary.105 These can be open in time until certain conditions are met and the measure might be reversed. An example of that are the zero quotas set under the Convention on the Conservation and Management of Pollock in the Central Bering Sea
Another temporal element of note is whether a non-use measure is adopted before the relevant activity has started, or whether it follows an already established use. Some measures are indeed preventative in nature, in that they address a potential use before it happens, prime examples being the abstention from fishing under CAOFA or the mining ban in Antarctica. Other non-use measures are responsive, either in the face of a need to ensure long-term sustainable use, as with some fishing closures, or to prevent future degradation in – and enable recovery of – an overexploited resource, as with the whaling moratorium. Non-use measure might also be adopted in acknowledgment that the resource is (currently) unavailable for harvesting, as is the case under the CBS Convention where stocks of pollocks had collapsed.
4.4 (Restricted-)use and Non-use Measures
The term of ‘use measures’ is not common, but the concept in fact exists in parallel to that of non-use measures. Certain regimes’ default mode is to allow a use, whereas others forbid uses, except in certain specific cases. An example of the former would be the regulation of tourism in Antarctica: as a default, this activity is allowed, with a few restrictions put in place through specific non-use measures. An example of the latter would be dumping at sea under the London Protocol: such activity is overall forbidden, except if a substance is explicitly listed as authorised.
The relation between use and non-use measures is not of opposed concepts, but of a continuum, ranging from unregulated use, to restricted-use or limited-use measures (terms used interchangeably), and finally to non-use measures. Purely unregulated use seems to be vanishing when it comes to global
In certain cases, non-use measures have evolved from limited use, such as with the moratorium on commercial whaling which was adopted after decades of quota-setting. Another example is that of the regime regulating dumping, which started as a limited-use one, became increasingly restrictive with the amendments to the Annexes to the London Convention and then turned to non-use with the adoption of the London Protocol. The Montreal Protocol initially controlled the production and consumption of ozone depleting substances with limited-use measures, but these were progressively tightened and then became mostly non-use measures.
Finally, non-use measures are also regularly intertwined with restricted-use measures within a single instrument or as part of a larger regime. Visitor Site Guidelines under the Antarctic Treaty System, for example, generally prohibit certain activities or behaviours, and limit others.111 Most Protocols under the Convention on Long-Range Transboundary Air Pollution (CLRTAP)112 provide for restricted-use measures, but one of them, the 1998 Aarhus Protocol on persistent organic pollutants, contains both restricted and non-use measures.113
5 Rationales for and Objectives of Non-use Measures
Non-use measure can be developed and adopted for a variety of reasons, often underpinned by values assigned to nature (5.1) and they pursue objectives that range from preservation-focused to use-oriented (5.2). While some non-use
5.1 Rationale for Non-use Measures
there are similarities between intrinsic and non-use values in that both value nature irrespective of human use (eg existence value), but non-use value is distinguished in that the value is regarded as being to humans rather than regardless of human interests.115
Non-use measures can, in theory, relate to utilitarian, non-use or intrinsic values. Indeed, it depends on the specific objectives such measures are pursuing. However, the adoption of non-use measures is generally driven by anthropocentric rationales, whether a resource is to be conserved for utilitarian or non-use values. Non-use measures seem to mostly fall in the utilitarian category as they aim at conserving resources in light of what they (could) bring to humans. A few non-use measures might also be based on non-use values, especially when it comes to iconic elements of nature such as whales. Measures that are purely justified by intrinsic values, while possible, are yet to be adopted on the international scene.
5.2 Objectives of Non-use Measures
While arguably always based on anthropocentric values, some non-use measures pursue more preservation-oriented and others more use-oriented objectives (see Table 2.4). As is further discussed below, the three first aims listed in the table fall within the preservation-oriented category, while the last two are more use-oriented. It is difficult to classify ‘gather further information’ and ‘further develop control/enforcement scheme’ as these two aims can be means towards renewed use or strengthened conservation.
Objectives of non-use measures
| Objective of non-use measures | Example(s) |
|---|---|
| Conserve/preserve a given resource | IWC moratorium conserves/preserves species of whales
MPA s provide refugia to species under pressure from various stressors |
| Contribute to other conservation/preservation goal | Ban on oil mining would aim at mitigating climate change
Deep-seabed mining moratorium would aim at protecting marine living ecosystems |
| Conserve/preserve environment in the face of uncertainty | Ban on solar/marine geoengineering would avoid/avoids unforeseen consequences of technology on the environment |
| Gather further information | Abstention from fishing under CAOFA until more information on stocks is gathered
Proposed moratorium or precautionary pause on deep-seabed mining until more information on the ecosystem and impacts of mining is gathered |
| Further develop control/enforcement rules/general framework | Abstention from fishing under CAOFA until a range of institutional and management conditions are in place
Proposed moratorium or precautionary pause on deep-seabed mining until control scheme is in place IWC moratorium until proper inspection scheme (as originally argued) is in place |
| Enable another (exclusive) use of said space | Areas closed to tourism in Antarctica to enable scientific research
Safety zones on the Moon where other actors cannot undertake activities in order for mining to proceed safely |
| Enable use of said resource at a later date or elsewhere | Area or season closed to fishing because stocks need recovery or because of specific life-cycle characteristics |
In addition to these obviously consumptive aims, some non-use measures are providing a pause, either to establish a substantive or institutional framework for the adequate management of a resource, or to apply precaution in light of scientific uncertainty while more information is gathered. A clear example is the abstention of fishing under CAOFA, which was agreed upon as a temporary, precautionary pause until adequate scientific information has been gathered and until a regional fisheries management framework has been set up. Although pursuing environmental aims, these non-use measures still view nature under a utilitarian angle: resources are useful for humans, but these resources or related elements of the ecosystem would be at (inacceptable) risk if the activity was allowed to commence or continue under the current circumstances.
Finally, some non-use measures are more clearly conservation-focused, with no stated intention to start/resume use even if circumstances change. In that sense, they appear more akin to conserving a resource for itself. However, even these measures do not seem to extend to protecting a resource for its intrinsic value. Examples of such measures include the moratorium on commercial whaling, intended to ensure the continued existence of species of whales, and the establishment of an MPA within CCAMLR to provide a refugia for species in light of climate change. In both cases, the justifications for these non-use measures relate to ecosystem health, on which humans rely, or preservation of iconic megafauna, which are viewed by humans as valuable.
In some cases, preventative bans are called for or adopted because of uncertainty and because the risk of damage would be too serious if an activity proceeded. Marine and solar geoengineering are such cases. The London Convention/Protocol regime applies to the former,116 while many scientists call for a non-use agreement with regards to the latter.117 Interestingly, both of these activities intend to mitigate climate change, proving that non-use measures and environmental protection have a complicated set of interactions. On the one hand, marine and solar geoengineering could cause enormous damage to
5.3 Resource Targeted by Non-use Measures and Resource Protected
Some non-use measures aim at the conservation of the resource targeted by the non-use measure, whereas others restrict the use of one resource in order to contribute to other conservation goals or protect other values.
Examples of the first category abound, in particular for renewable natural resources. Non-use measures related to fishing, for example, can be adopted to ensure the long-term sustainable use of these renewable resources. They might be envisioned as a planned pause to enable the resources to recover from exploitation or to ensure that they are not targeted at key life-cycle stages. These non-use measures can also be temporary abstentions from an activity until certain gaps in a regime can be filled, such as with CAOFA.
In the second category are non-use measures that apply a prohibition of use towards one resource, while also or mainly aiming at protecting another resource or value. These non-use measures appear to be more frequently related to non-renewable natural resources as well as to spatial-extension resources. For example, the ban on mining in Antarctica aims at protecting the environment, not (solely) the mineral resources themselves, which are finite by nature. Safety zones on the Moon are intended to enable safe use, hence to protect the value of safety. The regime against ozone depletion, ultimately, is aimed at safeguarding human life and health from increased UV radiation.
6 Conclusion
Use is any activity that targets or otherwise impacts a resource. Non-use is to be understood as the absence of use of natural resources or spatial-extension resources. Non-use measures, in turn, are measures that ban or suspend the use of a resource. While they can co-exist with restricted-use measures, an actual prohibition of activity is required to be considered a non-use measure. As examined in this chapter, non-use measures are varied in legal nature, scope of participation, geographic applicability, duration, rationales, and objectives. The specificities of each non-use measure depend not only on the objectives pursued and the best way to attain them, but also on the geopolitical realities of what can be achieved and the existing legal frameworks into which non-use measures might be adopted.
Acknowledgments
The author would like to thank Catherine Blanchard, Erik Molenaar, Shani Friedman, Shira Giveon, and Jeroen Oomen for comments on earlier versions of this chapter. My gratitude also to all workshop contributors for inspiring discussions.
On Earth System Governance, see eg F. Biermann et al, “Earth system governance: a research framework” (2010) 10 International Environmental Agreements 277–298; S. Burch et al, “New directions in Earth System Governance Research” (2019) 1 Earth System Governance 100006.
On Earth System Law, see eg L. J. Kotzé and R. E. Kim, “Earth system law: The juridical dimension of earth system governance” (2019) 1 Earth System Governance 100003; L. J. Kotzé and R. E. Kim, “Exploring the Analytical, Normative and Transformative Dimensions of Earth System Law” (2020) 50(6) Environmental Policy and Law 457–470; L. J. Kotzé et al, “Earth system law: Exploring new frontiers in legal science” (2022) 11 Earth System Governance 100126; L. Mai and E. Boulot, “Harnessing the transformative potential of Earth System Law: from theory to practice” (2021) 7 Earth System Governance 100103.
On the rights of nature, see eg D. R. Boyd, The Rights of Nature – a Legal Revolution That Could Save the World (ECW Press 2017); S. Emmenegger and A. Tschentscher, “Taking Nature’s Rights Seriously: The Long Way to Biocentrism in Environmental Law” (1994) 6 Georgetown International Environmental Law Review 545–742; C. M. Kauffman and P. L. Martin, The Politics of Rights of Nature – Strategies for Building a More Sustainable Future (MIT Press 2021); C. D. Stone, “Should Trees Have Standing? Toward Legal Rights for Natural Objects” (1972) 45 Southern California Law Review 450–501; M. Tănăsescu, Understanding the Rights of Nature: A Critical Introduction (Transcript Verlag 2022).
On the complex interrelations between non-use measures and the rights of nature, see eg S. Guggisberg, “Rights of Nature and Non-use of Nature for Environmental Protection in Antarctica” 2024 14(2) The Polar Journal 446–474.
S. J. Buck, The Global Commons: An Introduction (Island Press 1998) 3.
ibid.
M. A. Janssen, “Governance of Common-Pool Resources” in J. F. Shogren (ed), Encyclopaedia of Energy, Natural Resource, and Environmental Economics. Volume 3 (Elsevier 2013) 38.
A. C. Tsikliras and R. Froese, “Maximum Sustainable Yield” in B. Fath (ed), Encyclopaedia of Ecology. Volume 2 (2nd ed, Elsevier 2019) 108.
S. Peña-Alzate and J. E. Cañón Barriga, “Approaching the concepts of ecosystems resilience and stability through spatiotemporal system dynamics and agent-based modelling” (2017) 84 Revista Facultad de Ingeniería Universidad de Antioquia 84–96, 85, and references therein.
See eg D. A. Duffus and P. Dearden, “Non-Consumptive Wildlife-Oriented Recreation: A Conceptual Framework” (1990) 53 Biological Conservation 213–231; M. H. Koch, A Comparison of the Perceived environmental impacts of consumptive and non-consumptive wildlife tourism, Master’s dissertation (North-West University 2021); C. Wilson and C. Tisdell, “Conservation and Economic Benefits of Wildlife-Based Marine Tourism: Sea Turtles and Whales as Case Studies” (2003) 8 Human Dimensions of Wildlife 49–58.
See eg J. E. S. Higham et al, “Managing Whale-Watching as a Non-Lethal Consumptive Activity” (2016) 24 Journal of Sustainable Tourism 73–90; Z. A. Meletis and L. M. Campbell, “Call It Consumption! Re-Conceptualizing Ecotourism as Consumption and Consumptive” (2007) 1(4) Geography Compass 850–870; B. Wilkes, “The Myth of the Non-Consumptive User” (1978) 36(2) Blue Jay 67–70.
See W. C. Burns, “The International Whaling Commission and the Regulation of the Consumptive and Non-Consumptive Uses of Small Cetaceans: The Critical Agenda for the 1990s” (1994–1995) 13(1) Wisconsin International Law Journal 105–144, who highlights at page 123 that “the term ‘non-consumptive’ utilisation in this context is often a clear misnomer”.
S. Burgin and N. Hardiman, “Effects of Non-Consumptive Wildlife-Oriented Tourism on Marine Species and Prospects for Their Sustainable Management” (2015) 151 Journal of Environmental Management 210–220.
R. Blanc et al, “Effects of Non-Consumptive Leisure Disturbance to Wildlife” (2006) 61 Revue d’Ecologie – La Terre et la Vie 117–133; see also Wilkes (n 11) 68.
R. H. Thurstan et al, “Are Marine Reserves and Non-Consumptive Activities Compatible? A Global Analysis of Marine Reserve Regulations” (2012) 36 Marine Policy 1096–1104.
B. C. O’Leary and C. M. Roberts, “Ecological Connectivity Across Ocean Depths: Implications for Protected Area Design” (2018) 15 Global Ecology and Conservation e00431; C. R. Smith et al, “Editorial: Biodiversity, Connectivity and Ecosystem Function Across the Clarion-Clipperton Zone: A Regional Synthesis for an Area Targeted for Nodule Mining” (2021) 8 Frontiers in Marine Science 797516; V. I. Stenvers et al, “Experimental Mining Plumes and Ocean Warming Trigger Stress in a Deep Pelagic Jellyfish” (2023) 14(1) Nature Communications 7352.
Deep Ocean Stewardship Initiative (DOSI), “Ecological Connectivity: Implications for Ocean Governance” (2020) Policy Brief, available at <https://www.dosi-project.org/wp-content/uploads/DOSI-Ecological-Connectivity-ISA-Submission.pdf> accessed 8 October 2024. Arguably, all systems on Earth (and potentially beyond) are in fact part of a single ecosystem.
See eg B. S. Halpern et al, “Spatial and Temporal Changes in Cumulative Human Impacts on the World’s Ocean” (2015) 6 Nature Communications 7615.
W. W. L. Cheung et al, “Large-Scale Redistribution of Maximum Fisheries Catch Potential in the Global Ocean Under Climate Change” (2010) 16(1) Global Change Biology 24–35; I. Nagelkerke et al, “Ocean Acidification Alters Fish Populations Indirectly Through Habitat Modification” (2016) 6 Nature Climate Change 89–93; A. L. Perry et al, “Climate Change and Distribution Shifts in Marine Fishes” (2005) 308 Science 1912–1915.
S. A. Murawski, “Ten Myths Concerning Ecosystem Approaches to Marine Resource Management” (2007) 31 Marine Policy 681–690. Note that the ecosystem approach goes beyond what is called the ecosystem approach to fisheries, which remains sector-specific (on this, see eg J. Morishita, “What is the Ecosystem Approach for Fisheries Management?” (2008) 32 Marine Policy 19–26).
Buck (n 5) 5–6.
ibid. The atmosphere is in part under national jurisdiction in that the airspace above States falls under their sovereignty. Nonetheless, in light of the constantly moving nature of air and the inability to impound it (as one could migratory fish when located in areas under national jurisdiction), it is generally considered a global common (see eg M. S. Soroos, The Endangered Atmosphere – Preserving a Global Commons (University of South Carolina Press 1997).
Buck (n 5) 5–6.
However, while virtually any State can accede to the Antarctic Treaty (and hence to the Environmental Protocol), only Consultative Parties have decision-making powers. In addition to the original Signatories, a Consultative Party is State that “demonstrates its interest in Antarctica by conducting substantial scientific research activity there”, with the final decision as to whether a State has met that threshold left to the existing group of Consultative Parties. See Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 402 UNTS 71, arts IX, XIII. On this, see eg E. J. Molenaar, “Participation in the Antarctic Treaty” (2021) 11(2) The Polar Journal 360–380.
On this see eg P. J. Beck, “Who Owns Antarctica?: Governing and Managing the Last Continent”, Boundary and Territory Briefing 1 (1994); K. J. Dobbs, “Sovereignty watch: claimant states, resources, and territory in contemporary Antarctica” (2011) 47 Polar Record 231–243; K. N. Scott, “Managing Sovereignty and Jurisdictional Disputes in the Antarctic: The Next Fifty Years” (2009) 20 Yearbook of International Environmental Law 3–40.
On the commons and global commons, see eg K. Bosselmann, Earth Governance – Trusteeship of the Global Commons (Edward Elgar 2015) chapters 3–4; Buck (n 5); S. Cogolati and J. Wouters (eds) The Commons and a New Global Governance (Edward Elgar 2018); G. Hardin, “The Tragedy of the Commons” (1968) 162 Science 1243–1248; B. Hudson et al (eds), Routledge Handbook of the Study of the Commons (Taylor & Francis 2019); E. Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (CUP 1990); S. Ranganathan, “Global Commons” (2016) 27 European Journal of International Law 693–718; C. Rendueles, The Commons – A Force in the Socio-Ecological Transition to Postcapitalism (Routledge 2023); N. Schrijver, “Managing the Global Commons: Common Good or Common Sink?” (2016) 37 Third World Quarterly 1252–1267; J. Vogler, The Global Commons: A Regime Analysis (Wiley & Sons 1995).
United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art 87.
ibid art 136.
United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107, preamble; Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) 3156 UNTS 79, preamble.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205, preamble.
Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 402 UNTS 71, preamble; Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol) (adopted 4 October 1991, entered into force 14 January 1998) 2941 UNTS 5778, preamble.
This reflection is revisited in the conclusion, on the basis of the contributions.
M. Chin, “Global Public Goods” (IMF Publications, December 2021), available at <https://www.imf.org/en/Publications/fandd/issues/2021/12/Global-Public-Goods-Chin-basics> accessed 8 October 2024.
Buck (n 5) 4–5. It is worth noting that conceptual and definitional ambiguity remains. For example, the term ‘common goods’ has been used to refer to common pool goods (Chin (n 33)) and the term ‘global common goods’ has been used to refer to non-excludable and non-rivalrous goods, including in that category goods as varied as human rights, Antarctica, or the ozone layer ((E. Harden-Wolfson and J. A. Quinteiro, “Public Goods, Common Goods and Global Common Goods: A Brief Explanation” (UNESCO IESALC, 2024), available at <https://www.iesalc.unesco.org/en/articles/public-goods-common-goods-and-global-common-goods-brief-explanation> accessed 27 April 2025.
Buck (n 5) 4–5.
J. E. Stiglitz, “The Theory of International Public Goods and the Architecture of International Organizations” (1995) Department for Economic and Social Information and Policy Analysis, United Nations.
D. Bodansky, “What’s in a Concept? Global Public Goods, International Law, and Legitimacy” (2012) 23 The European Journal of International Law 651–668, 653.
IMO, “Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization” (2008), paras 1, 8. The amendment to the London Protocol to provide a more comprehensive framework to marine geoengineering is not yet into force (IMO, “Resolution LP.4(8) (2013) on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and other Marine Geoengineering Activities” (2013)).
International Convention for the Regulation of Whaling (ICRW) (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72, art VIII(1).
J. V. Krutilla, “Conservation Reconsidered” (1967) 57(4) The American Economic Review 777–786.
T. O’Garra, “Bequest Values for Marine Resources: How Important for Indigenous Communities in Less-Developed Economies?” (2009) 44 Environmental Resource Economics 179–202, 179–180.
ibid 179.
J.-B. Marre et al, “Non-Market Use and Non-Use Values for Preserving Ecosystem Services Over Time: A Choice Experiment Application to Coral Reef Ecosystems in New Caledonia” (2015) 105 Ocean & Coastal Management 1–14.
K. M. A. Chan et al, “Cultural Services and Non-Use Values” in P. Kareiva et al (eds), Natural Capital: Theory and Practice of Mapping Ecosystem Services (OUP 2011) 206–228.
C. M. Raymond and J. O. Kenter, “Transcendental Values and the Valuation and Management of Ecosystem Services” (2016) 21 Ecosystem Services 241–257.
A. McVittie and D. Moran, “Valuing the Non-Use Benefits of Marine Conservation Zones: An Application to the UK Marine Bill” (2010) 70 Ecological Economics 413e424; D. H. L. Thomas, F. Ayache and G. Edwards Hollis, “Use and Non-use Values in the Conservation of Ichkeul National Park, Tunisia” (1991) 18(2) Environmental Conservation 119–130.
Y. Laurans et al, “Economic Valuation of Ecosystem Services from Coral Reefs in the South Pacific: Taking Stock of Recent Experience” (2013) 116 Journal of Environmental Management 135e144; Marre et al (n 43).
E. J. Molenaar, “Managing Biodiversity in Areas Beyond National Jurisdiction” (2007) 21 International Journal of Marine and Coastal Law 89–124, 108.
ibid.
ibid 109.
ibid 108–115.
ibid.
ibid 115.
Guggisberg (n 4).
H. Harden-Davies et al, “Rights of Nature: Perspectives for Global Ocean Stewardship” (2020) 122 Marine Policy, 104059, 3.
J. G. Laitos, The Right of Non-Use (OUP 2012); J. Laitos, “Rules of Law for Use and Non-Use of Nature” in C. Voigt (ed), Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (CUP 2013) 209–221.
Laitos (2013) (n 56) 218.
Harden-Davies et al (n 55) 2.
As presented in Harden-Davies et al (n 55); see eg United Nations General Assembly (UNGA) Res 73/235 (2018) GAOR 73rd Session Supp 49, 2; Universal Declaration of Rights of Mother Earth, World People’s Conference on the Climate Change and the Rights of Mother Earth (Cochabamba, Bolivia, 2010).
B. Leonard et al, “Allow ‘Non-use Rights’ to Conserve Natural Resources” (2021) 373 Insights 958–961. For a longer analysis, see B. Leonard and S. Regan “Legal and Institutional Barriers to Establishing Non-use Rights to Natural Resources” (2019) 59 Natural Resources Journal 135–179.
Leonard et al (n 60) 958.
ibid 959, 961.
Leonard and Regan (n 60) 162–163.
On the goals of Earth System Law, see eg R. E. Kim and L. Kotzé, “Planetary Boundaries at the Intersection of Earth System Law, Science and Governance: a State-of-the-Art Review” (2021) 30(1) Review of European, Comparative and International Environmental Law 3–15, 13–14.
H. van Asselt “Governing Fossil Fuel Production in the Age of Climate Disruption: Towards an International Law of ‘Leaving It In the Ground’” (2021) 9 Earth System Governance 100118 1–9.
ibid 5.
ibid 6.
ibid 6–7.
W. Yin, “Moratorium in International Law” (2012) 11 Chinese Journal of International Law 321–340.
See eg L. Cordonnery, A. D. Hemmings and L. Kriwoken, “Nexus and Imbroglio: CCAMLR, the Madrid Protocol and Designating Antarctic Marine Protected Areas in the Southern Ocean” (2015) 30 The International Journal of Marine and Coastal Law 727–764; W. Duan The International Legal Regime Relating to Marine Protected Areas in Areas Beyond National Jurisdiction (Brill Nijhoff 2022); S. M. Grant “The Applicability of International Conservation Instruments to the Establishment of Marine Protected Areas in Antarctica” (2005) 48 Ocean & Coastal Management 782–812; K. N. Scott, “Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas” in D. Freestone (ed), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Brill Nijhoff 2013) 175–183; D. Smith and J. Jabour “MPAs in ABNJ: Lessons from Two High Seas Regimes” (2018) 75 ICES Journal of Marine Science 417–425.
M. Fitzmaurice, Whaling and International Law (CUP 2015); C. S. G. Jeffries, Marine mammal conservation and the law of the sea (OUP 2016).
C. Redgwell, “Environmental Protection in Antarctica: The 1991 Protocol” (1994) 43 The International and Comparative Law Quarterly 599–634; D. R. Rothwell, “Polar Environmental Protection and International Law: The 1991 Antarctic Protocol” (2000) 11 European Journal of International Law 591–614.
P. Flamm and A. D. Hemmings, “Now and Never: Banning Hydrocarbon Extraction in Antarctica Forever” (2022) German Institute for Global and Area Studies (GIGA) – Leibniz-Institut für Globale und Regionale Studien.
J. F. Green and B. Rudyk, “Closing the High Seas to Fishing: A Club Approach” (2020) 115 Marine Policy 103855.
A. Jaeckel et al, “Deep seabed mining lacks social legitimacy” (2023) 2(1) npj Ocean Sustainability 1; K. A. Miller et al, “Challenging the Need for Deep Seabed Mining From the Perspective of Metal Demand, Biodiversity, Ecosystems Services, and Benefit Sharing” (2021) 8 Frontiers in Marine Science 706161; P. A. Singh, “The Invocation of the ‘Two-Year Rule’ at the International Seabed Authority: Legal Consequences and Implications” (2022) 37 The International Journal of Marine and Coastal Law 375–412.
Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA) (signed 3 October 2018, entered into force 25 June 2021) OJ 2019 L 73/3.
Environmental Protocol, art 7.
ICRW, Schedule adopted in 1982 with moratorium to start in 1985/86 season. The decision of the ICRW adopting the moratorium can be found at “Chairman’s report of the Thirty-Fourth Annual Meeting” (1983) 33 Report of the International Whaling Commission, 21 (agenda item 6).
Two MPAs have been, as of September 2024, adopted under CCAMLR: “Conservation Measure 91–03 (2009) Protection of the South Orkney Islands Southern Shelf” CM 91–03 (adopted at CCMLR-XXVIII, in force since 2009, Subarea 48); “Conservation Measure 91–05 (2016) Ross Sea region Marine Protected Area” CM 91–05 (adopted at CCAMLR-XXXV, in force since 2016, Subarea 88.1).
As of September 2024, there are 78 ASPAs, the full list of which can be found on the Antarctic Treaty Secretariat website.
US Department of State, “Artemis Accords”, available at <https://www.state.gov/artemis-accords/> accessed 8 October 2024.
See, Ministry of Foreign Affairs, “The Netherlands’ Polar Strategy 2021–2025” (2021) 44, available at <https://www.government.nl/documents/publications/2021/03/01/polar-strategy> accessed 8 October 2024.
See E.-L. Alvarez Ortega and S. Guggisberg, “Governance of Antarctic Tourism: From Private Actors to the Antarctic Treaty System, and Back”, in D. Ioannides, A. Varnajot and M. Vereda (eds), Polar Tourism and Communities: Experiences, Knowledge Building, Challenges and Opportunities (CABI 2025), 43–59.
ATCM, “Recommendations divided into Measures, Decisions and Resolutions” (1995) Decision 1.
Artemis Accords, para 10 of preamble, and section 13.2; R. Deplano, “The Artemis Accords: Evolution or Revolution in International Space Law” (2021) 70 International and Comparative Law Quarterly 799–819.
CAOFA, art 11.
Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3, art 16.
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (LDC) (adopted 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120, art XV; Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (LDP) (adopted 7 November 1996, entered into force 24 March 2006) 36 ILM 1, art 22.
Environmental Protocol, art 25.
London Convention, art XV; London Protocol, art 22.
IWC, “IWC Rules of Procedure and Financial Regulations” (2022) ICRW 68th meeting E.3(a).
Antarctic Treaty, art XII.
Antarctic Treaty, art IX(4); ATCM, Decision 1 (1995) (n 84).
Montreal Protocol, arts 15, 17.
As an international organisation created by UNCLOS, the ISA’s membership currently extends to 169 Parties.
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 5 December 1979, entered into force 11 July 1984) 1363 UNTS 3.
On this, see E. J. Molenaar, “Participation in Regional Fisheries Management Organizations” in R. Caddell and E. J. Molenaar (eds), Strengthening International Fisheries Law (Hart 2019) 103–129, 118–123.
C. Fernández de Casadevante Romani, “Objective Regime” in The Max Planck Encyclopaedia of Public International Law (OUP online 2023). On the potential of objective regimes, see R. A. Barnes, “Objective Regimes Revisited” (2000) 9 Asian Yearbook of International Law 97–145. Objective regimes, however, are not the only scenario of relevance. In specific situations, indeed, complex pacta tertiis issues might arise: for example, non-members of RFMOs that are parties to the UNFSA are nonetheless bound by that treaty’s obligation not to fish in the area where an RFMO exists and they are not member to it (United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA) (adopted 4 December 1995, entered into force 11 November 2001) 2167 UNTS 3, art 8).
ICRW, art I(2).
CAOFA, art 1(a).
See eg South Pacific Regional Fisheries Management Organisation (SPRFMO), “Conservation and Management Measure for Deepwater Species in the SPRFMO Convention Area” (2023) CMM 03a–2023 (Supersedes CMM 03a–2021).
ATCM, “Site Guidelines for Visitors” (2022) Resolution 2. The latest versions of the Site Guidelines for Visitors can be found on the Antarctic Treaty Secretariat website.
See eg ISA Council, “Decision of the Council of the International Seabed Authority Relating to the Review of the Environmental Management Plan for the Clarion-Clipperton Zone” (2021) ISBA/26/C/58.
LDC and LDP.
This measure will lapse after 30/35 years, except if consensus is reached to continue with the Ross Sea region MPA (CM 91–05 (n 79) paras 20 and 21).
Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (signed 16 June 1994, entered into force 8 December 1995) 34 ILM 67, Annex Part 1, para 3.
Environmental Protocol, art 25.
See eg as provided for under the Convention on Future Multilateral Cooperation in the Northeast Atlantic Fisheries (adopted 18 November 1980, entered into force 17 March 1982) 1285 UNTS 129, art 7(c).
UNCLOS, arts 116–119; UNFSA. Further rules are then adopted under RFMOs.
ISA, Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (15 November 2010) ISBA/16/A/12/REV.1; ISA, Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area (27 July 2012) ISBA/18/A/11 (Cobalt Regulations); ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (22 July 2013) ISBA/19/C/17 (Nodules Regulations).
ATCM, Resolution 2 (2022) (n 102).
Convention on Long-Range Transboundary Air Pollution (adopted 13 November 1979, entered into force 16 March 1983) 1302 UNTS 217.
Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants (adopted 24 June 1998, entered into force 23 October 2003) 2230 UNTS 79.
R. G. Pearson, “Reasons to Conserve Nature” (2016) 31 Trends in Ecology & Evolution 366–371, 367. See also G. M. Mace, “Whose Conservation?” (2014) 345 Science 1558–1560.
Pearson (n 114) 367.
On this see (n 38).
Solar Geoengineering Non-Use Agreement, “We call for an International Non-Use Agreement on Solar Geoengineering”, available at <https://www.solargeoeng.org/> accessed 8 October 2024.