Common Heritage of Mankind Vs Freedom of High Sea
Difference Between Common Heritage of Mankind and Freedom of High Sea.
Definition of Common Heritage of Mankind.
Definition of Freedom of High Sea.
Background History of Freedom of High Sea.
Background History of Freedom of High Sea.
Legal Status of Common Freedom of High Sea.
Legal Status of Common Freedom of High Sea.
Freedom of high sea is a principle which declare the freedom of navigation, freedom of trade or rights of trade.
In 1577, specifically dismissed Spanish claims of sovereignty over the high seas by "declaring that the sea, like the air, was common to all mankind and that no nation could have title to it".
In 1609, Dutch jurist and philosopy Hugo Grotius wrote what is considered the foundation of the international legal doctrine regarding the seas and oceans – Mare Liberum, a Latin title that translates to "freedom of the seas".
Respectful Activities
According to Article 87 (2) of United Nations Convention on the Law of the Sea (UNCLOS) III
The freedoms are given by Article 87(1) shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
Reservation of the high seas for peaceful purposes
According to Article 88 of United Nations Convention on the Law of the Sea (UNCLOS) III
The high seas shall be reserved for peaceful purposes
Invalidity of claims of sovereignty over the high seas
According to Article 89 of United Nations Convention on the Law of the Sea (UNCLOS) III
No State may validly purport to subject any part of the high seas to its sovereignty.
Unauthorized broadcasting from the high seas
According to Article 109 of United Nations Convention on the Law of the Sea (UNCLOS) III
All States shall cooperate in the suppression of unauthorized broadcasting from the high seas
Cooperation of States in the conservation and management of living resources
According to Article 118 of United Nations Convention on the Law of the Sea (UNCLOS) III
States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned.
Benefit of mankind
According to Article 140 of United Nations Convention on the Law of the Sea (UNCLOS) III
Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and
of peoples who have not attained full independence or other self-governing status recognized by the United Nations in accordance with General Assembly resolution 1514 (XV) and other relevant General Assembly resolutions.
Freedom of the high seas
According to Article 87(1) of United Nations Convention on the Law of the Sea (UNCLOS) III
The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
Right of navigation
According to Article 90 of United Nations Convention on the Law of the Sea (UNCLOS) III
Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.
Right to lay submarine cables and pipelines
According to Article 112 of United Nations Convention on the Law of the Sea (UNCLOS) III
1. All States are entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf.
2. Article 79, paragraph 5, applies to such cables and pipelines.
Right to fish on the high seas
According to Article 116 of United Nations Convention on the Law of the Sea (UNCLOS) III
All States have the right for their nationals to engage in fishing on the high seas subject to:
(a) their treaty obligations;
(b) the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and
(c) the provisions of this section.
The Common Heritage of Mankind and Freedom of High Sea, both those principles are taken in modern international law by UNCLOS III.
In UNCLOS III both principle are taken and try to balance between two principles.
When a state fully enjoys the principle "freedom of high sea"; in the mean time the principle "common heritage of mankind" can not apply.
However the UNCLOS III defined purpose of freedom as peaceful purpose.
But question arise
When there is no bindings on exploration and exploitation on high sea then how the "common heritage of mankind" apply?
On the other hand, The existing resources of land is demolish day by day. So today or tomorrow we have to use sea resources. Thus every coastal state started exploration and exploitation in sea as secondary resource.
So Common Heritage of Mankind is not applicable fully for the principle "freedom of high sea".
Definition of Common Heritage of Mankind.
Definition of Freedom of High Sea.
Background History of Freedom of High Sea.
Background History of Freedom of High Sea.
Legal Status of Common Freedom of High Sea.
Legal Status of Common Freedom of High Sea.
Difference Between Common Heritage of Mankind and Freedom of High Sea.
Definition of Common Heritage of Mankind
Common heritage of mankind is a principle of international law which holds that defined territorial areas and elements of humanity's common heritage (cultural and natural) should be held in trust for future generations and be protected from exploitation by individual nation states or corporations.
Definition of Freedom of High Sea
Freedom of high sea is a principle which declare the freedom of navigation, freedom of trade or rights of trade.
Background History of Common Heritage of Mankind
In 1577, specifically dismissed Spanish claims of sovereignty over the high seas by "declaring that the sea, like the air, was common to all mankind and that no nation could have title to it".
Background History of Freedom of High Sea
In 1609, Dutch jurist and philosopy Hugo Grotius wrote what is considered the foundation of the international legal doctrine regarding the seas and oceans – Mare Liberum, a Latin title that translates to "freedom of the seas".
Legal Status of Common Heritage of Mankind
Respectful Activities
According to Article 87 (2) of United Nations Convention on the Law of the Sea (UNCLOS) III
The freedoms are given by Article 87(1) shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
Reservation of the high seas for peaceful purposes
According to Article 88 of United Nations Convention on the Law of the Sea (UNCLOS) III
The high seas shall be reserved for peaceful purposes
Invalidity of claims of sovereignty over the high seas
According to Article 89 of United Nations Convention on the Law of the Sea (UNCLOS) III
No State may validly purport to subject any part of the high seas to its sovereignty.
Unauthorized broadcasting from the high seas
According to Article 109 of United Nations Convention on the Law of the Sea (UNCLOS) III
All States shall cooperate in the suppression of unauthorized broadcasting from the high seas
Cooperation of States in the conservation and management of living resources
According to Article 118 of United Nations Convention on the Law of the Sea (UNCLOS) III
States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned.
Benefit of mankind
According to Article 140 of United Nations Convention on the Law of the Sea (UNCLOS) III
Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and
of peoples who have not attained full independence or other self-governing status recognized by the United Nations in accordance with General Assembly resolution 1514 (XV) and other relevant General Assembly resolutions.
Legal Status of Freedom of High Sea
Freedom of the high seas
According to Article 87(1) of United Nations Convention on the Law of the Sea (UNCLOS) III
The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
Right of navigation
According to Article 90 of United Nations Convention on the Law of the Sea (UNCLOS) III
Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.
Right to lay submarine cables and pipelines
According to Article 112 of United Nations Convention on the Law of the Sea (UNCLOS) III
1. All States are entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf.
2. Article 79, paragraph 5, applies to such cables and pipelines.
Right to fish on the high seas
According to Article 116 of United Nations Convention on the Law of the Sea (UNCLOS) III
All States have the right for their nationals to engage in fishing on the high seas subject to:
(a) their treaty obligations;
(b) the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and
(c) the provisions of this section.
Conclution
The Common Heritage of Mankind and Freedom of High Sea, both those principles are taken in modern international law by UNCLOS III.
In UNCLOS III both principle are taken and try to balance between two principles.
When a state fully enjoys the principle "freedom of high sea"; in the mean time the principle "common heritage of mankind" can not apply.
However the UNCLOS III defined purpose of freedom as peaceful purpose.
But question arise
When there is no bindings on exploration and exploitation on high sea then how the "common heritage of mankind" apply?
On the other hand, The existing resources of land is demolish day by day. So today or tomorrow we have to use sea resources. Thus every coastal state started exploration and exploitation in sea as secondary resource.
So Common Heritage of Mankind is not applicable fully for the principle "freedom of high sea".
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