On Tragedy of Commons, State Sovereignty and BBNJ Treaty: Reconnoitring for Harmony

• Pages: 12-30

LEX PORTUS VOL 10 ISS 6 2024

ISSN 2524-101X

eISSN 2617-541X

DOI 10.62821/lp10602

On Tragedy of Commons, State Sovereignty

and BBNJ Treaty: Reconnoitring for Harmony

Arindam Basu*, Sharda Mandal**, Ananya Das***

*Assistant Professor, Rajiv Gandhi School of Intellectual Property Law (IIT Kharagpur, West Bengal 721302, India) https://orcid.org/0000-0003-3834-7475

**Rajiv Gandhi School of Intellectual Property Law (IIT Kharagpur, West Bengal 721302, India) https://orcid.org/0000-0001-5767-8435

***Rajiv Gandhi School of Intellectual Property Law (IIT Kharagpur, West Bengal 721302, India) https://orcid.org/0009-0006-6653-5712

ABSTRACT

Garrett Hardin’s ‘Tragedy of the Commons’ may be almost half a century old. But the centrality

of the theory is still relevant for the environmental challenges associated to the management of

global commons. In this article, we examine the newly adopted treaty for the conservation of

marine biological diversity in areas beyond national jurisdiction (BBNJ) in the light of Hardin’s basic

postulation that a tragedy eventually materializes following an indiscriminate use of resources

freely available to all and used to pursue self-interests. Today, the problem transcends beyond

self-seeking state actions and analogous cost-benet inquiry. A deeper examination is absent

largely from the analytical framework of commons management, leaving an important question

unanswered – how far does the concept of state sovereignty hold the potential to alter the

boundary of the legal framework on global commons, thinning the theoretical underpinnings of

the ‘tragedy’ itself? This in eect reduces the transparency of choices and reduces the incentives

of states to negotiate a strong global agreement for commons. Because the BBNJ Treaty is

expected to upgrade the legal framework of the United Nations Convention on Law of the Sea

(UNCLOS), it is desirable to compare the structural features of both. It is our argument that the

BBNJ Treaty has failed to alter the boundary of state sovereignty or sovereign rights suciently

to advance a novel solution towards the problems of high sea commons. The challenges that

frustrated UNCLOS to cast a strong protective net over high seas, resurfaced and gridlocked BBNJ

Treaty, too. As, conservation and management of common resources leaves narrow space for all

nations irrespective of their positions in international politics, there is a need to revisit the pitch

of negotiation to avoid any further ‘tragedy’ that already has turned up high seas a battleground

for interest-negotiation.

CITATION

Basu, A., Mandal, Sh., & Das, A.

(2024). On Tragedy of Commons,

State Sovereignty and BBNJ

Treaty: Reconnoitring for

Harmony. Lex Portus, 10(6), 18–36.

https://doi.org/10.62821/lp10602

KEYWORDS

UNCLOS, the tragedy of commons,

BBNJ treaty, areas beyond national

jurisdiction, negotiations, the

common heritage of mankind

The journal is licensed under a Creative Commons Attribution-

NonCommercial-ShareAlike 4.0 International License

Introduction

More than two decades of uncertainty ended when, on 19 June 2023, nearly 200 countries,

by consensus, adopted 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. Popularly known by its acronym, BBNJ Treaty, it is considered to be an

improvement over the Third United Nations Convention on the Law of the Sea (UNCLOS)

(Convention on the Law of the Sea, 1982). This is a long-awaited change as for decades, the

eectiveness of UNCLOS provisions related to high seas have remained controversial, nurturing

one of the most dicult questions in contemporary international law – how should global

commons be regulated?

Thus far, the majority of the debates on commons draw inspiration from Garett

Hardin’s seminal work published in 1968, advancing the theory called ‘tragedy of the

commons.’ Originally conceptualized by the British scholar William Foster Lloyd in the

19th Century, the concept carries a special signicance in international environmental law.

19LEX PORTUS VOL 10 ISS 6 2024

Usually, when in any ecological complex, the ‘sin’ of indiscriminate resource use by someone

causes harm to others, the problem of commons emerges. A ‘tragedy’ ensues gradually,

amplied by a parochial belief of the users that they could individually gain more by

overconsuming and ignoring others’ needs (Hardin, 1968, p. 1243–1248). In international law,

the situation is more complex when this type of consumption pattern is repeated for resources,

available to all nations. This is typically exemplied by the problem of global commons.

High seas, approximately covering two-thirds of the world’s oceans, are beyond any national

jurisdiction and epitomized as vital global commons. Unfortunately, these areas, rich in

invaluable marine life, are under unprecedented threat because of overshing, pollution, sea-

bed mining, and climate change. This is the result of over-consumptions by states, asserting

rights over these resources. This, therefore, can fairly be called the ‘tragedy of global commons.

To address this, states while developing the BBNJ Treaty, have silently revisited Hardin’s basic

postulation. Yet, they were reluctant to compromise on their inclination to claim whatever was

historically available to them freely. The outcome is dichotomous. Forthright, the successful

negotiation of the BBNJ Treaty is greeted with great joy within the international community.

However, reservations remain regarding the inuence of state sovereignty in terms of shaping

the nal outcome of the Treaty. More importantly, it must be seen if the strong sense of

sovereignty has, in fact, reduced the transparency of choices for the states by negatively

aecting the incentivization process. This inquiry is complex. Because BBNJ Treaty is expected

to be an improvement over UNLCOS, there is a need to understand the indirect organizational

discount hidden in the power structure of UNCLOS. For developing useful ocean governance,

this matters a lot. Till date UNCLOS regulates the activities in the Area and high seas (Articles 87

and 140 of UNCLOS). Therefore, while analysing BBNJ Treaty, understanding certain provisions

in UNCLOS related to such activities is of vital importance.

In this article, we explain why UNCLOS has failed to provide any practical solution to the

problem of commons. In that backdrop, we assess how far aspirations of nations to use and

exploit resources in the high seas have been shaped under the BBNJ Treaty. We argue that,

in general, participants have not done enough to advance a novel solution to the problem

of commons, and the expectation that lived throughout the negotiation stage has collapsed

short of developing an agreement, still shy enough to suciently modify the erstwhile sense

of state sovereignty or sovereign rights. However, this argument carries an essential rider that

conservation and management of common resources in international environmental law leave

less leeway for all nations irrespective of their positions in international politics. Hence, there is

a pressing need to revisit the pitch of negotiation to avoid any further ‘tragedy’ that already has

turned the high seas into a battleground for interest negotiation.

This Article is divided into seven parts. The rst part introduces the paper. The second part

opens with the theory advanced by Garrett Hardin. The idea is to get wind of the challenges

that exist in managing global commons. Part three discusses about the concept of state

sovereignty and variability in theories propounded by dierent scholars. The argument

establishes the connection with the previous Part by explaining the importance of state

consent in dening the scope of sovereign interests that sometimes work against collective

environmental interests. Part IV explains why UNCLOS as a treaty remains inadequate when

it comes to addressing high-seas conservation issues. The centrality of the debate here is

about the power structure of UNCLOS that inherently restricts the rigorous application of its

provisions towards the protection of common high seas resources. This power structure, as

this article emphasizes, is necessarily the outcome of compromise gradually shaped by the

diversely positioned states, many of which were reluctant to give away or accept something

detrimental to their narrow interests. Part V explores controversy over cooperative model