1. INTRODUCTION
The present arising danger of climate change due to increasing environmental hazards as a result of human activities and a global economic recession recently occurred caused by the pandemic and the conflict between Russia and Ukraine spotlighted more than ever that the efficient utilization of resources is substantial for civilization to survive. Humanity strives to maintain the comfort and wealth provided by technological and industrial developments while noticing the necessity to transform conventional methods into sustainable techniques since it has failed them so far. In this regard, Hardin's dilemma remains significant in our endeavour for an innovative approach to the issue.
This article will be divided into three parts to be assessed under the following issues. First, what is Hardin's dilemma that is manifested in the "Tragedy of the Commons"? Second, the existing regulations on the transboundary harm principle within the scope of geoengineering activities. Third, which steps should be taken to avoid transboundary disputes in the future to protect “Climate” as a common good considering Hardin's theory? This research seeks to question whether Hardin's dilemma offers solutions to contemporary transboundary disputes and aims to envisage a functioning legal system for the protection of the commons.
2. HARDIN'S VISION OF THE JOURNEY TOWARD DOOM.
An allegory of a pasture opens to all, where herders could graze their animals without restrictions is projected in the Tragedy of the Common. Hardin suggests that each herder will try to increase their cattle number as much as possible to maximize their gains. According to Hardin, this will lead to overgrazing and eventually to the complete depletion of that common resources. Individuals are presumed to act in this way with pragmatic incentives since they may think that the benefits obtained from exploitation are exclusive to themselves, while the negative impacts are spread to the community as a whole.[1] It has been argued that any technical remedy to address this issue is inadequate, due to the constantly increasing human population, which is at the core of the tragedy. In this framework, two basic solutions are determined, which envisage the allocation of resources to an organization[2] and limit the freedom of reproduction.[3]
The primary arguments expressed by Hardin have been criticized for several reasons by various pieces of research over time. One issue pointed out in that direction is, Hardin constructed his argument based on presumptions about human nature.[4] Another criticism is that Hardin inaccurately defined the common as a concept due to a historical misconception and this results in the exclusion of cultural and political dynamics.[5] However, certain essential points have been made by Ostrom. As Ophuls later supported it with the idea of Leviathan,[6] without supervisory intervention, common goods were destined to be extinct, this projection of a hopeless future is not allowing any remedies other than promoting an external force to restrict the right to breed and allocate common resources to an organization. This idea founded on distrust of humanity may direct the world to seek centralized regimes.[7]
Hardin's proposed remedies for the tragedy of the commons fail to account for the significance of incorporating traditional knowledge and practices of local and indigenous communities,[8] as well as the substantive value of indigenous knowledge, which is also emphasized by Wall Kimmerer.[9] Hardin's critique of technical solutions to the tragedy of the commons is largely unsupported by empirical evidence.[10] This mode of reasoning may be considered insufficiently persuasive and lacking in rigour within academic circles given that contrary ideas are constructed on solid bases, promoting technological developments for renewable energy to maintain sustainable economic order.[11] Although Hardin responded to some critiques of his original essay by elaborating on his earlier arguments and proposing new solutions to address the issues of overpopulation and resource consumption,[12] the basic concept of the tragedy of the commons remained largely unchanged. Nevertheless, the "Tragedy of the Commons" remains relevant for transboundary disputes, as it highlighted persistent concerns over the use of natural resources and emphasized the lack of certain legal protection for the commons.[13]
3. GEOENGINEERING AND TRANSBOUNDARY HARM PRINCIPLE: CLIMATE AS A COMMON GOOD.
"The climate is a common good, belonging to all and meant for all.”[14] This statement can be considered for a moment as an academic disclosure. In fact, it has been expressed by a religious authority Pope Francis in 2015. Nevertheless, the assessment of climate as a common good in a legal document goes way back as set out in the third article of the United Nations Framework Convention on Climate Change, entitled principles.[15] Since then, the protection of the climate gradually became a more debatable topic. The issue has two dimensions. Effects of the increasing threat of climate change become more evident, for example on water resources,[16] agriculture,[17] and human health[18] forcing us to search for technological solutions. However, the possible risks and benefits of climate engineering activities, such as Stratospheric Aerosol Injection, remain uncertain.[19] SAI aims to reduce the negative effects of greenhouse gas emissions by injecting aerosol into the atmosphere to increase the reflection of sunlight, so it can mimic the natural function of a volcanic eruption.[20] However, several potential risks of it pointed out, for instance, it may cause ozone depletion[21] and stratospheric heating,[22] and uncertain climatic consequences[23].
Similar technological projects are applications that are effective on a global scale and therefore have global consequences. Possible damages as a result of these activities may constitute a violation of the transboundary harm principle.[24] Transboundary harm is an engrained environmental law principle, that obliges countries to prevent causing damage to the areas beyond their territorial limits.[25] This principle can be traced back to the Trail Smelter case where it has been determined by the Tribunal Court that, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons.[26]
Few international legal sources directly regulate transboundary consequences of climate modification so far. However, we can address relevant multilateral international agreements to define responsibilities and legal remedies for the transboundary consequences of geoengineering activities.[27] Article 3 of the UNFCCC assigns active responsibility to the parties to protect the climate system.[28] COP 10 Decision X/33 of the Convention on Biological Diversity, complementary to article 3 in terms of climate engineering regulations. States that, "No climate-related geoengineering activities that may affect biodiversity take place until there is an adequate scientific basis on.”[29]Nonetheless, the enforceability of this regulation may be controversial considering the precautionary approach. Resolution LP.4(8) of the London Protocol is another document that regulates ocean fertilization activities and other marine geoengineering activities in a science-based global, transparent, and effective way.[30] Also, Burns claimed that the Paris Agreement[31] implicitly provides protection from a human rights perspective[32].
4. “WE THE PEOPLE”, TO DEFEAT THE TRAGEDY.
Hardin argued coercive laws should be implemented to preserve commons.[33] International environmental law struggled to enforce multilateral regulations for various reasons so far. Concerns arising from geoengineering may provide the compelling element we need to address this issue. Although there has been no international conflict stemming from climate engineering yet, technological research in this field is increasing rapidly and problems are commencing to appear. One example is, Mexico recently announced new measures to prohibit solar geoengineering tests in the country, following an experimental program launched by a US startup.[34]
Previously, transboundary harm pollution spawned a conflict at the regional level on the protection of other common goods. Regardless of whether we decide to initiate geoengineering programs or not, countries will be forced to take collaborative actions when environmental breakdown is imminent. The consensus at the global scale to deal with it, is indispensable, unlike other transboundary harm disputes. This may provide legitimacy for coercive laws to demand nations compromise their sovereignty. Eventually, it can be argued that international environmental law must establish a coercive unifying organization that is sovereign over member countries and able to impose its common regulations, as Ophuls suggested centralism as a remedy by extending Hardin’s ideas.[35] However, on a national scale, such an approach did not yield positive results in terms of solving environmental problems in China for instance. Despite having absolute authority and introducing various environmental regulations, the state has not been able to solve serious air pollution problems.[36]
An alternative solution may be to invite people to be knowledgeable about environmental issues and take action. Aarhus Convention determined three objectives called “pillars” to achieve this purpose[37] which are access to information, public participation, and access to justice.[38] The European convention on human rights is another international treaty that allows individuals to seek legal protection on environmental values,[39] has brought solid shreds of evidence that many people are aware of the consequences of ambitious exploitation of nature and are sensitive enough to pursue a way of living in harmony with it, contrary to Hardin’s assumption about human nature. Accelerating procedural processes and reducing costs by establishing and promoting new alternative dispute-resolution mechanisms[40] can be an important step in increasing incentives in this direction.
In conclusion, climate change and climate engineering controversies can form the basis of legitimacy for creating enforceable transboundary regulations and international organizations in the future due to its sui generis relationship to transboundary disputes. In such a case, countries will have to compromise their sovereignty to work cooperatively. However, a top-down mentality suggested by Hardin should be avoided since the laws enacted with centralist and oppressive methods proved to be unsuccessful. Therefore, empowering mechanisms that ensure public participation should be promoted. Contrary to Hardin’s view of a system based on distrust of people, a system that seeks solutions in people may be a promising approach for the future.
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[1]Erin A. Clancy, 'The Tragedy of the Global Commons' (1998) 5(2) Indiana Journal of Global Legal Studies 601.
[2] Brett M. Frischmann, Alain Marciano, and Giovanni Battista Ramello, 'Retrospectives: Tragedy of the Commons after 50 Years' (2019) 33(4) Journal of Economic Perspectives 211.
[3] Garrett Hardin, 'The Tragedy of the Commons' [1968] 162 Science, no. 3859: 1243, 1246.
[4] National Research Council, Division of Behavioral and Social Sciences and Education, Committee on the Human Dimensions of Global Change, Elke U.Weber, Susan Stonich, Paul C. Stern, Nives Dolsak, Thomas Dietz, Elinor Ostrom, The Drama of the Commons, (National Academies Press 2002) 3.
[5] Susan Jane, Buck Cox, 'No Tragedy of the Commons' (1985) 7 Environmental Ethics 49.
[6] William Ophuls, 'The Return of Leviathan' (1973) 29(3) Bulletin of the Atomic Scientists.
[7] Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990) 8-9.
[8] Vandana Shiva, Staying Alive: Women, Ecology and Development (Zed Books 1989) 76
[9] Robin Wall Kimmerer, Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and the Teachings of Plants (Milkweed Editions 2013)
[10] Hardin (n 3)
[11] Herman E Daly, Steady-State Economics: Second Edition with New Essays (1991).
[12] Garrett Hardin, 'Commentary: Living on a Lifeboat' (1974) 24 BioScience 561
[13] David Feeny, Fikret Berkes, Bonnie J McCay, and James M Acheson, 'The tragedy of the commons: twenty-two years later' (1990) 18(1) Human Ecology: An Interdisciplinary Journal 1.
[14] Jorge Mario Bergoglio, Encyclical Letter Laudato Si: On care for our common home (2015) <http://w2.vatican.va/content/francesco/en/encyclicals/documents/papa-francesco_20150524_enciclica-laudato-si.html> accessed 7 March 2023 [23].
[15] United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 Mar 1994) 1771 UNTS 107.
[16] Nigel W Arnell and Ben Lloyd-Hughes, “The Global-Scale Impacts of Climate Change on Water Resources and Flooding under New Climate and Socio-Economic Scenarios” (2013) 122 Climatic Change 127
[17] Gurdeep Singh Malhi, Manpreet Kaur and Prashant Kaushik, 'Impact of Climate Change on Agriculture and Its Mitigation Strategies: A Review' (2021) 13 Sustainability 1318 <http://dx.doi.org/10.3390/su13031318>.
[18] Jonathan A Patz and Madeleine C Thomson, “Climate Change and Health: Moving from Theory to Practice” (2018) 15 PLOS Medicine e1002628 <http://dx.doi.org/10.1371/journal.pmed.1002628>.
[19] Aaron Tang and Luke Kemp, “A Fate Worse Than Warming? Stratospheric Aerosol Injection and Global Catastrophic Risk” (2021) 3 Frontiers in Climate <http://dx.doi.org/10.3389/fclim.2021.720312>
[20] Jadwiga H Richter and others, “Assessing Responses and Impacts of Solar Climate Intervention on the Earth System with Stratospheric Aerosol Injection (ARISE-SAI): Protocol and Initial Results from the First Simulations” (2022) 15 Geoscientific Model Development 8221 <http://dx.doi.org/10.5194/gmd-15-8221-2022>.
[21] Khara D Grieger and others, “Emerging Risk Governance for Stratospheric Aerosol Injection as a Climate Management Technology” (2019) 39 Environment Systems and Decisions 371 <http://dx.doi.org/10.1007/s10669-019-09730-6>.
[22] AJ Ferraro, EJ Highwood and AJ Charlton-Perez, ‘Stratospheric Heating by Potential Geoengineering Aerosols: Heating by Geoengineering Aerosols’. Geophysical Research Letters 38, no. 24 (2011). http://dx.doi.org/10.1029/2011GL049761.
[23] Simone Tilmes and others, “CESM1(WACCM) Stratospheric Aerosol Geoengineering Large Ensemble Project” (2018) 99 Bulletin of the American Meteorological Society 2361 <http://dx.doi.org/10.1175/bams-d-17-0267.1>.
[24] Kerryn Brent, Jeffrey McGee and Amy Maguire, “Does the ‘No-Harm’ Rule Have a Role in Preventing Transboundary Harm and Harm to the Global Atmospheric Commons from Geoengineering?” (2015) 5 Climate Law 35 <http://dx.doi.org/10.1163/18786561-00501007>.
[25] Marte Jervan, “The Prohibition of Transboundary Environmental Harm: An Analysis of the Contribution of the International Court of Justice to the Development of the No-Harm Rule” (2014). PluriCourts Research Paper No. 14-17, 4-6.
[26] Trail Smelter Arbitration (United States v Canada) (1941) 3 RIAA 1905
[27] David Reichwein, Anna-Maria Hubert, Peter J. Irvine & Francois Benduhn, “State Responsibility for Environmental Harm from Climate Engineering” (2015) 5 Climate L 142, 152
[28] UNFCCC (n 15) art 3.
[29] Conference of the Parties to the Convention on Biological Diversity, 'Biodiversity and climate change' (Decision X/33, 29 October 2010) UN Doc UNEP/CBD/COP/DEC/X/33.
[30] Resolution LP.4(8), on the Amendment to the London Protocol, to Regulate the Placement of Matter for Ocean Fertilization and Other Marine Geoengineering Activities (Adopted 18 October 2013)
[31] Paris Agreement, (adopted 12 December 2015, entered into force 4 November 2016) 55 UNTS 175
[32] William C.G. Burns, 'The Paris Agreement and Climate Geoengineering Governance: The Need for a Human Rights-Based Component' (2016) CIGI Papers No. 111
[33] Hardin (n 3) 1245
[34] Sebastian Rodriguez, Joe Lo, 'Mexico plans to ban solar geoengineering after rogue experiment' (Climate Change News 18 January 2023) <https://www.climatechangenews.com/2023/01/18/mexico-plans-to-ban-solar-geoengineering-after-rogue-experiment> accessed 10 March 2023.
[35] David W. Orr, Stuart Hill, ‘Leviathan, the Open Society, and the Crisis of Ecology’ (1978) 31(4) The Western Political Quarterly 457.
[36] Weibing Li and Yongwen Yang, “Can Environmental Centralization Help Reduce Pollution? Evidence from an Administrative Reform in China” (2021) 314 Journal of Cleaner Production 127972 <http://dx.doi.org/10.1016/j.jclepro.2021.127972>.
[37] Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, (Adopted 25 June 1998 entered into force 30 Oct 2001) 2161 UNTS 447
[38] Michael Mason, 'Information Disclosure and Environmental Rights: The Aarhus Convention' (2010) 10(3) Global Environmental Politics 10.
[39] Convention for the Protection of Human Rights and Fundamental Freedoms, (Adopted 4 November 1950 entered into force 3 September 1953) 213 UNTS 221.
[40] Nuraisyah Chua Abdullah, “Going Green in Urbanisation Area: Environmental Alternative Dispute Resolution as an Option” (2015) 170 Procedia - Social and Behavioral Sciences 401 <http://dx.doi.org/10.1016/j.sbspro.2015.01.050>.
