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THE COMMON HERITAGE OF MANKIND: A BOLD DOCTRINE KEPT WITHIN STRICT BOUNDARIES
By Prue Taylor The “common heritage of mankind” is an ethical concept and a general concept of international law. It establishes that some localities belong to all humanity and that their resources are available for everyone’s use and benefit, taking into account future generations and the needs of developing countries. It is intended to achieve aspects of the sustainable development of common spaces and their resources, but may apply beyond this traditional scope. When first introduced in the 1960s, the “common heritage of mankind” (CHM) was a controversial concept, and it remains so to this day. This controversy includes issues of scope, content and status, together with CHM’s relationship to other legal concepts. Some commentators consider it out of fashion due to its lack of use in practice, e.g., for mining of seabed resources, and its subsequent rejection by modern environmental treaty regimes. In contrast, other commentators consider it a general principle of international law with enduring significance. Escalating global ecological degradation and ongoing inability to arrest the socalled tragedy of the commons (Hardin 1968) will ensure the continued relevance of the common heritage concept, despite the difficulties surrounding its acceptance by states. Evidence for this can be found in a range of efforts to apply CHM to natural and cultural heritage, marine living resources, Antarctica and global ecological systems such as the atmosphere (Taylor 1998) or climate system.
ORIGINS OF THE PRINCIPLE Legal discussion of CHM generally begins with the speech of the Maltese ambassador Arvid Pardo (1914–1999) to the United Nations in 1967. and Pardo drew upon this in developing CHM as a legal concept for the oceans. for present and future generations. including the writer and environmentalist Elisabeth Mann Borgese (1918 – 2002) considered CHM an ethical concept central to a new world order. economic theory and philosophy. which governs state exploration and use of outer space.N. for military and peaceful purposes. e. A 1948 draft World Constitution provided that the Earth and its resources were to be the common property of mankind. This was an important event that triggered the later negotiation of the 1982 Law of the Sea Convention (UNCLOS III) and other legal developments that subsequently earned Arvid Pardo the title “father of the law of the sea. based on new forms of cooperation. managed for the good of all. Other people. This history is important to elucidating the ethical core of CHM: the responsibility of humans to care for and protect the environment. REVOLUTIONIZING THE LAW OF THE SEA Concern about the impact of new technologies upon the oceans. The 1967 World Peace through Law Conference referred to the high seas as “the common heritage of mankind” and stated that the seabed should be subject to U. militarization and expanding state claims to ownership of parts of the oceans. of which we are a part. and other celestial bodies.” But CHM has a much longer history. CHM. jurisdiction and control. and not owned by any one state. continental shelf and exclusive economic zones. In this speech he proposed that the seabed and ocean floor beyond national jurisdiction be considered the CHM.g. Outer Space Treaty (1967). Concern about the use of nuclear technology and resources. also led to an early proposal that nuclear resources be collectively owned and managed. achieved prominence in the context of the evolving law of the sea.N. the moon. however. Traces of CHM are also found in the U.. together with growing economic disparity .
but its use would be subject to international administration and management for the common good of all humanity.. This approach recognized the unity of the oceans as ecological systems and rejected both laissez-faire freedom and unfettered state sovereignty. But in 1967 Arvid Pardo recognized that this would be rejected by the powerful states who were attempting to extend their sovereign claims to more ocean space and resources. developed by the Dutch jurist Hugo Grotius (1583– 1645). The CHM was originally intended as a concept that would revolutionize the law of the sea by applying to all ocean space and resources. (Areas with significant natural resources that are acknowledged to be beyond the limits of the national jurisdiction of sovereign states are known as international commons. ocean space and its resources would be a commons that could not be owned by states beyond a certain limit.e.and associated harm to long-term human security. should be declared the CHM. water column. It included efforts to simplify ocean jurisdiction by establishing one single line of demarcation between national and international ocean space (Draft Ocean Space Treaty of 1971) and prevent gradually expanding claims to national jurisdiction. surface of the sea. As a commons it would be open to the international community of states. as the CHM. states would regulate and manage use on behalf of all mankind. and living resources. seabed and its subsoil. The intention was to replace the outdated legal concept of “freedom of the high seas” by proclaiming ocean areas an international commons. By focusing on the legal status of the much more limited entity of the “seabed” . In contrast. not solely for the benefit of national interests. Where areas of ocean space and resources existed within national jurisdiction. creates an open access regime allowing for its laissez-faire use. irrespective of existing claims to national jurisdiction. The few restrictions that exist serve only to protect the interests of other states and their exercise of free use. i.) Freedom of the high seas. prompted Arvid Pardo to develop the idea that all ocean space.
The ISA must ensure the equitable sharing of financial and other benefits arising from activities in the Area.N. with the International Seabed Authority (ISA) acting on mankind’s behalf (Article 140).N. it was thought that CHM could gain an important foothold within the U. All rights to resources belong to mankind as a whole.. system.” Despite this . hence Pardo’s view that CHM was reduced in its application to “ugly little rocks lying in the darkest depths of all creation. sitting on the bottom of the deep seabed.N. UNCLOS III restricted the application of CHM to a few rocks. thus the intended revolution of the law of the sea was not achieved. The 1967 Maltese proposal lead to a number of important developments. including the 1970 U. Article 136 declares the Area and its resources (only) to be the “common heritage of mankind.g. As will be explained immediately below. Beyond the Limits of National Jurisdiction. The ultimate outcome was a much more limited application of CHM than ever intended by its advocates. the most commercially viable mineral resources of the Area were thought to be manganese nodules. e. Part XI of UNCLOS III deals with the seabed and ocean floor and subsoil thereof (the “Area”) beyond the limits of national jurisdiction. It does not generally replace the freedom of the high seas (Part VII). or owned by any state or person (Article 137). Promotion of research.beyond national jurisdiction. Part XI provisions create an international administration and management regime for only a small part of the international commons (the Area and its resources). taking into particular account the needs and interests of developing states and others. appropriated. and it helped create consensus for the negotiation of a new law of the sea convention: UNCLOS III (U. transfer of technology to developing states and protection of the marine environment’s ecological balance are all important functions of the ISA (Articles 143–145). General Assembly Declaration of Principles Governing the Sea-Bed and the Ocean Floor and the Subsoil Thereof.” The Area and its resources cannot be claimed. In the 1970s. This declaration set out the legal principles needed to implement the notion that the seabed and its resources are the CHM. mineral resources such as manganese nodules. Convention on the Law of the Sea).
Its features depend upon the details of the regime applying it or the space/resource to which it is applied. . including provision for equitable benefit sharing. nevertheless it has been used to reject claims to property rights on the basis that it creates a general principle of law. Disputes concerning the details of an international system for resource exploitation. Further. CORE ELEMENTS There is no concise. applicable to the whole of the international community and not just states that ratified the treaty. exercise of sovereignty is subject to certain responsibilities to protect the common good. the traditional fragmented approach to jurisdiction over separate elements of ocean space and resources endures despite the irrefutable unity of ecological systems. To date. They can be used but not owned. however: • No state or person can own common heritage spaces or resources (the principle of non-appropriation). This protects the international commons from expanding jurisdictional claims. commercial use of the Area and its resources has not occurred. the use of CHM was revolutionary enough to be one of the reasons why the US refused to adhere to UNCLOS III. were resolved by deferring the details of a management regime for the future. 1979 MOON TREATY Even though aspects of CHM appeared in the 1967 Outer Space Treaty. a treaty to govern exploration and exploitation of the moon’s resources. When CHM applies to areas and resources within national jurisdiction. Article 11(1) declares that the moon and its natural resources are the CHM. The Moon Treaty has been ratified by only a few states.serious limitation. it was not until 1979 that a clear statement appeared in the Moon Treaty. as they are a part of the international heritage (patrimony) and therefore belong to all humankind. There are a number of core elements. fully agreed upon definition of CHM.
it has long been recognized that the precedent established for oceans management has the potential to form the basis for the future organization of an increasingly interdependent world. One overriding issue concerns the extent to which CHM can prevent further fragmentation and privatization of the commons (or enclosure) and replace this . In recent years. It is recognized as articulating many key components of sustainability. This has been interpreted as creating a type of trustee relationship for explicit protection of the interests of humanity. and scientific) derived from the CHM. Further. irrespective of where they are situated. This provides a basis for limiting public or private commercial benefits and prioritizing distribution to others. these core elements have ensured that CHM remains central to the efforts of international environmental lawyers. CHM shall be transmitted to future generations in substantially unimpaired condition (protection of ecological integrity and intergenerational equity between present and future generations of humans).e. it questions the regimes that apply to resources of global significance. as well as the allocation of planetary resources and consent-based sources of international law (Baslar 1997).• The use of common heritage shall be carried out in accordance with a system of cooperative management for the benefit of all humankind. for the common good. • • CHM shall be reserved for peaceful purposes (preventing military uses). i. It therefore challenges traditional international law concepts such as acquisition of territory. and international personality. There shall be active and equitable sharing of benefits (including financial.. sovereign equality. as one commentator describes. This is because. technological. sovereignty. including developing states (intragenerational equity between present generations of humans). rather than the interests of particular states or private entities. SOME CONTROVERSIES Controversies surround virtually all elements of CHM.
for example.. Developing states rejected the use of CHM in the 1992 U. in favor of protection of commercial interests. rainforests and their flora and fauna. They were suspicious of interference under the guise of environmental protection or via the acquisition of intellectual property rights. which requires the sharing of financial. property rights. geostationary orbit.trend with more communitarian values and legal protection of the common good. The equitable utilization element (or equitable benefit sharing). genetic resources (the genetic material of plants.g. exploitation by private enterprise conducted under licensing arrangements.” The original Maltese proposal was for a treaty declaring the global climate system as a part of the CHM.N. e. The 1994 Implementation Agreement (amending UNCLOS III.N.N.. animals and life forms. has also proved divisive especially between developed and developing states and corporate actors. perceiving it as a potential threat to their sovereign rights to use and benefit from biological resources within their own territories. to achieve economic and environmental benefits. e. treaty regimes for climate change and for conservation of biological diversity. the Arctic landscape. Antarctica. but this was rejected. There is a wide divergence of views on whether the core element of nonappropriation prevents CHM from applying to globally significant spaces and resources that exist within the sovereign territory of states. EXTENDED APPLICATIONS Over the years CHM has been applied to a range of resources and spaces: fisheries.g. Developed states and commercial interests see this element as a potential impediment to investment and the use of market incentives. that are of value). and . Convention on Biological Diversity. The 1992 U. The impact of these and other issues saw CHM rejected as a concept to guide U. technological. and scientific benefits of use of the CHM. Framework on Climate Change refers to the problem of climate change as being the “common concern of humankind. They favor. Part XI) was generally viewed as having eroded the distributive elements of the original regime. Developing states tend to view this element of CHM as pivotal to the achievement of distributive justice.
that are internationally important for the well-being of future generations” (Weiss 1989. the United Nations Educational. Although difficult to define. CHM provides the only current alternative to either freedom of use by all states or the acquisition and exercise of sovereign rights. FUTURE OUTLOOK In the short term and from the perspective of state practice and treaty negotiation.g. Scientific and Cultural Organization (UNESCO) has robustly supported CHM through a wide range of initiatives. conventions. CHM is also relevant to the wider debate on transforming the role of the state . In the context of the oceans. declarations. It also recognizes the interdependence of ecosystems and acknowledges human use. language. it is possible to argue that the Earth itself is a global commons shared by each generation and that CHM should “extend to all natural and cultural resources. Taylor 1998). that recognize natural and cultural heritage as the CHM. This may prevent the patenting of the human genome by corporate interests. One new area of potential application is the human genome.. In recent years. “natural and cultural heritage” includes tangible and intangible elements.basic food resources. wherever located. In an ecological and generational context. International lawyers tend to treat its use – beyond the UNCLOS III and Moon Treaty – as merely political and aspirational. ranging from archaeological sites and historic monuments to cultural phenomena (such as literature. biosphere reserves and deserts. Issues that will shortly test the commitment of states to CHM include the status of marine living resources (of the “Area” and high seas). It therefore has much in common with ecosystem management approaches that aim to move away from piecemeal resource-specific management regimes. e. and customary practices) and natural systems including islands. claims to the seabed under the melting Arctic ice. and the status of oil reserves under the deep seabed. and protocols. the future use of CHM is likely to be limited.
wherever they are located. States might be reticent to embrace the possible applications of CHM. and the search for shared ethical principles to guide progress towards a more peaceful and sustainable future for all (Earth Charter Initiative 2000). but international law is no longer the sole province of states and international lawyers. It is linked to renewed interest in cosmopolitanism. global constitutionalism. concepts such as CHM. global ecological citizenship and justice. for the benefit of all.from exclusive focus on protection of national interests to include responsibility to protect ecological systems. Global civil society is playing an increasing role in the development of. and advocacy for. .
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