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.




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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