Conclusions: Lessons Learnt and Pathways for Future Non-use Measures for Global Goods and Commons in International Law

Solène Guggisberg; Catherine Blanchard

Jump to Content

Chapter 20 Conclusions

Lessons Learnt and Pathways for Future Non-use Measures for Global Goods and Commons in International Law

In: Non-use Measures for Global Goods and Commons in International Law

Authors:

Solène Guggisberg

Solène Guggisberg
Search for other papers by Solène Guggisberg in
Current site
Google Scholar
PubMed

and

Catherine Blanchard

Catherine Blanchard
Search for other papers by Catherine Blanchard in
Current site
Google Scholar
PubMed

Type:: Chapter

Pages:: 475–515

DOI:: https://doi.org/10.1163/9789004730571_021

View license

Access via:

Dar Hadith al Hassania

Download PDF

1 Introduction

This edited volume examines a variety of existing non-use measures across regimes regulating global goods and commons, as well as a number of potential non-use measures that could be further developed and/or adopted. Notwithstanding our initial desire to clarify what exactly constitutes a non-use measure, the conditions under which such a measure is most likely to be adopted and then successfully implemented – and hence the future prospects of proposed non-use measures – it soon became clear that what unites non-use measures is their diversity. Once this humbling reality was acknowledged, we were nonetheless able to identify red threads that appeared across many chapters. The reflections that follow provide not only answers to many of the guiding cross-cutting questions originally circulated to the contributors to this edited volume (see Annex I to chapter 1), but also some considerations that might benefit from further research.

This chapter starts by highlighting some of the challenges encountered when applying the conceptual framework to specific non-use measures and other findings drawn from such exercise (section 2). Section 3 reflects on the unequal distribution of non-use measures across regimes that exist for global goods and commons, and on the potential influence of principles underpinning these regimes. Sections 4 and 5 build upon red threads identified across regimes, to analyse factors and conditions that contributed to the adoption and successful implementation of several non-use measures. Finally, section 6 turns to the future of non-use measures, by examining the proposed non-use measures that were discussed in this volume, presenting pathways for their development and adoption, and, more generally, reflecting on the potential – and limitations – of this type of measures.

2 Complexity of Concepts Relating to Non-use

2.1 Application of the Conceptual Framework’s Definitions

A fundamental question addressed in this volume is what is non-use and, inversely, what is use. While ‘use’ is here understood as “any activity that targets or otherwise impacts a resource”, ‘non-use’ is the absence of any such activity.¹ In turn, resources are to be understood as both natural resources and spatial-extension resources, the uses of which are, respectively, extractive and additive.²

At first glance, these definitions and concepts are clear. Nonetheless, once applied to specific cases, complexities quickly appeared, in the first place about the identification of, and relationships between, non-use measures, relevant resources, and impacts to be prevented. It was already acknowledged in the conceptual framework presented in chapter 2 that not all non-use measures aim at conserving the resource which is the object of the prohibition of use; other non-use measures instead target one resource to protect another. This was confirmed in several examined non-use measures, and is based on the fact that ecosystems are all, to some extent, interconnected; the resources that cannot be used because of a non-use measure are not the only ones that would be impacted by use.

A finding from the non-use measures analysed here is that the positive effects of a non-use measure on resources that are not targeted by it can range from fully intended to incidental. An example of a non-use measure prohibiting use of a specific resource to protect not only its ecosystem, but also to reduce impacts on other resources and ecosystems is the discussed moratorium on deep-seabed mining. Indeed, this non-use measure would prevent mining and, consequently, the impacts on minerals and seabed biodiversity, but it would also limit the impacts of mining on the marine environment of the water column; this would be fully in line with the International Seabed Authority’s (ISA) mandate both to protect and conserve “the natural resources of the Area” and to prevent “damage to flora and fauna of the marine environment”.³ In other cases, the positive impact of a non-use measure on another resource is more incidental: a closure of the high seas to fishing would be mainly adopted to reduce direct impacts on target and non-target species. However, it might also contribute to climate change mitigation by reducing greenhouse gases emissions and increasing carbon sequestration, which is first of all related to the atmosphere and hence not directly linked to the high seas.⁴

The non-use measures examined in this edited volume also demonstrate that the links between (non-)use, resources, and impacts can be even more intricate. Indeed, a non-use measure targeting one resource can have a negative impact on another resource: the whaling moratorium for example has enabled many species of whales to recover from overexploitation, but their increased numbers means that more krill and fish species are eaten, hence impacting those resources.⁵ In a similar vein, while non-use of the atmosphere or the marine environment for geoengineering would/does probably protect these – and some other – resources from harmful impacts,⁶ it would/does also preclude processes intended to reduce global warming. Consequently, prohibiting geoengineering would/does contribute to stronger and more damaging impacts of climate change on many resources and ecosystems.

Finally, most non-use measures are intended to avoid impacts on the resources whose use is prohibited. However, the case of the atmosphere is slightly different. Measures prohibiting the emission or dispersal of substances, including greenhouse gases, might avoid impacts to the atmosphere, but they are mainly focused on preventing impacts through the atmosphere.⁷ Indeed, while limits to atmospheric pollution and greenhouse gases emissions intend to protect the health of the atmosphere, the main objective relates to avoiding other impacts, such as global warming, ozone depletion, acid rain, ocean acidification, and the impacts of these processes on life on Earth.

In addition to these complex relationships between non-use, targeted resources, and impacts, the application of the conceptual framework to specific non-use measures for spatial-extension resources has led to some further critical considerations and, at times, adaptations. First, the focus chosen on use of resources might not be adequate when discussing a ban on solar geoengineering. While one could see this activity, if implemented at scale, as using the atmosphere or, eventually, outer space for the dispersion of materials into these areas, a more suitable focus would be on the idea of (non-)use of technology. Indeed, as the proposed technologies are diverse and could target different spatial-extension resources, dividing the analysis per spatial-extension resource is artificial. Moreover, the call for a Non-use Agreement for Solar Geoengineering applies not only to the actual use of the spatial-extension resources, but also – and even primarily – to the research into developing the requisite technology.⁸

A second reflection on the conceptual framework was presented in the discussion about Antarctic tourism. There, the authors questioned the adequacy of the term ‘additive’ for all uses of spatial-extension resources. While tourism into Antarctica could be considered ‘additive’ to the environment and potential cause damage to it, this qualification oversimplifies the interactions between the use and the resource. Indeed, tourism could also be seen as ‘reductive’, since it might decrease the original attractiveness of the area in question, or even ‘intrusive’ or ‘incursive’ as tourists enter areas that were previously without them.⁹

A third set of reflections – and need for adaptation – arose with respect to non-use measures and the atmosphere. In the ozone protection regime, non-use measures should, stricto sensu, relate to the prohibition of emissions or leaks of ozone depleting substances (ODS s) into the atmosphere. However, as the relevant regime addresses the production and consumption of such substances, this deviation from the conceptual framework was embraced. In the case of the climate change regime, restricted-use or non-use targets better reflect the reality of measures aiming at reducing the total sum of emissions minus re-absorption. Yet, restricted-use or non-use measures similar to those for the ozone protection regime and focused on production or consumption have been envisaged in relation to fossil fuel extraction.¹⁰

These observations demonstrate that, although it is useful for comparative and analytical purposes, there are also limitations to attempting to fit such variety of non-use measures and resources into a fixed framework.

2.2 Aims and Objectives of Non-use

Another aspect that became clear in the course of this research is how complex it can be to determine the aims of a (potential) non-use measure. In addition to the general and quite widespread objective of protecting the environment, some of its components or ecosystem functioning from established or potential risks of harm,¹¹ a non-use measure can (also) have other objectives. In some cases, non-use might be intended to ensure resource availability for the future, more often when the resource is renewable and needs replenishing,¹² but also for non-renewable resources by setting some resources aside for future generations.¹³ Some non-use measures are meant to safeguard an environmental baseline in the absence of a given human activity for scientific purposes,¹⁴ or to enable an altogether different use of the space.¹⁵ Other aims include the protection of values such as cultural heritage,¹⁶ human health and safety,¹⁷ equity,¹⁸ or the benefit of humankind more broadly.¹⁹

Moreover, more often than not, several aims coexist; a group of States that decide to adopt a non-use measure can be driven by different rationales – and even one State could be following a variety of objectives in such a decision. The call for a moratorium on deep-seabed mining, for example, might be mainly based on environmental concerns, including scientific uncertainty,²⁰ but economic factors might also be of relevance for those States that want the financial mechanism for redistribution of benefits created first or are worried about the impacts of deep-seabed mining on their land-based mining industry.²¹

The stated objective might also hide considerations that were fundamental to the adoption of a non-use measure but that are not explicit in the relevant instrument. The prohibition of mining in Antarctica, for example, was adopted for seemingly pure environmental reasons. In reality, other geopolitical factors came into play, in particular the perceived competition from the United Nations General Assembly (UNGA) which wanted to bring the governance of Antarctica into the folds of the United Nations.²²

Finally, objectives might evolve through time. For example, the adoption of the whaling moratorium was made possible by a majority of International Whaling Commission (IWC) Members sharing an agreement to temporarily suspend this extractive activity. The original arguments were mostly centred around the needs to enable recovery of stocks, especially in light of scientific uncertainty, and to give time for States to adopt a proper inspection scheme, so that any resumed commercial whaling could be sustainable.²³ Some Members might already then have considered that whales should not be hunted at all, even if stocks were to recover, but this preservationist view is now the dominant one amongst IWC Members.²⁴

2.3 Scientific Research and Ultimate Purpose of Use

Across most examined regimes, and as already noted in the conceptual framework discussed in chapter 2, using a resource for scientific research is treated differently from other uses. In some cases, scientific research involves the extraction of limited quantities of a resource or the addition of limited quantities of a substance into a resource, with negligible impacts on the resource and its ecosystem. If one focuses on the definitions in this book, extraction or addition for research can be seen as use, notwithstanding the quantities involved.²⁵ However, it is also possible to see research as a totally separate concept (one warranting regulation nonetheless) in light of how limited the extraction of or addition into the resources would be.²⁶ In many cases, scientific research is considered as an exception to non-use measures, such as for example in relation to iron fertilisation and the dumping regime²⁷ or fishing in the marine protected areas (MPAs) of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR).²⁸ In the Antarctic Treaty System (ATS), scientific research is oftentimes the reason for some sectoral non-use measures restricting other activities, such as entry by non-governmental actors into Antarctic Specially Protected Areas (ASPAs).²⁹

One can debate whether, and under which conditions, the fact that a resource is used for scientific research should warrant a different regulatory treatment. On the one hand, scientific research is usually aimed at ‘greater good objectives’ and might be necessary to fill in the data and knowledge gaps that have triggered the need for non-use measures. On the other hand, abuses of scientific research exceptions have been known to happen, such as with the problematic Japanese scientific whaling program³⁰ or the questionable mining research by Russia in the Antarctic.³¹

An additional and related consideration contemplates, more generally, whether the ultimate objective of use should have an effect on the decision to allow, or not, the use of a resource: should an activity extracting a resource in order to create renewable energy or to enable space exploration be treated in the same manner as a similar activity leading to consumption?³² Are higher environmental purposes, such as addressing climate change, reason enough not to implement non-use measures related to marine or solar geoengineering activities?³³ No clear-cut answer is available, and these questions demand further reflection.

2.4 Restricted-use and Non-use Measures

As presented in chapter 2, use and non-use measures exist on a continuum – and sometimes coexist. For the purpose of this research, the definition of non-use measures has been agreed to be “measures adopted on the international scene that ban or suspend the use of a resource”.³⁴ In practice, making the distinction between non-use measures and restricted-use measures presents some challenges.

Indeed, many non-use measures have exceptions which constitute restricted-use measures. CCAMLR MPAs, for example, have been described as a combination of several non-use/restricted-use measures brought together in a larger management framework.³⁵ In the Ross Sea region MPA, scientific and exploratory fishing are indeed permitted in certain zones.³⁶ These types of fishing are then subject to other CCAMLR conservation measures. Scientific research exceptions that allow an extractive activity to proceed can also be found with respect to whaling and Antarctic mineral activities,³⁷ while the Central Arctic Ocean Fisheries Agreement (CAOFA) allows exploratory fishing.³⁸ Other instances of exceptions to non-use are in situations of emergency.³⁹ If the non-use measure so provides, restricted-use can also be allowed when permits are issued by national authorities, as in the case of ASPAs.⁴⁰ Finally, the London Protocol regime is based on a comprehensive non-use measure, except for those substances that are explicitly allowed to be dumped, and the ozone protection regime prohibits the production or consumption of banned ODSs except for tightly defined ‘critical’ or ‘essential’ uses.⁴¹ Depending on how wide-ranging the exceptions are, a non-use measure in place might only narrowly limit use.⁴²

Nonetheless, even if a non-use measure is limited by many exceptions, the default situation remains one of non-use as long as an activity is not explicitly allowed, in contrast with a situation of use where an activity is allowed, even under strict conditions. An example of the use/non-use default distinction can be found in the deep-seabed mining regime: within Areas of Particular Environmental Interest (APEIs), mining is not allowed (default of non-use) whereas, outside of them, mining might be allowed under certain circumstances (default of use).⁴³ Similarly, entry into ASPAs is not permitted in general, except if certain conditions are actively met (default of non-use), whereas entry in most other places in Antarctica is allowed, even if it is subject to strict behavioural conditions (default of use).⁴⁴

A more complex situation is that of CAOFA as one can question which is the default situation and which is the exception. At first glance, it is a clear non-use default for parties to that Agreement, since fishing is suspended there, even if exceptions are provided for.⁴⁵ CAOFA parties have indeed voluntarily constrained their freedom of fishing. Nonetheless, this Agreement could also be perceived as an exception to the wider – and still relevant – regime applicable to the high seas under the United Nations Convention on the Law of the Sea (UNCLOS), which provides for the freedom to fish in the high seas, notwithstanding any conditions that must be met.

These reflections are conceptual, but they become relevant in the potential future evolution of a regime. Indeed, the default situation provides inertia in its favour, and any change to such default situation depends on the adoption of further measures, the ease of which depends, in turn, on the decision-making procedures in place. For example, the continued existence of the whaling moratorium has been the subject of debate and criticism by a number of States. While a simple majority has voted to end it for minke whales, the threshold to change the Schedule is a three-quarter majority of IWC Members, meaning that, for the time being, all quotas remain at zero.⁴⁶ Conversely, and with a high threshold since consensus applies in this regime, until and unless all Antarctic Treaty Consultative Parties agree to prohibit tourism except in certain specific areas of Antarctica – as was planned when Areas of Special Tourist Interest (ASTIs) were first developed – all locations, bar those that are explicitly closed-off, remain theoretically open to visitors.⁴⁷

3 Influence on Non-use Measures of Principles Underpinning Global Goods and Commons Regimes

3.1 Varied and Unequally Distributed Non-use Measures

As already presented in depth in the conceptual framework⁴⁸ and further confirmed in the overview of non-use measures’ characteristics (Table 20.1), it is clear that the non-use measures for global goods and commons studied in this volume are extremely varied. United in their diversity, they are also unequally distributed amongst regimes. Most existing (and even proposed) non-use measures are indeed related to the high seas and the deep seabed, a few notable ones pertain to Antarctica and the atmosphere, but no non-use measure exists, at present, in relation to outer space. Beyond obvious considerations of accessibility (distance- and technology-wise), one might wonder whether specific characteristics of the regimes for global goods and commons, in particular their underpinning principles, determine the direction of a regime towards use or non-use.⁴⁹

TABLE 20.1

Overview of the characteristics of the non-use measures analysed in the present volume^a

Common Non-use measure(s)	Resource(s) targeted by non-use measure	Aim(s) of non-use measure	Instrument(s) / Nature of instrument(s)	Geographic applicability	Timing of non-use measure
High seas
*Whaling moratorium* (also Sanctuaries - with similar characteristics except local geographical applicability)	Whales	Initially ensure replenishment of whale populations and the orderly development of the whaling industry; over time, conserve/preserve whales	Schedule to the ICRW / Legally-binding	Global, including areas within national jurisdiction	Adopted after activity had started
*Abstention from fishing under* CAOFA	Fish	Avoid unregulated fishing; ensure certain conditions are met before start of exploratory and commercial fishing	CAOFA / Legally-binding	High seas portion of the central Arctic Ocean	Adopted before activity starts
*Prohibition of fishing specific species or fishing in certain areas under regional fisheries management organisations (*RFMO s)	Fish	Ensure precaution in light of scientific uncertainty; support sustainability and productivity; protect habitat, ecosystem, and/or biodiversity	Conservation and management measures (CMM s) of RFMO s / Legally-binding	Local as specified in the relevant CMM	Adopted after activity had started
*Central Bering Sea* (CBS) *zero quota*	Fish	Ensure the replenishment of fish population	CBS / Legally-binding	High seas area of the Bering Sea	Adopted after activity had started
*Prohibition of dumping at sea, including marine geoengineering*	Ocean space	Prevent pollution of the marine environment; protect public health and amenities	London Convention and London Protocol / Legally-binding	Global, including areas within national jurisdiction	Adopted after activity had started (except for marine geoengineering)
*Closure of the high seas to fishing	Fish	Ensure precaution in light of scientific uncertainty; sustainability; productivity reasons; protect climate, habitat, ecosystem, biodiversity, and/or human rights; and contribute to equity	No instrument at present	Global high seas	Would be adopted after activity has started
Deep seabed
*Non-mining measures under Regional Environmental Management Plans (*REMP s)	Minerals	Protect deep-sea environments from the effects of mining activities	REMP s of ISA / Unclear	Local as specified in the REMP s	Adopted before activity (exploitation stage) starts
*Deep-seabed mining moratorium	Minerals	Ensure precaution in light of scientific uncertainty; conserve the environment; protect culture; contribute to inter- and intra-generational equity	No instrument at present	Global	Would ideally be adopted before activity starts
Antarctica
*Prohibition of fishing and fishing-related activities in CCAMLR MPA s*	Fish and krill	Ensure long-term conservation and sustainable management of Antarctic marine ecosystems while supporting scientific research. Specific objectives depending on MPA	Conservation measures (CM s) / Legally-binding	Local as specified in each CM	Depends on the MPA planning region; usually adopted after activity had started
*Mining moratorium in Antarctica*	Minerals	Protect the Antarctic environment and dependent and associated ecosystems	Environmental Protocol / Legally-binding	Area south of 60° South Latitude	Adopted before activity starts
*Spatial and activity/behaviour non-use measures related to Antarctic tourism*	Antarctica space	Protect the environment, historic sites, science, wilderness, human life and safety	Environmental Protocol and Annexes, Measures / Legally-binding; Resolutions / Non legally-binding	Area south of 60° South Latitude	Some adopted before activity starts, some after it had started
*Prohibition of tourism in Antarctica	Antarctica space	Protect the environment, historic sites, science, wilderness, human life and safety	No instrument at present	Area south of 60° South Latitude	Would be adopted after activity has started
Atmosphere
*Prohibition of production and consumption of ODS s*	Atmosphere space	Protect the ozone layer; avoid adverse effects on human health and the environment	Montreal Protocol to Vienna Convention / Legally-binding	Global	Adopted after activity had started
*Prohibition of discharges into the atmosphere for solar geoengineering purposes (and prohibition of research)	Atmosphere space (technology)	Prevent implementation of technology without governance framework and at least until risks are better studied; avoid normalisation of technology and constituency-building	No instrument at present (beyond the Open Letter signed by academics)	Global	Would ideally be adopted before activity starts
Outer space
*No entry into heritage zones in outer space	Outer space space	Safeguard cultural heritage	Mentioned in Artemis Accords and Building Blocks / Non legally-binding	Local	Would ideally be adopted by States before activity starts
*Non-use of outer space resources except for scientific research	Water and minerals	Protect the Earth’s environment	No instrument at present	Global	Would ideally be adopted before activity starts

^aThis overview only includes non-use measures and hence does not present discussed measures that do not qualify as such. Consequently, OSPAR MPA s (Klerk in chapter 4) and safety zones on the Moon (Martin in chapter 19) do not appear in the table.

NB: Non-use measures preceded by * are discussed but not yet in existence within international legal frameworks.

While this question would benefit from further theoretical and empirical research, the findings of this edited volume indicate that the existence or absence of non-use measures, while certainly influenced by the principles underpinning a regime, is not predetermined by them. Indeed, the reality is complex, due in part to the multi-faceted nature of principles such as the common heritage of mankind, which contains considerations of ecological protection as well as inter- and intra- generational equity.⁵⁰ Moreover, prima facie divergent rights and obligations interact within a single regime, such as the freedom of fishing on the high seas and the obligation to protect the marine environment. And, more generally, regimes evolve in ways that cannot always be predicted. All in all, a variety of factors determines a regime’s relationship with non-use.

3.2 Prima Facie Pro-use Regimes

On the basis of the centrality of the freedom of fishing, the high seas might appear fundamentally open to marine living resources’ use. However, this regime is also the one with most non-use measures, ranging from no-take zones within MPAs,⁵¹ to fisheries management seasons or area closures,⁵² to the abstention from fishing in the high seas portion of the central Arctic Ocean.⁵³ This existence not only of measures regulating use but also of several non-use measures reflects the tensions between the freedoms of the high seas and environmental obligations. Regime evolution has seen a progressive tightening of these freedoms, but this has not been without push back, such as witnessed in CCAMLR.⁵⁴ A full closure of the high seas to fishing remains extremely controversial – and unlikely to be adopted.⁵⁵

Outer space is regulated by a regime explicitly focused on use, prohibiting appropriation and requiring free access. At present, this regime does not contain non-use measures and the regime’s features might hinder the development of wide-ranging non-use measures.⁵⁶ Had the Moon Agreement become the relevant legal framework for activities on that spatial body, with its references to the common heritage of humankind and environmental protection, the adoption of non-use measures might have been simpler.⁵⁷ However, even within the framework of the Outer Space Treaty, it might be possible to craft acceptable non-use measures, and it might even be necessary to do so in light of due regard obligations and the fact that the use of outer space should benefit all people.⁵⁸

3.3 Common Heritage of Humankind and Common Concern

The Area, in turn, is based on the common heritage of humankind principle. With all States having a recognised legitimate interest in this global common, the range of views as to whether to use or not to use is certain to be diverse. The regional non-use measures in place, which are quite ambitious but give priority to contract areas, might be reflective of this tension.⁵⁹ The larger discussion about a moratorium, while heavily informed by environmental considerations, might also stall because one central tenet of the common heritage of humankind principle, benefit sharing, generally relies on use.⁶⁰

The legal regimes relevant to the atmosphere are diverse and independent. The common concern of humankind, expressed in the climate change regime, could be just as relevant to the ozone protection regime. However, this latter, older regime makes no reference to an overarching concern; yet, it is the ozone protection regime which implements non-use measures and is most successful in addressing a global threat to the atmosphere with impacts on humankind as a whole.⁶¹

3.4 Sui Generis Regime

Antarctica is a sui generis regime. Managed like a global common, it is nonetheless strongly shaped by the existence of sovereign claims. While they have been frozen and no State can make new claims, the legal status of Antarctica has not been resolved. This reality does not necessarily influence general views on use and non-use in Antarctica, but it has certainly contributed to non-use measures’ existence or absence.

The Convention on the Regulation of Antarctic Mineral Resources Activities (CRAMRA) failed, in part, because mining in Antarctica was perceived by claimant States as potentially watering down their claims – and the end of CRAMRA quite directly led to the mining moratorium. Hence, in that case, the tensions due to how a mining regime would impact territorial claims were eased by a decision simply not to use the resource. The fear to see Antarctica managed by the UNGA instead of a smaller (select) club of States, and what that would imply for territorial claims, was also a game-changer.⁶²

In contrast, CCAMLR MPAs are opposed, again in part, because some States view these spatial measures as an attempt to strengthen one’s territorial claims. Notwithstanding the questionable nature of this criticism, it is true that MPA proposals have so far always been put forward with the involvement of the relevant claimant State.⁶³ Hence, instead of acting in the interest of humankind, many States’ decisions in the ATS appear driven by their interests into specific areas and geopolitical considerations.

4 Factors that Contribute to the Successful Adoption of Non-use Measures

The cases examined in this book demonstrate that non-use measures were successfully adopted when a variety of factors met, with no two scenarios the same. Hence, there is no fixed set of conditions that would automatically lead a regime to embrace and adopt non-use measures. Nonetheless, a certain number of factors can be identified as relevant to the likelihood of non-use measures’ adoption. Many of these factors are not unique to non-use measures, in that they might also play important roles in the adoption of restricted-use measures.

4.1 Characteristics of Non-use Measures

Some non-use measures’ own characteristics, be they for example temporal or location-related, appear to have contributed to non-use measures’ acceptability to the States that had the right to vote in their favour or against them.

Measures developed and adopted before the activity they intend to prohibit has started are more likely to gather support, probably as interest groups are less clearly defined and industry actors have not yet invested as many resources in the activity. Such non-use measures were adopted for high seas fishing in CAOFA⁶⁴ and for mining in Antarctica,⁶⁵ and are under discussion in relation to deep-seabed mining.⁶⁶ Non-use measures that prohibit an activity already in place are rarer, though not unheard of, as the example of the ‘no-regret’ Antarctic tourism measures adopted in 2023 demonstrates.⁶⁷

More generally though, when a non-use measure is adopted in relation to existing activities, one of three situations can be witnessed. First, it might be that the activity in question no longer has socio-economic significance, as was the case with whaling⁶⁸ or with the CBS moratorium.⁶⁹ Second, non-use measures might be designed in such a way that they carve out existing activities – this can be seen in the development of CCAMLR MPAs which exclude existing or even future fishing grounds⁷⁰ and of the REMP for the Clarion-Clipperton Zone, which positions non-mining zones outside of contract areas.⁷¹ Third, other non-use measures targeting existing activities have started as restricted-use measures and have later been progressively tightened, until the default situation of use was reversed: for instance, the production and consumption of ODSs was progressively restricted under the Montreal Protocol, until full phase-outs were implemented.⁷² Moreover, oftentimes but not always, a grace-period is provided for the industry to adapt,⁷³ but there are also cases where the non-use measure is intended to start without delay.⁷⁴

The design and particulars of the non-use measures’ material scopes are often developed and agreed through negotiations in order to take a variety of interests into account. As a result of compromises, the non-use measure that is finally adopted often includes more exceptions and has a narrower scope than the original proposal. The Ross Sea region MPA proposal, for example, which already provided for a special research zone, saw the addition of a Krill Research Zone and was considerably reduced in size during negotiations.⁷⁵ When it comes to Antarctic tourism, proposals for non-use measures are also often watered down, for instance in the case of the proposals on permanent infrastructure and helicopters.⁷⁶ Whether reaching agreement is worth these concessions is a long-standing question in negotiations.

Finally, other characteristics that have contributed to States signing on to non-use measures are provisions enabling the automatic or simple termination of the measure. Limits on the duration of non-use measures, in particular, are quite important to some States; the commercial fishing abstention in CAOFA⁷⁷ and the Ross Sea region MPA⁷⁸ are both time-bound and last in principle for 16 and 30/35 years, respectively. At that point in time, the former will be automatically extended unless one CAOFA Party objects, and the latter will only be extended if CCAMLR Members agree to do so by consensus. The Antarctic mining moratorium does not have an end date, but an amendment procedure will become available as of 2048⁷⁹ – although the procedural requirements are so strict that it is unlikely they will ever be met. In certain cases, conditions are provided that would allow the activity to be (re)started, independently of any fixed timeframe. For example, CAOFA provides that commercial fishing can commence if the Conference of the Parties determines that certain conditions are met.⁸⁰ As to the CBS Convention, its zero annual harvest level will come to an end when the pollock biomass exceeds a specified minimum.⁸¹

4.2 Procedural Factors

Another noteworthy set of factors is related to procedural matters, which either make the adoption of non-use measures more likely or, conversely, impairs it. First, the relative openness of a regime to new members, including potential criteria to accede to the relevant treaty, may impact the nature of decision-makers and, consequently, the decisions made. For example, in a regime such as the IWC that does not require involvement in whaling or any other substantive condition for membership, pro-conservation States could easily join and reverse the earlier pro-whaling majority.⁸² The situation is different if a State has to prove a ‘relevant interest’ in fishing in order to join an RFMO; non-use oriented States might not be able to meet that requirement, and existing members might well do all they can to keep such States out of the regime.⁸³ It is also true that openness can be used both ways, as has been witnessed in CCAMLR, where the increasing number of fishing States has led to a polarisation of views as to the main objective of the regime.⁸⁴ Non-fishing or non-whaling States could be described as non-user States; this category of States can be expected to promote non-use, and their ability to join a regime is hence likely to impact its evolution. Further research ought to be pursued to determine whether this hypothesis is valid – or whether other characteristics correlate more closely with States favouring non-use.

Another crucial factor relates to the rules and procedures on decision-making. If decision-making is based on consensus, a single State can block the adoption of a proposal, which is what is happening with MPAs under CCAMLR, with both China and Russia opposing proposals.⁸⁵ In reverse, (qualified) majority decision-making can enable the swifter adoption – but also reversal – of a non-use measure since it is possible to ‘by-pass’ a few opponents. The Montreal Protocol, for example, has been amended and adjusted by two-third majority decisions to set progressively stricter limits to production and consumption of ODSs and to add new substances to be phased-out. The whaling moratorium was also adopted by a vote, requiring a three-fourth majority. However, one can wonder whether overriding States that are strongly opposed to a measure is entirely positive, because they might simply leave the regime, as Japan recently did with regard to the IWC.⁸⁶ Imposing a non-use measure on reluctant States might also trigger issues of compliance and create tensions in the regime.⁸⁷

For non-use measures found in instruments that require entry into force, an additional hurdle might be met at the domestic ratification process. As seen when it comes to the regulation of Antarctic tourism, these domestic procedures have contributed to delaying or maybe even blocking the entry into force of two Measures of the Antarctic Treaty Consultative Meeting (ATCM).⁸⁸ In that situation, States might prefer to rely on non-use measures that are not legally binding, as they can consequently avoid having to go through domestic ratification procedures. Another characteristic that avoids the pitfalls of domestic ratification procedures is tacit amendment. According to this type of procedure, found for example in the dumping regime,⁸⁹ the measure, usually an amendment, comes into force after a given time, except for those States that have explicitly objected.

Finally, it seems that an explicit provision that a regime can adopt non-use measures is not necessary. As seen in the case of RFMOs, CCAMLR, or the IWC, certain non-use measures were ultimately adopted without being explicitly envisaged by the founding instruments.⁹⁰ Nonetheless, having such a basis to refer to could avoid some tensions as to the actual mandate of a regime, an argument regularly used by opponents of non-use measures.⁹¹

4.3 External Factors

More often than not, the successful adoption of non-use measures has depended on the political motives of some key players. In particular, an aspect of note in several cases is the presence of at least one powerful State triggering the development of a non-use measure, or at the very least contributing to it. For example, the United States of America (USA) bolstered the proposed whaling moratorium with many pieces of domestic legislation that applied sanctions to States that continued whaling, and it also threw an aggressive campaign to recruit non-whaling States to join the International Convention for the Regulation of Whaling (ICRW).⁹² Its leadership was also central to the negotiations and adoption of the Montreal Protocol.⁹³ The USA was likewise probably the main instigator of CAOFA’s development in that, after it had taken domestic action, it initiated international discussions to ensure that similar international action followed.⁹⁴ Another such example is the role of both the European Union and the USA as proponents of several CCAMLR MPAs.⁹⁵ The willingness of these major players to use diplomatic, political and/or economic power to see non-use measures adopted is indeed crucial. The reasons why these States act in favour of a non-use measure of course vary, including environmental concerns, desire to protect or promote one’s economic interests (be they related to fisheries, land-based mining operations or other industries),⁹⁶ wish for a personal legacy,⁹⁷ and/or response to civil society pressure.⁹⁸

There are also interesting factors that may lead States other than the original promoters of non-use measures to accept them even when, at first glance, the non-use measures are not to their advantage. Non-Arctic States, for instance, in part signed on to the abstention from fishing in the high seas portion of the central Arctic Ocean because it allowed them to strengthen their position in Arctic governance.⁹⁹ Another example relates to Russia finally consenting to the Ross Sea region MPA in part because Vladimir Putin had announced a Year of Ecology and hence wanted a positive track-record in environmental matters.¹⁰⁰ Finally, some regimes rely on carrot and stick approaches to encourage reluctant States to join and/or agree to non-use measures. The ozone protection regime, for example, provides on the one hand trade restrictions in ODSs for non-parties and financial support to help parties implement their obligations.¹⁰¹

Another key factor that can contribute to the development and adoption of non-use measures is pressure from other international fora. A prime example thereof is the moratorium on Antarctic mining, which was adopted in no small part as a response to the legitimacy crisis that was plaguing the ATS at the time. Indeed, non-aligned States, dissatisfied with the perception that only rich States would benefit from mining in Antarctica, brought the ‘Question of Antarctica’ to the UNGA. By asking to move the governance of Antarctica under the auspices of the United Nations, they fundamentally questioned the role of the ATS. The Environmental Protocol, with the mining moratorium as a key provision, was developed and adopted as a way to reassert the legitimacy of the ATS.¹⁰² The whaling moratorium is another instance where outside pressure was important: it was successfully adopted after the United Nations Conference on the Human Environment passed a resolution calling for a ten-year moratorium on whaling and the Convention on International Trade in Endangered Species of Wild Fauna and Flora listed whales on its Appendices, thus restricting international trade in the relevant species.¹⁰³ In an even more direct case of outside influence, the adoption of non-use measures by RFMOs to protect vulnerable marine ecosystems was largely triggered by the UNGA’s continuous calls for adequate measures in that respect,¹⁰⁴ and maybe by the prospect that the UNGA could adopt measures itself, following the precedent on large-scale pelagic driftnets.¹⁰⁵

Finally, in certain cases, the movement towards the development of non-use measures, or the pressure to adopt them, is non-governmental and usually due to environmental concerns. The role of environmental non-governmental organisations (NGOs) has been crucial in raising awareness around the environmental risks linked to certain activities, such as whaling, mining in the deep seabed and in Antarctica, and fishing in the central Arctic Ocean.¹⁰⁶ Civil society has been known to apply pressure not only on the international scene but also domestically, sometimes in response to high intensity events (such as maritime disasters and the pollution they cause), leading for example Australia and France to reject CRAMRA and thus opening the way to the Environmental Protocol and the Antarctic mining moratorium.¹⁰⁷ In other cases, it is academics and scientists who are the driving force behind non-use measures, as best illustrated by the deep-seabed mining REMPs, which have been first developed through processes consisting almost entirely of environmental scientists.¹⁰⁸ The calls for a closure of the high seas to fishing and for a Non-use Agreement for Solar Geoengineering have both started as academic initiatives.¹⁰⁹ While the path forward for such non-governmental proposals is not always obvious in an international law system led by States, it is noteworthy that all proposals for OSPAR MPAs in the high seas have, so far, been made by NGOs.¹¹⁰

4.4 Role of Science

Scientific data and knowledge are crucial to the development and adoption of non-use measures. Indeed, they inform not only why a non-use measure might be needed, but also its particular design – as in the case of ISA REMPs or specific zones of CCAMLR MPAs.¹¹¹ A proposal backed-up by science demonstrating the impacts of an activity on biodiversity or other risks involved has probably more potential to convince States.

However, scientific information is not always followed by decision-makers. For example, risks to the marine environment of mining hydrothermal vents with polymetallic sulphides are well-known, and yet this has not been sufficient for States to adopt a moratorium or even spatially delimited non-mining areas within a REMP.¹¹² At the IWC, scientific information supports the argument that harvesting of minke whales could be resumed, but a significant number of States refuses to act on the basis of this evidence.¹¹³ Some non-use measures might even, from the start, not be based on science; the prohibition of dumping a former oil platform was, apparently, a response to an NGO campaign, rather than needed to address potential or actual risks to the marine environment.¹¹⁴

In certain cases, sufficient scientific information is simply not available. In those circumstances, a regime’s relationship with precaution often informs what path is taken. Indeed, if it is the relevant standard, non-use measures might – or ought to – be adopted. When a risk of negative impacts is perceived (to degrees that differ in each regime), such activity should indeed not be allowed to proceed, even if there is no sufficient evidence to demonstrate the impacts – and non-use should thus reign. In an early application of the precautionary approach, States started developing the ozone protection regime while science was still uncertain over the processes at stake and the risks of harm.¹¹⁵ Scientific knowledge then improved and informed the adoption of progressively more restrictive measures. The dumping regime under the London Protocol clearly endorses the precautionary approach, in the sense that non-use applies “when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects”.¹¹⁶ In a more recent application of precaution, the significant lack of scientific knowledge of the marine ecosystems of the central Arctic Ocean and how they would react to climate change and fishing pressure was a major driver behind the development of CAOFA.¹¹⁷

Nonetheless, States do not always adopt measures on the basis of the precautionary approach, even when the regime calls for it. For example, the absence of sufficient information about abyssal plains and polymetallic nodules to even undertake environmental impact assessments should trigger non-use measures, especially in light of the potentially very serious consequences for the environment, but such measures have not (yet) been adopted by the ISA.¹¹⁸ Also, while the enormous data and knowledge gaps about high seas living resources strongly argue in favour of closing the high seas to fishing, this proposal is generally considered a radical and unnecessary measure.¹¹⁹

In some cases, States even act in active defiance of the precautionary approach as do China and Russia within CCAMLR when it comes to MPAs. While the relevant ecosystems should be protected because several possible threats have been identified and the ecosystems are not fully understood, China and Russia nevertheless insist on the clear identification of threats to secure protection.¹²⁰ MPA proposals already include what has been certified by the Scientific Committee to be ‘best available scientific data’, but the opponents argue for a higher threshold, in contravention to the Convention on the Conservation of Antarctic Marine Living Resources itself.¹²¹ In some sense, this CCAMLR debate recalls the discussion at the IWC in the lead to the adoption of the moratorium – except that applying the precautionary approach was not required by the ICRW. Indeed, while several States had argued that the lack of scientific certainty meant that whales could not be protected under the existing management measures, and hence called for precautionary action, other States contended that the same lack of scientific knowledge should prompt the rejection of the moratorium.¹²²

5 Factors that Contribute to Successful Implementation/Effectiveness of Non-use Measures

On the basis of this edited volume’s chapters, we have identified some factors that are more likely to enable non-use measures to achieve their objectives. Most of these factors are not particular to non-use measures, in that they also impact any regulatory measure’s effectiveness. Interestingly, many of the factors that would lead to successful implementation, such as universal application or ambitious non-use measures with few exceptions, are the opposite of those that would lead to successful adoption.

A general consideration is the need to be careful with terminology and the relative value to give to terms. Non-use measures can be presented under a variety of names (moratorium, temporary pause or abstention, no-take zone, closed season, etc.), which can then also have different meanings across regimes.¹²³ While States are at times wary of terms such as bans and moratoria, probably because these are politically charged, and hence prefer to negotiate a zero-quota or a suspension, the chosen wording has, in practice, little impact on the measures themselves.¹²⁴ What will influence a non-use measures’ effectiveness is its actual geographical, material, temporal, and personal scopes of applicability.

5.1 Non-use Measures in Line with Objectives

To be successful, non-use measures must be in line with the stated objectives. In that sense, the CCAMLR MPAs with the clear no-take zones and regulations¹²⁵ are in a much better position than the OSPAR MPAs, which have ambitious objectives but include few, if any, concrete restrictions on human activities.¹²⁶ In fact, OSPAR MPAs do not provide any non-use measure.

Non-use measures must also be of adequate material, temporal, and geographical scopes. The existence of measures that have the potential to fulfil their objectives is generally enabled by regimes with strong scientific input into designing the measures, especially when expert advice is taken on board by decision-makers, as in the REMP for the Clarion-Clipperton Zone.¹²⁷ Even those measures might need revising if, in light of new data, it appears that they are not as able to fulfil the stated objectives as originally expected.¹²⁸ The availability of data to that end, gathered for example through on-site monitoring programs,¹²⁹ and the ability to modify a non-use measure are consequently important. The success of the Montreal Protocol is in part due to all these factors being met: strong scientific input is available to guide Parties in deciding whether to strengthen the regime, and the adjustment procedure makes it relatively simple to modify existing measures.¹³⁰

If exceptions are included in the non-use measures, some characteristics will make them less likely to undermine the actual objectives of the regulatory instrument. First, exceptions should be as limited in scope as possible. Then, they ought to be clearly defined; the scientific research exceptions to the moratoria on Antarctic mining and on whaling are examples of vagueness to avoid. In the former case, and although in practice it does not seem to have significantly undermined the moratorium (yet), the absence of definitions to both ‘Antarctic mineral activities’ and ‘scientific research’ and the potential overlaps between prospecting and scientific research makes it difficult to know with certainty whether a State is complying with the moratorium.¹³¹ The scientific whaling programme of Japan has also demonstrated the risks of abuse that can arise with lack of clarity – and unilateral implementation by States.¹³² In that respect, it is better if a multilateral body can decide on the validity of an exception, as is the case with scientific fishing exceptions in CCAMLR MPAs¹³³ or essential use under the Montreal Protocol.¹³⁴ If there is no body mandated to decide whether exceptions can be invoked or to implement exceptions directly, it is important that they be at least the subject of a reporting obligation by States, such as for permits to enter ASPAs or emergency exceptions to the various prohibitions of use found in the Environmental Protocol.¹³⁵

5.2 Contribution to Broader Aims

Non-use measures might meet their stated, specific objectives, but one can more generally wonder whether they are always sufficient to actually contribute in a meaningful manner to environmental protection or to other broader aims. As acknowledged, they are no magical tool, and non-use measures might often need to work in concert with restricted-use measures. Nonetheless, some sadly critical considerations are warranted.

Each non-use measure might appear in line with the stated objectives in a given instrument. Yet, they might still not effectively address the concerns that have triggered their development. Antarctic tourism is one such example, where worries about growth and diversification have been voiced for over a decade, but very little progress has been made in addressing these issues. The non-use measures in place are discrete and limited in scope, while more ambitious measures were rejected. All in all, they do not restrict Antarctic tourism to any significant degree.¹³⁶

The whaling moratorium, in turn, has led to the recovery of many whale species – and in that sense is a landmark achievement – but the continued controversy over this non-use measure has hampered efforts to address other threats to marine mammals, such as bycatch, noise pollution, or habitat degradation.¹³⁷ Hence, while the non-use measure itself has achieved its objectives, other (new) concerns would warrant further action for the protection of whales, which the IWC is not currently able to take.

In some cases, it is the limits to the regime’s mandate itself that are the issue. The dumping regime can generally be seen as successful in restricting that use of the ocean. However, the environmental impacts caused by dumping, in fact, pale vis-à-vis other sources of marine pollution, in particular land-based pollution.¹³⁸ Yet, those other sources of marine pollution are not regulated as strictly under their own regimes. Similarly, despite the success of individual MPAs in Antarctica, if one acknowledges that climate change represents the main threat to many ecosystems, and definitely so in Antarctica, the inability of the ATS to adopt non-use measures related to that issue is jarring. One could even advance that, in light of the impacts of climate changes, most non-use measure adopted under the ATS address comparatively minor issues.¹³⁹

In that respect, finally, one must point out that most, if not all, non-use measures examined are single-sectoral. Non-use measures focused on one activity include for example the moratorium on commercial whaling or the mining ban in Antarctica. Even within the CCAMLR regime, which has a wide mandate towards the conservation of Antarctic marine living resources, non-use measures are all limited to fishing and fishing-related activities.¹⁴⁰ It is difficult to imagine how such a piece-meal approach can respond to complex and interrelated challenges and address cumulative impacts.¹⁴¹

5.3 Implementation and Compliance

However perfectly designed non-use measures might be, they will only be efficient if they are actually implemented and complied with. Issues with implementation and compliance not only put at risk the achievement of a measure’s objectives, but are also likely to undermine trust between States and in the system. In addition to implementation and financial support, which might sometimes be needed, for example to find alternatives,¹⁴² the existence of avenues and structures for monitoring and to promote compliance are important to the success of any multilateral regime.

When it comes to global goods and commons, there usually are a variety of States and bodies with potential jurisdiction, as noted in relation to the proposed deep-seabed mining moratorium.¹⁴³ This situation can, on the one hand, decrease legal certainty, but, on the other hand, it provides several enforcement avenues, should they be needed. Nonetheless, a regime where several States have the right to verify compliance and address its potential absence is not to be equated with automatic actions by those States. For example, the forward-looking inspection system established under the Antarctic Treaty demonstrates that, oftentimes and for a variety of reasons, States will not use inspection rights.¹⁴⁴ Generally, a centralised multilateral body to control compliance ensures that States do not have to spend political capital to monitor other States’ behaviour. However, such bodies cannot solve deeper issues in a regime, if many parties reject their obligations.¹⁴⁵ In any case, a compliance mechanism can only function if States report on their activities, which they do not always have a good track record of doing.¹⁴⁶

The legal nature of the instrument in which a non-use measure is contained might also be a relevant factor to compliance, but probably not to a significant extent. While treaties and legally-binding instruments clearly create obligations for States, non-legally binding instruments can create efficient non-use measures – and are sometimes the only possible way forward. The ‘no regret’ measures adopted with regard to tourism are indeed included in a Resolution, which is non-binding – and yet they are considered as part of the corpus of regulation.¹⁴⁷ Non-mining areas under REMPs are also found in a non-binding policy document, but, according to the draft regulations, they are a prerequisite to exploitation.¹⁴⁸ The Artemis Accords are explicitly non-binding and, yet, they are quickly becoming the relevant legal framework to civil activities on the Moon.¹⁴⁹

5.4 Pacta Tertiis and Third States

To be effective, a non-use measure must be applied by all States and/or entities that could use the resource in question. In addition to the issue caused by opt-out provisions,¹⁵⁰ third States are, in light of the pacta tertiis rule, not bound by measures they have not consented to. This is a general challenge when it comes to global goods and commons, as the involvement of all States might be necessary to effectively implement a measure.

Hence, achieving (quasi-)universality is an obvious way for a regime to avoid free riding from third States. (Quasi-)universality is, however, not common beyond the ozone protection regime. Large memberships might be equally effective, but are influenced by the identity of the third State(s). Notwithstanding ratification by 170 Parties, the non-participation by the United States in UNCLOS brings up a number of issues, especially in relation to the deep-seabed mining regime.¹⁵¹ UNCLOS also offers other solutions to the problem of limited participation to some regimes. Indeed, through rules of reference, UNCLOS ensures that all States are bound by the dumping regime, notwithstanding limited participation in the London Convention and Protocol.¹⁵² When it comes to the whaling regime, there are no such rules of reference, but the obligation to cooperate in the conservation of marine mammals under UNCLOS (Articles 65 and 120) nonetheless places some requirements on States that are not parties to the ICRW.¹⁵³

In other cases, a regime does not need to be universal to be successful in reaching its objectives. For instance, CAOFA only has 10 Parties, currently the main States active in the Arctic. Article 8 of the treaty further calls Parties to “encourage non-parties to this Agreement to take measures that are consistent with the provisions of this Agreement [… and to] take measures consistent with international law to deter the activities of vessels entitled to fly the flags of non-parties that undermine the effective implementation of this Agreement”.¹⁵⁴ In practice, while third States are not bound by that treaty, it would be very difficult for them to engage in fishing in the high seas portion of the central Arctic Ocean without access to the ports of CAOFA Parties.

Generally, it has been noted that the issue of third States is less concerning in reality than could be imagined. Within the ATS, a policy of openness and inducement has ensured that interested States joined the relevant regimes instead of free riding.¹⁵⁵ In the case of RFMOs, a consistent practice has developed to treat fishing by vessels flying the flag of a non-party as illegal, unreported, or unregulated fishing, which can have negative consequences for the State in question.¹⁵⁶ Hence, several regimes have tools to counteract free riding – and there is no reason that such tools could not be extended to the implementation of non-use measures.

6 Future Prospects of Non-use Measures

This volume started as a project with dual objectives: understand existing non-use measures and discuss the possibility of new ones. Existing non-use measures remain relatively limited in number but have much to teach those that might wish to see the adoption of future bans, moratoria, no-take zones, or precautionary pauses. Some proposed alternative paths not chosen by States where other non-use measures would have been adopted – sometimes seen as missed opportunities¹⁵⁷ – can also inform future non-use measures. In an era of climate change, non-use measures might become more widespread, but practical challenges remain, as do valid questions as to whether non-use measures should always be promoted.

6.1 Non-use Measures in an Era of Climate Change

Climate change is a major threat to many ecosystems and biodiversity around the world and acts as a crosscutting issue in most examined regimes. Indeed, it appears not only as a reason to adopt a non-use measure but also, inversely, as the grounds to reject it.

On the one hand, climate change and its direct or related effects are important reasons behind the need for some non-use measures. In the case of oil and gas extraction, the academic call for non-use measures, i.e. the ‘leave-it-in-the-ground’ movement, is clearly related to climate change: by implementing such non-use measure, one would indeed tackle an important source of greenhouse gases – and hence mitigate climate change and its impacts.¹⁵⁸ The proposed closure of the high seas to fishing would also, in a more marginal manner, contribute to conventional mitigation through reduction of emissions and increased carbon sequestration.¹⁵⁹ In some cases, the activity in question clearly contributes to climate change, as does Antarctic tourism, but the relevant regime remains surprisingly silent about that issue, even in a time of regulatory development.¹⁶⁰

In other cases, climate change is the reason why an activity becomes possible and hence might become regulated by non-use measures. For instance, CAOFA was developed in part because, due to ice melting, fisheries in the central Arctic Ocean might soon become accessible and stocks are migrating polewards.¹⁶¹ Climate change might also require the development of measures with novel characteristics, in order to take global warming into account: dynamic MPAs would, for example, be better equipped to protect migrating stocks than conventional MPAs.¹⁶² In still other circumstances, non-use measures might be needed because climate change creates an additional stressor on ecosystems, which stand a better chance to tolerate the pressure if other human activities are curtailed, as in CCAMLR MPAs.¹⁶³ Yet, not all States are willing to acknowledge that climate change’s ubiquitous causes and consequences may require regimes besides the United Nations climate conventions to act and restrict their uses of various resources. This is particularly true for States that have a complicated relationship with the concept of anthropogenic climate change.

On the other hand, climate change appears in several cases to be the ‘higher environmental purpose’ that could serve as a reason to reject non-use measures or to create exceptions to them. For example, while the deep-seabed mining moratorium is presented as pro-environmental conservation, opponents have also pointed out that a transition to green renewable energies requires metals that are available in and on the deep seabed.¹⁶⁴ Similar arguments pro-use are made by space expansionists when it comes to outer space mining activities.¹⁶⁵ In the dumping regime, the addition of carbon dioxide streams in the oceans, which is a new technology intended to reduce the level of CO₂ in the atmosphere and hence mitigate climate change, has been explicitly added to the list of allowed dumping activities. This decision seems to have been made in light of the important environmental objective pursued.¹⁶⁶

Interestingly, other uses of the seas that are also intended to reduce climate change, ie marine geoengineering (except scientific research into iron fertilisation), have been prohibited by the same dumping regime.¹⁶⁷ The nature of risks and uncertainties inherent to certain technologies seems to have been the main reason for their prohibition. Similarly, the call for a Non-use Agreement for Solar Geoengineering places in strong focus the opposition between addressing climate change and taking major – and unjustifiable in the view of this Non-use Agreement’s proponents – risks in order to do so.¹⁶⁸ The decision of which ‘higher environmental purpose’ is to be given priority is clearly a case-by-case decision, informed by scientists, but ultimately in the realms of policy and politics.

6.2 Potential New or Additional Non-use Measures

As examined in this volume, several non-use measures could arguably be developed and adopted (Table 20.2). The adoption of new non-use measures will depend on a variety of factors, many of which presented were presented in section 4 above, as applied to the specific circumstances of each case. Notwithstanding this variability, three categories of new or additional non-use measures can be distinguished.

First, there are the entirely new non-use measures, in regimes which had none, or with a totally different scope than existing non-use measures. These are also the most radical measures, which would create a new regime or fully change the default situation of an existing regime. A Non-use Agreement for Solar Geoengineering would be absolutely novel, addressing technologies and uses that are (nearly) unregulated internationally, even with restricted-use measures.¹⁶⁹ Prohibiting the use of outer space resources except for scientific research or other stated objective for the benefit of humankind would not only be revolutionary but would probably also require a careful design to avoid outrightly violating the Outer Space Treaty.¹⁷⁰ Some proposals for major non-use measures might be slightly less revolutionary, but they remain novel in scope of application. For example, closing the high seas to fishing would be at a scale not in line with existing high seas MPAs or fisheries closures.¹⁷¹ Also, the proposed deep-seabed mining moratorium, which is under discussion among States and non-State actors, might apply to the whole Area, towards all minerals, and all types of activities;¹⁷² this contrasts with non-mining zones in REMPs, which are focused on designated minerals and areas.¹⁷³ Similarly, closing Antarctica to tourists except in designated areas, which was already envisioned by both ASTIs and a ‘no regret’ measure, would be of a totally different nature than existing ASPAs.¹⁷⁴

TABLE 20.2

Potential new or additional non-use measures

	Entirely new non-use measures	New non-use measures deriving from (existing) restricted-use measures	New non-use measures similar to existing ones
High seas	Reversal of the default situation with the closure of the high seas to fishing		Additional no-take zones in MPA s Additional non-use fisheries management measures
Area	Moratorium prohibiting deep- seabed mining or a precautionary pause		Additional non-mining zones under REMP s
Antarctica	Reversal of the default situation with tourism prohibited except in designated locations and under prescribed conditions		Additional no-take zones in MPA s Additional no-entry zones in ASPA s Additional prohibitions of specific activities or behaviours
Atmosphere and outer space	Ban on solar geoengineering technology and/or research Reversal of the default situation with resources of the outer space not to be used except for scientific research or other stated objective for the benefit of humankind	No-entry zones in outer space (heritage protection zones)

A second category are those new non-use measures that would derive from (existing) restricted-use measures through a process of progressive tightening of the rules. This happened in the whaling and ozone protection regimes, which started as restricted-use regimes before turning to non-use ones.¹⁷⁵ It is has also proved central in the dumping regime, with the addition of prohibited substances on the Annexes of the London Convention and/or the removal of exceptions on the Annexes to the London Protocol.¹⁷⁶ New non-use measures can hence derive from restricted-use measures acting as a stepping stone to prepare the regulatory environment for non-use measures. For example, once safety zones are fully accepted in the regulatory regime of the Moon, they could pave the way to non-use measures, such as heritage protection zones.¹⁷⁷

Finally, a third category relates to all those new non-use measures that are similar to existing ones. For example, this covers further CCAMLR MPAs with no-take zones,¹⁷⁸ additional REMPs with non-mining areas,¹⁷⁹ new ASPA s with non-entry areas,¹⁸⁰ and new non-use fisheries management measures.¹⁸¹ While one could think that measures in this category would be the easiest to adopt, this is actually not the case. The likelihood of the adoption of these four non-use measures is in fact very different: REMPs seem to be an ISA priority and will probably move forward, non-use fisheries management measures and ASPA s are developed and generally adopted when the need arises and relevant States agree, and new CCAMLR MPAs are very much in a deadlock. For both CCAMLR MPAs and REMPs, some States call for harmonisation or revision of the procedures for the development and adoption of the measure. While standardised and robust procedures are to be applauded, especially when several similar measures are planned, these calls can also be a strategy to slow or stall a non-use measure’s development and/or adoption.

While it might seem that the adoption of a large-scale measure reversing the default situation would make other non-use measures with more limited scopes of applicability unnecessary or even redundant, one could argue otherwise. Overlapping measures already exist, in particular with the whaling moratorium and the Whale Sanctuary in the Southern Ocean. They can serve as back-up and ensure that, should the broader non-use measure lapse, some protection remains. In that sense, even if a deep-seabed mining moratorium is adopted with a broad geographical scope, REMPs should not necessarily be terminated.

6.3 Pathways for the Development and Adoption of Future Non-use Measures

New non-use measures are under discussion in many intergovernmental fora, such as the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), CCAMLR, and the ATCM.¹⁸² Some are on the agenda, such as MPAs at CCAMLR. Others are in the Building Blocks sent to UNCOPUOS for its consideration. As to further non-use measures for Antarctic tourism beyond additional ASPA s or behaviour- or activity-related prohibitions, they are not (yet) explicitly mentioned as an option at the ATCM. However, it is still early days in the negotiations towards a Framework for the Regulation of Tourism and Other Non-governmental Activities in Antarctica. Moreover, non-use measures were included in other recent policy proposals, and could consequently be expected to make a return.¹⁸³ Only the future will tell whether, in each forum, the conditions are met to convince all or the necessary majority of States to adopt the relevant proposal.

When it comes to non-use measures that would not clearly fall within the mandate of a particular existing intergovernmental regime or have not been taken on-board by governments, such as the call for a closure of the high seas to fishing and non-use of solar geoengineering technologies, the prospects are certainly bleaker. Notwithstanding an uphill battle, such proposals can still influence regulatory processes. Indeed, the Building Blocks, for example, were drafted by a group of stakeholders and were then submitted to UNCOPUOS for consideration.¹⁸⁴

Even for the proposals that fall within existing intergovernmental regimes and are supported by States, major challenges remain. In particular, in procedural terms, certain regimes are deadlocked or unwilling to consider non-use measures. Alternative approaches to the traditional purely inter-State negotiation process within a given regime might need to be envisaged, such as through diplomatic and high-level political pressure¹⁸⁵ or the initially unilateral initiative of a major State.¹⁸⁶

Beyond these already tried-and-tested methods, the adoption of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement) has been hailed as very positive for an integrated protection of the marine environment. This framework treaty for all marine biodiversity in areas beyond national jurisdiction (ABNJ) puts a large quantity of commons in one comprehensive and potentially coherent regime. This regime is open to all States, focused on a balance of conservation and sustainable use, and the product of our current times, hence including modern principles of international environmental law. Since one of its parts concentrates on area-based management tools (ABMTs), including MPAs, this regime is viewed as a potential alternative and/or additional avenue for the adoption of MPAs in ABNJ, such as in Antarctica. Key interpretation issues will however need to be resolved before it can be implemented. These, in particular the concepts of ‘not undermine’ and ‘competences’ in relation to existing bodies, will determine the potential of this new regime to adopt ABMTs in geographical areas where other institutions also have a relevant mandate.¹⁸⁷ The BBNJ Agreement could also have an impact on non-use measures in the Area¹⁸⁸ and in area-based management of human activities such as dumping.¹⁸⁹ Moreover, whether directly, institutionally, or normatively, this regime is likely to contribute to the consideration of cumulative impacts of various ocean uses. Hopefully, it will then lead to the adoption of more ambitious, integrated, and multi-sectoral measures.¹⁹⁰

Unfortunately, a similar framework is not available in relation to the land-mass of Antarctica, the atmosphere or outer space. Hence, one cannot rely on the option that the relevant regimes be side-lined, or forced to act because of institutional competition. The regulation of Antarctic tourism, for example, will most likely remain within the scope of the ATS. While the International Maritime Organization and the International Labour Organization provide shipping and working standards and hence are relevant to some aspects of tourism in Antarctica, there is no regime apart from the ATS that could regulate other facets of this activity. However, history of that particular regime shows that pressure from the UNGA, for example, can lead to major regulatory changes. Also, while multi-sectoral measures might be beneficial and easier to adopt within the framework of the BBNJ Agreement, or through the institutional cooperation it might instigate, the ATCM is fully able to enter into agreements with other sectoral bodies and to collaborate with them.

The absence of a BBNJ Agreement-like treaty in the outer space regime means that there are no normative security nets or cross-fertilisation that would enable an old regime to embrace new environmental concepts. The Outer Space Treaty is explicitly pro-use and reconciling no-entry zones with its key provisions, while possible, remains a delicate exercise relying on the duty of due regard and the obligation of cooperation.¹⁹¹ Nonetheless, this treaty does not exist in a vacuum and it acknowledges that international law applies to space activities, opening the door to climate change considerations for example.¹⁹² Moreover, if past examples are anything to go by, careful design of measures and progressive steps can lead to a new interpretation of a regime; high seas MPAs were indeed adopted before the BBNJ Agreement and, they too, walked a fine line between respecting the freedoms of the high seas and ensuring environmental protection. While, arguably, high seas MPAs still only bind States that have directly consented to them,¹⁹³ the legality of this type of conservation measure is not up to debate anymore.

6.4 Promotion of Non-use Measures for Environmental Protection

This final section addresses the critical question of whether non-use measures should actually be promoted and what risks/benefits they entail.

Adopting and implementing non-use measures is not a silver bullet. At present, non-use measures for global goods and commons are largely single-sectoral and rather piece-meal, which is quite inefficient for integrated environmental protection. Their adoption does not always have much to do with environmental concerns, with States pursuing varied and not always fully acknowledged objectives. They also sometimes target activities that are easier to regulate instead of those with the largest impact on the environment.¹⁹⁴ Moreover, non-use measures can have unintended, and at times counter-productive, side-effects, such as displacing an activity to another area which is not always better equipped to deal with the impacts. For example, a moratorium on outer space mining could lead to increased efforts to mine the deep seabed or continental Antarctica.¹⁹⁵ Non-use measures might also cause other unintended negative impacts. The phase-out of ODS s, for instance, led to the use of hydrofluorocarbons, which act as non-ozone-depleting substitutes. Yet, these substances have a high global warming potential and their use contributes to global warming.¹⁹⁶

It has also been argued that non-use measures would hamper the gathering of scientific data.¹⁹⁷ In these cases where much data is recovered by the industry, this is indeed a factor to be taken into account. Nonetheless, oftentimes, there is a scientific research exception that enables a certain level of extractive activity to proceed, as long as it also fulfils advanced data gathering requirements.¹⁹⁸ A more fundamental issue, maybe, is the risk that a non-use measure disrupts a regime. Forcing such measure onto unwilling States by way of majority voting or pressure might trigger them to leave a regime, as Japan did vis-à-vis the ICRW in 2019.¹⁹⁹ The existence of non-use measures within a regime might also be a more fundamental threat to the regime itself; the inability for CCAMLR Members to move forward on the question of MPAs is a source of concern that the regime simply cannot function anymore.²⁰⁰

Notwithstanding these challenges, non-use measures have the potential to contribute to environmental protection in that they give some breathing space to nature/certain species and/or restrict certain activities. CCAMLR MPAs, for example, are meant to provide refugia to species under climate change stress.²⁰¹ They can also give States and relevant stakeholders the time to gather and analyse relevant scientific data, in order to base any restricted-use measures on solid advice, such as intended under CAOFA.²⁰² Finally, while not equal to the rights of nature movement, in which a discussion on rights of non-use can be embedded,²⁰³ or other ecocentric initiatives, non-use measures pursue some similar objectives and are more likely to be adopted in the near future than a paradigm shift.²⁰⁴ The decision, if taken, not to use certain resources or technologies might also contribute to deep reconsideration of humans’ relationship with nature and the acknowledgment that major changes to our systems are needed.²⁰⁵

Acknowledgments

The authors would like to thank Erik Molenaar for comments on earlier versions of this chapter.

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.

See the definitions by Guggisberg in chapter 2

Guggisberg in chapter 2.

United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397, art 145, see the discussion by Jaeckel et al in chapter 10.

Crespo in chapter 3.

This relationship between fish and whales is not presented here in support of culling whales in order to increase fish availability for fisheries. On debunking this argument, see L. R. Gerber et al, “Should Whales Be Culled to Increase Fishery Yield?” (2009) 323 Science 880–881.

Harrison in chapter 8; Oomen in chapter 16.

Guggisberg and Lennan in chapter 17.

Oomen in chapter 16.

Roura and Guggisberg in chapter 15.

Guggisberg and Lennan in chapter 17.

Urrutia in chapter 5; Molenaar in chapter 6; Gollner et al in chapter 9; Jaeckel et al in chapter 10; Guggisberg and Lennan in chapter 17.

As expressed by some States regarding whales when debating the moratorium, see Jeffries and Latos in chapter 7.

Jaeckel et al in chapter 10; Cheney in chapter 18.

Menini et al in chapter 11; Teschke and Konijnenberg in chapter 12; Guggisberg in chapter 13; Roura and Guggisberg in chapter 15.

Jaeckel et al in chapter 10.

ibid; Cheney in chapter 18; Martin in chapter 19.

Roura and Guggisberg in chapter 15; Guggisberg and Lennan in chapter 17; Martin in chapter 19.

Crespo in chapter 3.

Cheney in chapter 18.

Jaeckel et al in chapter 10.

See eg A. Jaeckel, J. A. Ardron and K. Gjerde, “Sharing benefits of the common heritage of mankind – Is the deep seabed mining regime ready?” (2016) 70 Marine Policy 198–204; E. Lèbre et al, “Mining on land or in the deep sea? Overlooked considerations of a reshuffling in the supply source mix” (2023) 191 Resources, Conservation and Recycling 106898; 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.

Kempf in chapter 14; see also eg P. J. Beck, “Twenty years on: the UN and the ‘Question of Antarctica,’ 1983–2003” (2004) 40 Polar Record 205–212; R. Tepper and M. Haward, “The Development of Malaysia’s position on Antarctica: 1982–2004” (2005) 41 Polar Record 113–124.

Jeffries and Latos in chapter 7.

Jefferies and Latos in chapter 7; see also eg M. Fitzmaurice, “The International Convention for the Regulation of Whaling and International Whaling Commission – Conservation or Preservation – Can the Gordian Knot Be Cut (or Untangled)” (2013) 5 Yearbook of Polar Law 451–492; J. Morishita and D. Goodman, “The IWC moratorium on commercial whaling was not a value judgment and was not intended as a permanent prohibition” (2011) 1 Aegean Review of the Law of the Sea and Maritime Law 301–311; G. J. Nagtzaam, “The International Whaling Commission and the Elusive Great White Whale of Preservationism” (2009) 33 William & Mary Environmental Law and Policy Review 375–447.

Urrutia in chapter 5.

Oomen in chapter 16.

Harrison in chapter 8.

Guggisberg in chapter 13.

Roura and Guggisberg in chapter 15.

Jeffries and Latos in chapter 7.

Kempf in chapter 14.

Cheney in chapter 18.

Harrison in chapter 8; Oomen in chapter 16.

Guggisberg in chapter 2.

Teschke and Konijnenberg in chapter 12.

Guggisberg in chapter 13.

Jeffries and Latos in chapter 7; Kempf in chapter 14.

Molenaar in chapter 6.

Roura and Guggisberg in chapter 15.

ibid.

Harrison in chapter 8; Guggisberg and Lennan in chapter 17.

Guggisberg in chapter 13.

Menini et al in chapter 11.

Roura and Guggisberg in chapter 15.

Molenaar in chapter 6. The situation for non-parties is also – but differently – very complex. In light of their rights and obligations on high seas fishing under international fisheries law, as reflected in the UNCLOS and the United Nations Fish Stocks Agreement, one could question whether or not they are allowed to fish in contravention of CAOFA’s rules. This falls beyond the scope of this chapter but raises similar questions as those related to the right of non-parties to regional fisheries management organisations (RFMO s) to fish.

Jeffries and Latos in chapter 7; see also eg no author, “2004 Annual Meeting, International Whaling Commission” (2004) 7 Journal of International Wildlife Law and Policy 217–222.

Roura and Guggisberg in chapter 15.

Guggisberg in chapter 2.

See eg K. Baslar, The Concept of the Common Heritage of Mankind in International Law (Martinus Nijhoff Publishers 1998); A. A. and Cançado Trindade, International Law for Humankind (Brill 2010), chapter XIII; P. Taylor, “The concept of the common heritage of mankind”, in D. Fisher (ed), Fundamental Concepts of Environmental Law (Edward Elgar 2022).

Guggisberg in chapter 13.

Urrutia in chapter 5.

Molenaar in chapter 6.

Teschke and Konijnenberg in chapter 12; Guggisberg in chapter 13.

Crespo in chapter 3; Urrutia in chapter 5.

Cheney in chapter 18; Martin in chapter 19.

Cheney in chapter 18.

ibid.

Menini et al in chapter 11.

Jaeckel et al in chapter 10; see also eg International Seabed Authority, Equitable sharing of financial and other benefits from deep-seabed mining, ISA Technical Study No. 31 (2021).

Guggisberg and Lennan in chapter 17.

Kempf in chapter 14.

Guggisberg in chapter 13.

Molenaar in chapter 6.

Kempf in chapter 14.

Jaeckel et al in chapter 10; Menini et al in chapter 11.

Roura and Guggisberg in chapter 15.

Jeffries and Latos in chapter 7.

Urrutia in chapter 5.

Teschke and Konijnenberg in chapter 12; Guggisberg in chapter 13.

Menini et al in chapter 11.

Guggisberg and Lennan in chapter 17.

Jeffries and Latos in chapter 7; Harrison in chapter 8.

Roura and Guggisberg in chapter 15.

Guggisberg in chapter 13.

Roura and Guggisberg in chapter 15.

Molenaar in chapter 6.

Guggisberg in chapter 13.

Kempf in chapter 14.

Molenaar in chapter 6.

Urrutia in chapter 5.

Jeffries and Latos in chapter 7.

Urrutia in chapter 5; Molenaar in chapter 6.

Guggisberg in chapter 13; Kempf in chapter 14.

Teschke and Konijnenberg in chapter 12; Guggisberg in chapter 13.

Jeffries and Latos in chapter 7; see also S. Guggisberg, “Legal considerations around Japan’s announcement that it will leave the International Whaling Commission” (2019) Nereus blogpost, available at <https://nereusprogram.org/works/legal-considerations-around-japans-announcement-that-it-will-leave-the-international-whaling-commission-iwc/> accessed 8 September 2024.

Urrutia in chapter 5.

Roura and Guggisberg in chapter 15.

Harrison in chapter 8.

Urrutia in chapter 5; Jeffries and Latos in chapter 7; Guggisberg in chapter 13.

Jeffries and Latos in chapter 7; Menini et al in chapter 11; Guggisberg in chapter 13.

Jeffries and Latos in chapter 7.

Guggisberg and Lennan in chapter 17.

Molenaar in chapter 6.

Guggisberg in chapter 13.

See respectively, Guggisberg in chapter 13; Kempf in chapter 14; Roura and Guggisberg in chapter 15.

Guggisberg in chapter 13.

See eg Harrison in chapter 8; Kempf in chapter 14; Guggisberg and Lennan in chapter 17.

Molenaar in chapter 6.

100

Guggisberg in chapter 13.

101

Guggisberg and Lennan in chapter 17.

102

Kempf in chapter 14.

103

Jeffries and Latos in chapter 7.

104

Urrutia in chapter 5.

105

Crespo in chapter 3.

106

Molenaar in chapter 6; Jeffries and Latos in chapter 7; Jaeckel et al in chapter 10; Kempf in chapter 14.

107

Kempf in chapter 14.

108

Menini et al in chapter 11.

109

Crespo in chapter 3; Oomen in chapter 16.

110

Klerk in chapter 4.

111

Menini et al in chapter 11; Teschke and Konijnenberg in chapter 12.

112

Gollner et al in chapter 9; Menini et al in chapter 11.

113

Jeffries and Latos in chapter 7.

114

Harrison in chapter 8.

115

Guggisberg and Lennan in chapter 17.

116

1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (adopted 7 November 1996, entered into force 24 March 2006) 36 ILM 1, art 3(1) (emphasis added), see Harrison in chapter 8.

117

Molenaar in chapter 6.

118

Gollner et al in chapter 9; Jaeckel et al in chapter 10.

119

Crespo in chapter 3; Urrutia in chapter 5.

120

Teschke and Konijnenberg in chapter 12; Guggisberg in chapter 13.

121

Guggisberg in chapter 13.

122

Jeffries and Latos in chapter 7.

123

Guggisberg in chapter 2.

124

Jeffries and Latos in chapter 7.

125

Teschke and Konijnenberg in chapter 12; Guggisberg in chapter 13.

126

Klerk in chapter 4.

127

Menini et al in chapter 11.

128

Gollner et al in chapter 9.

129

Klerk in chapter 4; Menini et al in chapter 11.

130

Guggisberg and Lennan in chapter 17.

131

Kempf in chapter 14.

132

Japan’s decision to (ab)use the scientific whaling exception was also closely linked to the unwillingness by the majority in the IWC to lift the moratorium – at least in part – despite scientific evidence, as is mentioned in section 4.4 above.

133

Guggisberg in chapter 13.

134

Guggisberg and Lennan in chapter 17.

135

Roura and Guggisberg in chapter 15.

136

ibid.

137

Jeffries and Latos in chapter 7.

138

Harrison in chapter 8.

139

Guggisberg in chapter 13.

140

ibid.

141

ibid.

142

Harrison in chapter 8; Guggisberg and Lennan in chapter 17.

143

Jaeckel et al in chapter 10.

144

Kempf in chapter 14.

145

Guggisberg and Lennan in chapter 17.

146

Klerk in chapter 4; Harrison in chapter 8.

147

Roura and Guggisberg in chapter 15.

148

Menini et al in chapter 11.

149

Cheney in chapter 18; Martin in chapter 19.

150

Jeffries and Latos in chapter 7. But see Harrison in chapter 8 for a more positive take on opt-out provisions.

151

Jaeckel et al in chapter 10.

152

Harrison in chapter 8. The applicability of the London Protocol to all States through UNCLOS is however more controversial than that of the London Convention.

153

Jeffries and Latos in chapter 7.

154

Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA) (opened for signature 3 October 2018, entered into force 25 June 2021) OJ 2019 L 73/3, see Molenaar in chapter 6.

155

Kempf in chapter 14.

156

Urrutia in chapter 5.

157

Roura and Guggisberg in chapter 15 (ASTIs in Antarctica); Cheney in chapter 18 (Moon Agreement).

158

Guggisberg in chapter 2; Guggisberg and Lennan in chapter 17.

159

Crespo in chapter 3.

160

Roura and Guggisberg in chapter 15.

161

Molenaar in chapter 6. The same applies to some Antarctic regions, see Teschke and Konijnenberg in chapter 12.

162

Klerk in chapter 4.

163

Teschke and Konijnenberg in chapter 12.

164

On this, see eg L. A. Levin, D. J. Amon and H. Lily, “Challenges to the sustainability of deep-seabed mining” (2020) 3 Nature Sustainability 784–794; V. Vivoda, “Uncharted depths: Navigating the energy security potential of deep-sea mining” (2024) 369 Journal of Environmental Management 122343.

165

Cheney in chapter 18.

166

Harrison in chapter 8.

ibid.

Oomen in chapter 16.

ibid.

Cheney in chapter 18.

171

Ortuño in chapter 3; Urrutia in chapter 5; Molenaar in chapter 6; Guggisberg in chapter 13.

172

Jaeckel et al in chapter 10.

173

Menini et al in chapter 11.

174

Roura and Guggisberg in chapter 15.

175

Jeffries and Latos in chapter 7; Guggisberg and Lennan in chapter 17.

176

Harrison in chapter 8.

177

Martin in chapter 19.

178

Teschke and Konijnenberg in chapter 12; Guggisberg in chapter 13.

179

Menini et al in chapter 11.

180

Roura and Guggisberg in chapter 15.

181

Urrutia in chapter 5.

182

Guggisberg in chapter 13; Roura and Guggisberg in chapter 15; Martin in chapter 19.

183

Roura and Guggisberg in chapter 15.

184

Martin in chapter 19.

185

Teschke and Konijnenberg in chapter 12; Guggisberg in chapter 13.

186

Guggisberg and Lennan in chapter 17; Cheney in chapter 18; Martin in chapter 19.

187

Klerk in chapter 4; Urrutia in chapter 5; Guggisberg in chapter 13.

188

Menini et al in chapter 11.

189

Harrison in chapter 8.

190

Klerk in chapter 4; Guggisberg in chapter 13.

191

Martin in chapter 19.

192

Cheney in chapter 18.

193

Klerk in chapter 4.

194

Harrison in chapter 8; Guggisberg in chapter 13.

195

Cheney in chapter 18. On other risks of displacement, see Crespo in chapter 3.

196

Guggisberg and Lennan in chapter 17.

197

Jeffries and Latos in chapter 7.

198

Teschke and Konijnenberg in chapter 12; Guggisberg in chapter 13.

199

Jeffries and Latos in chapter 7.

200

Kempf in chapter 14.

201

Teschke and Konijnenberg in chapter 12.

202

Molenaar in chapter 6.

203

Guggisberg in chapter 2.

204

S. Guggisberg, “Rights of Nature and Non-use of Nature for Environmental Protection in Antarctica” (2024) 14 The Polar Journal 446–474.

205

Oomen in chapter 16; Cheney in chapter 18.

Citation Info

Save
Cite
Email this content

Share link with colleague or librarian

You can email a link to this page to a colleague or librarian:
Email this content
or copy the link directly:

https://brill.edhh.ma/edcollchap-oa/book/9789004730571/BP000032.xml
The link was not copied. Your current browser may not support copying via this button.

Link copied successfully

Collapse
Expand

Non-use Measures for Global Goods and Commons in International Law

Series: Publications on Ocean Development, Volume: 105

E-Book ISBN:: 9789004730571

Publisher:: Brill | Nijhoff

Print Publication Date:: 11 Jul 2025

Subjects
- International Law

Front Matter

Back Matter

Metrics

	All Time	Past 365 days	Past 30 Days
Abstract Views	0	0	0
Full Text Views	212	182	15
PDF Views & Downloads	122	102	6

African Studies	Education	Media Studies
American Studies	History	Middle East and Islamic Studies
Ancient Near East and Egypt	Human Rights and Humanitarian Law	Musicology
Art History	International Law	Philosophy
Asian Studies	International Relations	Religious Studies
Biblical Studies	Jewish Studies	Slavic and Eurasian Studies
Biology	Languages and Linguistics	Social Sciences
Book History and Cartography	Life Sciences	Theology and World Christianity
Classical Studies	Literature and Cultural Studies

Subjects

Authors

Open Access

Product Information

Company

Contact

Chapter 20 Conclusions

Lessons Learnt and Pathways for Future Non-use Measures for Global Goods and Commons in International Law

1 Introduction

2 Complexity of Concepts Relating to Non-use

2.1 Application of the Conceptual Framework’s Definitions

2.2 Aims and Objectives of Non-use

2.3 Scientific Research and Ultimate Purpose of Use

2.4 Restricted-use and Non-use Measures

3 Influence on Non-use Measures of Principles Underpinning Global Goods and Commons Regimes

3.1 Varied and Unequally Distributed Non-use Measures

3.2 Prima Facie Pro-use Regimes

3.3 Common Heritage of Humankind and Common Concern

3.4 Sui Generis Regime

4 Factors that Contribute to the Successful Adoption of Non-use Measures

4.1 Characteristics of Non-use Measures

4.2 Procedural Factors

4.3 External Factors

4.4 Role of Science

5 Factors that Contribute to Successful Implementation/Effectiveness of Non-use Measures

5.1 Non-use Measures in Line with Objectives

5.2 Contribution to Broader Aims

5.3 Implementation and Compliance

5.4 Pacta Tertiis and Third States

6 Future Prospects of Non-use Measures

6.1 Non-use Measures in an Era of Climate Change

6.2 Potential New or Additional Non-use Measures

6.3 Pathways for the Development and Adoption of Future Non-use Measures

6.4 Promotion of Non-use Measures for Environmental Protection

Acknowledgments

Citation Info

Share link with colleague or librarian

Non-use Measures for Global Goods and Commons in International Law

Table of Contents

Metrics

Metrics