Species, scarcity and the secular state
Biodiversity is our common heritage, or common concern.2
What a welcoming phrase. It resonates with inclusiveness, protectiveness and amity on a grand scale. It weighs heavily with an invocation of responsibility to inheritance – to our inheritance, as a global community that produces life in our own name. It calls our greater selves to a single concern and a singular cause.
While biodiversity conservation treaties and protection plans abound, however, we are currently in the throes of a mass-extinction crisis. More than 17,000 plants and animal species are threatened because of human activity, and this number is set to increase sharply as climate change continues, rivaling past mass extinctions.3 The Convention on Trade in Endangered Species of Wild Fauna and Flora (‘CITES’), and the Convention on Biological Diversity (‘CBD’) are two key legally binding instruments that purport to preserve animal life. The mechanisms they establish, however, fall far short of their promises, failing against any measure to halt large-scale biodiversity loss.4 ‘Lack of political will’ is usually cited as the greatest obstacle to the protection of biodiversity and endangered species, and in a recent circular the CBD Conference of the Parties cites lack of ‘ownership’, resources, technical capacity, measurable targets, monitoring and implementation as additional reasons for failure.5
This chapter queries whether those reasons are indeed the cause of a failure to protect plants and non-human animals. Through an analysis of the term ‘common heritage’ and of the above-mentioned Conventions, it proposes a different way of thinking about the rhetoric of animal protection in the international domain. The first section, ‘Res omnium communes, res extra commercium’ looks at how the term ‘common heritage’ purports to subsume the Roman law categories of ‘things held in common’ (res omnium communes) and ‘things outside of commerce’ (res extra commercium). I suggest that the concept of ‘common heritage’ in fact does away with this latter category of non-tradable (or sacred) life altogether. The second section, ‘Species and scarcity’, examines how this doing away is carried out by CITES and the CBD, arguing that those conventions in fact enable the commodification of all remaining animal life that has not already been domesticated, functioning to move it entirely into the sphere of human commerce. The third section, ‘A common heritage’, looks at what relation this may have to the modern state, since states are the primary actors in the conquest of non-human life through the creation of international environmental law.
Res omnium communes, res extra commercium
International environmental law stories usually begin around the 1960s, with the inception of the environmental movement in the global north. Let me begin somewhat earlier, in the sixteenth century, with the separation of church and state in Western Europe. There is an extensive history here that is in large part beyond the scope of this chapter; suffice to say that at that time early modern lawyers were moving on from the medieval problem of dominium as a matter of theocentric natural law, to a modern conception of a law that had human reason as its authorising force in relation to the colonial appropriation of resources.6
One such scholar, Francisco de Vitoria, proposed that divinely created natural law merely recommended, rather than prescribed, common ownership of resources, and that this did not prevent humans from propertising things by consensus amongst themselves.7 This human-made natural law was ‘enacted by “[t]he whole world which is in a sense a commonwealth” – a kind of universal positive law…’.8 Such propertisation by consensus did, however, need to be controlled, and to that end Vitoria distinguished between two kinds of propertisation and exchange: ‘natural’ exchanges, on the one hand, the purpose of which was to see to the good of the household, and on the other, ‘artificial’ exchanges, whose aim was to produce profit. The former, he argued, were just and lawful but the latter involved, quote, ‘great danger for the soul’.9
Great danger for the soul. One way in which those jurists proposed to stave off the existential threat posed by human commerce was to attach religious prohibition to trade in certain things and forms of life. This prohibition, drawing on the Roman law category ‘res extra commercium’, accrued to res nullius (things belonging to no-one, including wildlife, the seabed, and space), res sanctae (sacred things, including churches and graves), and res publicae (things owned by the state for the public good, such as city walls and public squares). In effect, this allowed for some trade in earthly goods, but ensured a sacred and public domain that lay outside of human commerce and within a divine jurisdiction.
The term ‘res extra commercium’ resurfaced in the late 1960s, where in establishing an international environmental law regime lawyers considered the adoption of two Roman law concepts, res omnium communes and res extra commercium, to designate life beyond the jurisdiction of the sovereign state.10 In light of an emerging postcolonial ethos, the first term (res omnium communes), was deemed too closely associated to a colonial era when the great powers monopolised access to resources in the global south. By apparent analogy with the second term, res extra commercium – in translation, ‘common heritage’ – was chosen to describe the air, outer space, the sea bed and wild flora and fauna beyond the limits of national jurisdiction.11 To this day, ‘common heritage of mankind’ has dominated the international scene as the primary term describing the regulation of these resources through a sui generis regime.
This term, however, effectively reinscribes the global environment as the heritage of humankind. Non-human life common-heritage, in other words, becomes tradable, consumable, stripped of religious prohibition. On its face the term ‘common heritage’ invokes a postcolonial utopia of a united humanity committed to the care of a world without borders. In operation, however, it leaves nothing to the category of res extra commercium in its original sense. To demonstrate this, the following section examines two international agreements that regulate animals as ‘common heritage’.
Species and scarcity
The 1975 Convention on International Trade in Endangered Species of Flora and Fauna (‘CITES’) and the 1993 Convention on Biological Diversity (‘CBD’) are two key multilateral instruments that purport to preserve biodiversity and endangered species. First, a brief description of both:
CITES is a regulatory pre-Rio Convention, overseeing trade in the import and export of listed species through a system of licensing authorisation. The listed species in question are nominated by Parties to the Convention, vetted by Scientific Authorities and then placed in one of three Annexes (ranked according to risk of extinction). CITES’ Objectives recognise that ‘wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come’, and the Preamble states that Parties are ‘Conscious of the ever-growing value of wild fauna and flora … recognizing … that international co-operation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade.’ Article 3 sets out the requirements for the export of any specimen of a species, which includes authorisation by a Scientific Authority of the State of export (to ensure that it would not be detrimental to the survival of that species) and a Management Authority of the State of Export (to ensure that the specimen was obtained legally, has an import permit). CITES requires Parties to ensure that ‘specimens shall pass through any formalities … with a minimum of delay’.12