Imagine that a comparison of every global environmental accord was conducted. Is it possible that the following similarity would appear: they increasingly share the basic intent not to abuse international resources or, at least, not to let them fall into disrepair? If so, then it is conceivable that international environmental law supports a "planetary life tenancy". Because future generations have the most to lose from a degraded biosphere, they have the most to gain from legitimate planetary protection. And the planetary life tenancy offers a "Big Picture" of a developing, decentralized, international environmental order that might even quicken the pace of global environmental management.

This paper asserts that, as international environmental law evolves, it is taking on the recognizable shape of "maintaining and repairing" the global environment. Of course, human activity is degrading many portions of the oceans, atmosphere, and space at alarming rates; and these areas are often unregulated. Nevertheless, evidence is accumulating that international institutions have been effective and can "learn" to become more so.¹ But, can we learn fast enough to protect the interests of posterity?

This article comprises three sections. Section I reviews a planetary life tenancy and then sets the stage for our discussion by bifurcating international law into two types—"hard law" (eg, treaties) and "soft law" (eg, nonbinding resolutions). Section II examines prominent international "soft law" documents to ascertain if they establish general rights and duties toward the global commons and, if so, how these interests affect future generations. Section III examines a series of treaties to ascertain if international hard law advances specific rights and duties to manage the global environment and, if so, how these interests affect posterity’s prospects. Let us take a closer look.

According to Former Prime Minister Margaret Thatcher, "No generation has a freehold on the earth... All we have is a life tenancy—with a full repairing lease."² As I have argued elsewhere³, Lady Thatcher’s metaphor is literally correct. (The terms, planetary life tenancy and global commons life estate, are used interchangeably throughout this paper.) In order to see why this is so, let us examine planetary life tenancy’s common law antecedent.

A life estate is a legal arrangement when a person—known as the beneficiary or as the life tenant—has the right to use property for a specified time period.⁴ Life tenants have the right to access the property, "to use" it in any reasonable manner. In addition, a life estate carries duties—both positive and negative.

Positively, beneficiaries have the affirmative duty to maintain the property. At a minimum, this involves not letting the house and grounds fall into disrepair by providing basic maintenance and upkeep. Negatively, life tenants also face a prohibitive duty: they are restricted from doing things without owner’s consent that might irreparably change the property. These obligations can be aggregated as the duty "to maintain and repair" the property. Lastly, when a life estate ends, interests revert back to the property owners or their heirs. In this way, future interests receive adequate protection because the property is returned in a reasonably comparable condition.

How is this common law principle related to planetary management and future generations? The nexus of "rights to use" and "duties to maintain" the property held in a life estate is remarkably similar to humanity’s collective interest in the global commons. The planetary life tenancy argues that the rights to use international resources are constrained by the duties to maintain and repair them—again, in both positive and negative ways. Humanity has positive or affirmative duties to sustain the global commons’ quality by establishing institutions and agreements to regulate it. Further, because people lack the authority to irreversibly damage commons' functions, negative obligations prohibit certain acts deemed especially risky or harmful. In aggregate, these positive and negative obligations amount to the duty to maintain and repair the global commons.

But, unlike the limited-duration life estate in property, the planetary life tenancy protects posterity by remaining active in perpetuity. That is, future generations are cared for because the duty to maintain and repair the global environment is always operative. It is continuous and perennial.

While a planetary life tenancy may seem an appealing theory, the world is not so accommodating. One certainty is that international resources such as the climate mechanism and ocean fisheries are not being handed to the next generation in comparable conditions. One reason for this degradation is the structure of the international system. The Neorealists⁵ are at least partially correct in telling us that, because States are independent actors, the world order is one of anarchy.⁶ This is not bad, just different. One difference is that states often act with impunity as they degrade the global commons. As a result, the difficulty is not counting rights to use but rather establishing duties to maintain and repair. Against this backdrop of realpolitik forces, it seems improbable that international law advances the proposition of a planetary life tenancy? To argue in the affirmative as this paper does, it is necessary at least to demonstrate that international law articulates positive and negative duties to manage international resources.

In order to examine this claim, let us divide international law into two species—"hard law" and "soft law".⁷ Hard law refers to treaties that bind contracting sovereign States with specific, articulated obligations based on reciprocity. Soft law refers to a class of non-binding resolutions that reflects a general ‘consensus’ direction that the international community deems necessary. The two species are related. According to R.S. Pathak, a past Justice at the World Court in the Hague, it has become widely accepted that soft law has "...a significant status in the process of norm-making.⁸ And in fact, "[r]epeated observance of the suggested principles and rules [of soft law]... has prepared the way for the evolution, and subsequent adoption, of ‘hard law’." ⁹

Before examining specific instruments of international law, two points warrant attention.

First, this paper does not claim that the international treaties now in force even adequately protect the resources they respectively regulate. Second, although this article advances a strong (some might say, outrageous) proposition, it proves nothing. It merely offers the possibility that a common trait binds the seeming anarchy of the international environmental order. As such, the planetary life tenancy can be seen as a decentralized collective of world environmental affairs. Consequently, I must explicitly state that the global commons life estate is in no way a "conscious design" of planetary management. Rather, if it exists or is in the process of formation, it is the evolving aggregate of individual responses as the international community becomes more aware of its obligations towards the global commons and future generations.

Does international soft law enunciate general rights to use Earth’s nonsovereign resources that are coupled by duties to maintain and repair them? Let us highlight three prominent "soft law" documents—the Stockholm Declaration (1972), the World Charter for Nature (1982), and the Rio Declaration (1992).¹⁰ Elements from them point to rights and duties that promote a healthful environment generally and a global commons life estate particularly.

The Preamble of the Stockholm Declaration linked the enjoyment of a healthful environment with the right to life.¹¹ Because a dynamically stable biosphere is integral to a healthy environment, it is valid to infer that the right to a healthy global commons shares this way. The Declaration states that everyone has fundamental rights "...in an environment of a quality that permits [human] dignity and well-being."¹² The Rio Declaration adds, "[All people] are entitled to a healthy and productive life in harmony with nature."¹³ To be sure, these pronouncements enunciate only vague generalities. Yet the importance of soft law consensus is not how to immediately specify environmentally proper conduct but to influence international norm-making over time.

In addition to environmental rights, soft law instruments can be seen as focusing often on the obligations of a global commons life estate, stressing the duty to perpetuate the quality of the global environment. For instance, the Stockholm Declaration asserts that Homo Sapiens "...bears a solemn responsibility to protect and improve the environment for present and future generations."¹⁴ The World Charter for Nature acknowledged, "[Humanity]... must fully recognize the urgency of maintaining the stability and quality of nature and of conserving natural resources."¹⁵ The Charter continued: "Nature shall be respected and its essential processes shall not be impaired."¹⁶ Anticipating the notion of sustainable development, it elaborated: "Ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilized by man, shall be managed to achieve and maintain optimum sustainable productivity..."¹⁷

Moreover, the Rio Declaration included, "States shall also cooperate... to develop further international law regarding liability and compensation for adverse effects of environmental damage cause by activities within their jurisdiction or control to areas beyond their jurisdiction."¹⁸

Because a planetary life tenancy needs evidence of rights to use along with duties to maintain and repair the global commons, what can we conclude about international soft law? Although skeletal at best, soft law does articulate some general yet not particularly convincing principles that support a global commons life estate.

And what effects does this evidence have on future generations? Since the soft law’s regulatory force is best measured in decades and generations, we should not expect short-term environmental improvements from nonbinding pronouncements. Yet, as previously noted, international soft law has value as an end to guide the environmental dialogue and as a means of influencing the rules of treaty law. In turn, future generations should benefit as these ends and means gain from experience and frequency.

While international environmental "soft law" provides evidence of general rights and duties supporting a planetary life tenancy, does "hard law" or treaty law substantiate this view? A. A. Cancado Trindade, a law professor at the University of Brasilia, notes that an estimated 300 multilateral treaties and 900 bilateral treaties seek, in some way, to protect and to conserve the biosphere.¹⁹ By and large, the tremendous expansion of international environmental regulation has followed a "sectorial" approach that, Trindade continues, has led to conventions in "...certain sectors or areas, or concrete situations (e.g., oceans, continental waters, atmosphere, wildlife). In sum, international regulation... has taken place in the form of responses to specific challenges."²⁰

Let us examine a few "responses" that recognize rights and responsibilities in the global commons. By regulating certain activities, the duties are often explicit, and the rights are implicit. For example, the right to use the oceans in transporting commerce is an established legal principle,²¹ but a number of treaties have regulated its use. Although the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL, 1954) was largely symbolic, the International Convention for the Prevention of Marine Pollution from Ships and its amendments (MARPOL, 1973/78) have been effective, to varying degrees, in regulating numerous aspects of the intentional discharging of ship pollution into the oceans.²² From a life estate perspective, these treaties are taken, in part, as humanity exercising its right to use the High Seas while beginning to fulfill its duty to keep it from being unreasonably degraded. Similarly, the Convention on Climate Change (1992) can be seen as trying to balance the right to access the atmosphere's capacity to absorb carbon dioxide with the duty to maintain the quality of Earth's climate. In short, we at least are attempting to prevent the oceans and the atmosphere from falling into disrepair.

Along with positive duties to regulate the global commons, international law provides examples of fulfilling negative obligations of a biospheric life estate. That is, the world community has sought over the decades to prohibit certain activities perceived as particularly risky or harmful. In 1963, concern over the effects from atomic testing reached a critical mass; many nations agreed to the Treaty Banning Testing of Nuclear Weapons in the Atmosphere, in Outer Space, and Under Water.

By 1972, the awareness of discharging dangerous pollutants—such as mercury, cadmium, and high-level radioactive waste—into the oceans grew significant enough to halt many of these practices, which contracting nations did in the Ocean Dumping Convention. In 1987, sufficient scientific evidence had accumulated to prompt the Montreal Protocol—following the 1985 Vienna Convention and amended by the 1990 London Accord. This convention established international rules that included timetables and incentives as to how nations eliminate chemicals that deplete the stratospheric ozone layer.

Taken collectively, prohibitions in these treaties effecting the global commons represent the negative duties of a planetary life tenancy, obligations not to unduly restrict the options, quality, and access of humanity and future generations. Or, let us phrase it alternatively using the terminology of Princeton’s Michael Walzer: do not these prohibitions represent the "blocked exchanges" and thereby delineate the international environment’s "sphere of justice"?²³

It may be easier to see the proposition that a planetary life tenancy is developing by examining the aforementioned treaties not as isolated individuals but as fragmented components of a holistic yet "unconscious design". That is, international environmental treaties embody responses to specific challenges. In aggregate, these responses share a characteristic: they each reflect a specific area of global commons' rights and obligations. Together, they impart a greater coherency than when the diverse mix of multilateral environmental agreements are seen separately. This coherency gives us a look at the "Big Picture". Imagine that each "response" is a piece of a global jigsaw puzzle. Over the decades, the pieces have begun to take on a recognizable shape.

Obviously, the puzzle is not complete; not all its pieces are even formed. This condition should be expected. As Trindade notes, pursuant to the "sectorial" approach, "...it is not surprising that certain gaps appear, as awareness grows as to the increasing needs of protection."²⁴ One gap is enhanced international regulation on climate change and on the atmosphere.²⁵ Furthermore, formalizing our biospheric obligations is far different from fulfilling them. Nevertheless, enough pieces are in place for us to make out the fundamental feature of our planetary puzzle. It is a planetary life tenancy that, to adapt Thomas Jefferson’s comment about a nation’s resources, is passed "...free and unincumbered [sic], and so on successively, from one generation to another forever."²⁶

To be sure, I would be guilty of revisionist history to assert that these treaties demonstrated environmental intentions when economic and geopolitical considerations were responsible for the outcomes. But I do not make this claim. Still, it is fair to say, I believe, that environmental protection has acquired an increasingly prominent position at the diplomatic table, long dominated by economic competitiveness, national sovereignty, and global hegemony.

In addition, these instances of specific environmental rights and duties prove absolutely nothing. Nevertheless, they do provide evidence that should not be discarded as "insignificant". A case can be made that humanity has begun to realize the need not to let the biosphere fall into disrepair. Such maintenance encompasses future generations because the biospheric enterprise is an "ongoing concern" in which prudent managers seek to invest in the basic upkeep and repair, thereby securing its long-term health and productivity. Of course, moving from "enlightened" thought to practical improvements towards international environmental management has been arduous. It will continue to be so. Yet, research points in an optimistic direction.

For example, in Institutions for the Earth,²⁷ Professors Robert Keohane, Peter Haas, and Marc Levy identify three conditions—namely, "...high levels of governmental concern, a hospitable contractual environment..., and sufficient political and administrative capacity in national governments"—that significantly increase the effectiveness of international environmental regimes.²⁸ Importantly, interest groups, especially nongovernmental organizations, can play an active and productive role in international environmental law—from its formation through its implementation. Specifically Keohane, Haas, and Levy assert: "If there is one key variable accounting for policy change, it is the degree of domestic environmentalist pressure in major industrialized democracies..."²⁹

But, can we, the present generations, learn the "effectiveness" game fast enough to bestow appreciable benefits on the global environment of future generations? (Relatedly, an under-researched question is how international social institutions actually "learn"?³⁰) In my estimation, time will convincingly report in the affirmative. In any event, by making international institutions more effective, we should be able to speed up the processing-time in which humanity’s collective interest in the global commons comes into clearer focus. Then, the next generation will know whether the planetary life tenancy was a naive musing or an "unconscious design" of the international environmental order.

1 See Institutions for the Earth by Peter Haas, Robert Keohane, and Marc Levy. See also the conclusion (supra) and notes 27 through 30 (infra).

2 Lady Margaret Thatcher’s speech to the Conservative Party in October 1988. See Costing the Earth: The Challenge for Governments, The Opportunities for Business, by Frances Cairncross, Harvard Business School Press, Boston, 1992, 6.

3 See "Global Commons Life Estate" by James Perkaus in Future Generations Journal, Foundation for International Studies, University of Malta, June, 1995.

4 Black’s Law Dictionary. Sixth Edition. Nolan, Joseph R., and Jacqueline M. Nolan-Haley, West Publishing Co., St. Paul, Minn. 1990, 924.

5 For an informative discussion of what Neorealism is and is not, see Robert Keohane, "Realism, Neorealism and Study of World Politics," in Neorealism and Its Critics, Robert O. Keohane, ed, Columbia University Press, New York, 1986. I use the term, Neorealists, to refer to Kenneth Waltz and a diverse group of related scholars.

6 Waltz, Kenneth, N., "Anarchic Orders and Balances of Power" in Neorealism and Its Critics, Robert Keohane (ed.), Columbia University Press, New York, 1986, 98-122.

7 For a useful introduction to international environmental soft law, see the International Environmental Law and World Order by Lakshman D. Gurunswamy, Sr. Geoffrey W.R. Palmer and Burns H. Weston, West Publishing Company, Sr. Paul, Minn. 1994, 132-3. For a detailed analysis, see "Soft Law and the International Law of the Environment", 12 Michigan Journal of International Law, 1991, 420-435.

8 Pathak, R.S., "The human rights system as a conceptual framework for environmental law", in Weiss, Edith Brown, ed. Environmental Change and International Law: New Challenges and Dimensions, United Nations University Press, Tokyo, 1992, 238.

9 Ibid., 238.

10 The names of the documents are: The Stockholm Declaration of the United Nations Conference on the Human Environment (1972), The World Charter for Nature (1982), and The Rio Declaration on Environment and Development of the United Nations Conference on Environment and Development (1992).

11 Report of the United Nations Conference on the Human Environment, Stockholm, 1-16 June 1972. See also Pathak, op. cit., 218.

12 Ibid.

13 Principle Number 1, Rio Declaration on Environment and Development in Agenda 21: The United Nations Programme of Action from Rio, United Nations Department of Public Information, New York, 1992.

14 Principle Number 1, Stockholm Declaration of the United Nations Conference on the Human Environment, U.N., Doc. A/Conf. 48/14 (1972).

15 The World Charter for Nature.

16 Ibid., Principle Number 1.

17 Ibid., Principle Number 4.

18 Principle Number 13, Rio Declaration on Environment and Development in Agenda 21: The United Nations Programme of Action from Rio, United Nations Department of Public Information, New York, 1992.

19 Trindade, A.A. Cançado, "The contribution of international human rights law to environmental protection, with special reference to global environmental change", in Weiss, Edith Brown, ed. Environmental Change and International Law: New Challenges and Dimensions, United Nations University Press, Tokyo, 1992, 245.

20 Ibid., 246.

21 In the 16th century, Hugo Grotius held the day with mare liberum; the "freedom of the sea" principle still holds. See Black’s Law Dictionary. Fourth Edition. Henry Campbell Black and the Publisher’s Editorial Staff, West Publishing Co., St. Paul, Minn. 1951, 1119.

22 Mitchell, Ronald, "Intentional Oil Pollution of the Oceans", in Institutions for the Earth, Peter Haas, Robert Keohane, and Marc Levy (eds.), MIT Press, Cambridge, Mass., 1993, 183-248.

23 Walzer, Michael, Spheres of Justice: A Defense of Pluralism and Equality, Basic Books, 1983, 97,103. See also Chapter 1 of Equality and Efficiency by Arthur Okun.

24 Trindade, A.A. Cançado, "The contribution of international human rights law to environmental protection, with special reference to global environmental change", in Weiss, Edith Brown, ed. Environmental Change and International Law: New Challenges and Dimensions, United Nations University Press, Tokyo, 1992, 246.

25 Ibid.,246.

26 To John Wayles Eppes, 24 June 1813, The Works of Thomas Jefferson, VOL. XI, edited by Paul Leicester Ford, New York: G. P. Putnam’s Sons, 1904, 298. For a progressive analysis of how Jefferson’s concept might apply to environmental management, see Policy for Land: Law and Ethics by Lynton Keith and Kristin Shrader-Frechette, Rowman & Littlefield Publishers, Inc. Lanham, Maryland, 1993, especially Chapter 5.

27 The authors use the term institutions to mean "...persistent and connected sets of rules that prescribe behavioral roles, constrain activity, and shape expectations. They may take the form of bureaucratic organizations , regimes (rule-structures that do not necessarily have organizations attached), or conventions (informal practices)." See Robert Keohane, Peter Haas and Marc Levy, "The Effectiveness of International Environmental Institutions", in Institutions for the Earth, Peter Haas, Robert Keohane, and Marc Levy (eds.), MIT Press, Cambridge, Mass., 1993, 4-5.

28 Ibid., 11.

29 Ibid., 14.

30 Keohane, Robert, Peter Haas and Marc Levy, "Improving the Effectiveness of International Environmental Institutions", in Institutions for the Earth, Peter Haas, Robert Keohane, and Marc Levy (eds.), MIT Press, Cambridge, Mass., 1993, 408-419.