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).