Common Heritage of Mankind
What is Common Heritage of Mankind?
Background of Common Heritage of Mankind.
Modern Application of Common Heritage of Mankind.
Core Element of Common Heritage of Mankind.
Moon Treaty 1979
Controversies
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.
In 1970, United Nations General Assembly Resolution 2749, the Declaration of Principles Governing the Seabed and Ocean Floor, was adopted by 108 nation states and stated that the deep seabed should be preserved for peaceful purposes and is the "Common Heritage of Mankind."
In 1982, the Common Heritage of Mankind concept was stated to relate to "the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction" under Article 136 of the United Nations Law of the Sea Treaty (UNCLOS).
Payoyo argues that the common heritage of humanity principle in Part XI of the Law of the Sea Treaty should favour developing states (who were the voice of conscience in establishing it), and not merely in some transient 'affirmative action' manner. He claims, however, that the 1994 Implementation Agreement facilitated control by industrialised countries of the International Seabed Authority (ISA), allowing access by the private sector to the deep sea bed and inhibiting constructive dialogue on sustainable development.
The International Geophysical Year (IGY) was a main motivating factor behind the development of contemporary legal notions concerning open access and common property as applied to new territories such as Antarctica, the deep seabed, and outer space. The international scientific investigations conducted during 1957 and 1958 were enormously successful, and created a new paradigm for international prestige through cooperation in quality scientific research. In fact, the collaborations forged during the IGY fostered the formation of a number of new international committees and agreements including the 1958 United Nations General Assembly Conference in Geneva on the Law of the Sea, which reaffirmed the freedom of the high seas and began negotiations concerning the natural resources of the continental shelf and deep seabed; the 1959 Antarctic Treaty; the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS); and ultimately the 1967 Outer Space Treaty containing the Common Benefit Principle (a modified res communis), which mandates that space exploration and the utilization of its resources be "for the benefit and in the interests of all countries."
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.
Conservation of the living resources of the high seas
According to Article 119 of United Nations Convention on the Law of the Sea (UNCLOS) III
1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall:
(a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global;
(b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
2. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned.
3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State.
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.
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.
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.
Background of Common Heritage of Mankind.
Modern Application of Common Heritage of Mankind.
Core Element of Common Heritage of Mankind.
Moon Treaty 1979
Controversies
Common heritage of mankind
Common heritage of mankind is a principle of international law which holds that defined territorial areas
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.
Background of Common Heritage of Mankind
Notions designating global resources as the common property of humankind
(res communis) are not new, particularly in relation to the oceans, but
date back more than 400 years. During the great age of discovery in the
fifteenth century, Spain and Portugal claimed sovereignty over the high
seas in accordance with the Papal Bull of 1493. This Bull established
the border between Portuguese and Spanish waters "by a meridian line
running 100 leagues west of the Azores, through both poles." In the late
1500s, however, the Protestant, seafaring nations of England and
Holland challenged these claims of exclusive sovereignty over the
oceans. Elizabeth I, 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" . This began the establishment of the principle of "Common Heritage of Mankind".
In the late 19th century, scientists discovered polymetallic nodules on the deep seabed. The quantities found were large enough to enable commercial mining operations, and in the 1960s, developments in technology meant that accessing these new mineral resources became a real and imminent possibility.
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.
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.
In the late 19th century, scientists discovered polymetallic nodules on the deep seabed. The quantities found were large enough to enable commercial mining operations, and in the 1960s, developments in technology meant that accessing these new mineral resources became a real and imminent possibility.
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.
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.
In 1970, United Nations General Assembly Resolution 2749, the Declaration of Principles Governing the Seabed and Ocean Floor, was adopted by 108 nation states and stated that the deep seabed should be preserved for peaceful purposes and is the "Common Heritage of Mankind."
In 1982, the Common Heritage of Mankind concept was stated to relate to "the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction" under Article 136 of the United Nations Law of the Sea Treaty (UNCLOS).
Payoyo argues that the common heritage of humanity principle in Part XI of the Law of the Sea Treaty should favour developing states (who were the voice of conscience in establishing it), and not merely in some transient 'affirmative action' manner. He claims, however, that the 1994 Implementation Agreement facilitated control by industrialised countries of the International Seabed Authority (ISA), allowing access by the private sector to the deep sea bed and inhibiting constructive dialogue on sustainable development.
Modern Applications of Common Heritage of Mankind
The International Geophysical Year (IGY) was a main motivating factor behind the development of contemporary legal notions concerning open access and common property as applied to new territories such as Antarctica, the deep seabed, and outer space. The international scientific investigations conducted during 1957 and 1958 were enormously successful, and created a new paradigm for international prestige through cooperation in quality scientific research. In fact, the collaborations forged during the IGY fostered the formation of a number of new international committees and agreements including the 1958 United Nations General Assembly Conference in Geneva on the Law of the Sea, which reaffirmed the freedom of the high seas and began negotiations concerning the natural resources of the continental shelf and deep seabed; the 1959 Antarctic Treaty; the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS); and ultimately the 1967 Outer Space Treaty containing the Common Benefit Principle (a modified res communis), which mandates that space exploration and the utilization of its resources be "for the benefit and in the interests of all countries."
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.
Conservation of the living resources of the high seas
According to Article 119 of United Nations Convention on the Law of the Sea (UNCLOS) III
1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall:
(a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global;
(b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
2. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned.
3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State.
Core Elements on Common Heritage of Mankind
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.
Moon Treaty 1979
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.
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.
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