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The intention was to replace the outdated legal concept of “freedom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