The common heritage of mankind: past, present, and future.

AuthorNoyes, John E.
  1. INTRODUCTION

    The international community has developed several different types of legal regimes to govern natural resources. In general terms, these include:

    * according states exclusive permanent sovereignty over natural resources, a system associated with territoriality;

    * sharing resources, as in the cases of international rivers and migratory species;

    * recognizing common property rights, as in the case of the high seas, where no one user has exclusive rights to resources and no one can exclude others from exploiting them, but capturing resources results in exclusive property rights; and

    * recognizing property as the common heritage of mankind-or, to use a more contemporary phrase, the common heritage of humankind (CH)--whereby all manage resources and share in the rewards of exploiting them, even if they are not able to participate in that exploitation.

    In this essay I reflect on what has happened to the CH principle, which underlies the last of these regimes. Several exemplary studies have examined the evolution and content of the CH principle. (1)

    Although I comment on the evolution of the principle, I also focus on recent developments affecting its implementation and its possible future.

    Part II of this essay discusses what the CH principle means in international law. This discussion involves three questions: To what situations does the principle apply? What are its components or elements? And what is its legal status? Parts III and IV suggest that "context" is essential to understanding the CH principle, or indeed any principle of international law. Part III places the CH principle, which was promoted especially in the late 1960s and the 1970s, in historical context. Part IV notes that the CH principle has been incorporated in some treaties. The most notable of these is Part XI of the 1982 United Nations Convention on the Law of the Sea ("LOS Convention"), (2) as revised by its associated 1994 Implementation Agreement, (3) concerning seabed mining beyond the limits of national jurisdiction. An additional development has accompanied the translation from principle to detailed rule in the law of the sea: the practice of states and international legal institutions has reinforced aspects of the CH seabed mining regime. Finally, Part V of this essay evaluates the current status and significance of the CH principle or concept. What, if anything, remains of it?

  2. THE COMMON HERITAGE PRINCIPLE

    We can explore the meaning of any principle by considering three questions. First, to what events or situations does it apply? That is, with respect to the CH principle, what sorts of property or resources fall within the scope of the principle? Second, what are the elements or components of the principle, the features that give it content? And third, what is its legal status? When we ask these questions about the CH principle we discover that its meaning is less than clear, despite several decades of use of the principle in international law.

    The first question is perhaps the easiest to answer. States and commentators have promoted the CH principle as applying particularly to areas beyond the limits of national jurisdiction and to natural resources found there. One early influential document was the Declaration of Principles, adopted by the U.N. General Assembly in 1970. (4) Paragraph 1 of this Declaration provides that "[t]he sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as the area), as well as the resources of the area, are the common heritage of mankind." (5) Article 136 of the widely adopted 1982 LOS Convention explicitly provides that "[t]he Area and its resources are the common heritage of mankind"; (6) the Convention defines the "Area" as "the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction," (7) and "resources" are limited to "solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules." (8) Article 11 of the 1979 Moon Treaty, now in force for thirteen states (albeit none of the space powers), explicitly incorporates the CH principle. (9) The principle has also been discussed in connection with Antarctica, (10) and some commentators have advocated applying the principle to other common space resources, including geostationary orbit and high seas fisheries. (11) In 1995 Malta invoked the CH principle in proposing that the U.N. Trusteeship Council be transformed "from a guardian of dependent territories to a body that acts as guardian and trustee of the global commons and the common concerns in the interest of present and future generations," (12) a proposal directed at conserving the international environment.

    Commentators and international organizations have also proposed that a range of other, non-common space resources that are essential to humans and of widely shared interest should be governed under a CH regime. Such resources include, for example, rain forests, genetic resources (even when found within national boundaries), cultural heritage, and food. (13) However, the idea of applying the CH principle to resources within the territorial jurisdiction of states has proved controversial, and the principle has gained traction only with respect to some common space resources, particularly deep seabed minerals in the Area. (14)

    Second, what are the elements of the CH principle? Features often associated with it include:

    * a prohibition of acquisition of, or exercise of sovereignty over, the area or resources in question;

    * the vesting of rights to the resources in question in humankind as a whole;

    * reservation of the area in question for peaceful purposes;

    * protection of the natural environment;

    * an equitable sharing of benefits associated with the exploitation of the resources in question, paying particular attention to the interests and needs of developing states; and

    * governance via a common management regime.

    The first two of these features relate to the juridical status of the area in question. The first--prohibition on sovereignty--is not unique to a CH regime: for example, it has long been accepted that no state may exercise sovereignty over the high seas. The notion that rights vest in humankind as a whole does, however, radically diverge from the concept of high seas freedoms, which permits individual acquisition of fish or other resources.

    The next three features concern the utilization of the area and resources in question. Some formulations of the CH principle explicitly provide that protection of the environment entails a sharing of burdens as well as benefits, (15) and note that such protection involves an obligation to take into account the interests of future generations. (16) Because non-peaceful uses of an area could destroy its resources, the peaceful purposes prong may also encompass concern with future generations. The equitable sharing of benefits, implying distributive justice, is the most novel and most controversial feature of the CH principle. This element may imply a sharing or broadening of the base of knowledge about resources. It also encompasses sharing the material benefits or proceeds derived from exploiting resources. Opposition to this benefit-sharing feature, as well as to the prohibition on sovereignty, help explain why the CH principle has not been applied to rain forests or other resources located within national territory. (17)

    The last feature, governance through a common management system, reflects the view that "humankind" as a whole is responsible for managing the area or resource in question. The CH principle anticipates the creation of appropriate institutional machinery or other cooperative arrangements to implement such governance.

    Although I assert that these features are "often associated" with the CH principle, each of them has been subject to much debate. States and commentators disagree about several components of the CH principle. A few examples provide a sense of the discourse:

    Juridical Status. The United States has historically argued that the CH principle is simply another verbal formulation of a freedoms regime, under which no country has sovereignty over a common space but may acquire exclusive property rights in its resources. (18) Professor Christopher Joyner argues that "vesting of rights in all of humankind" is an element only of a radical form of the CH principle. (19) Many commentators, however, regard humankind's rights to the resources as an essential characteristic of the CH principle.

    Utilization: Peaceful Purposes. The International Law Association, in its 1986 Seoul Declaration concerning the CH principle, does not list "peaceful purposes" among the utilization features of a common heritage regime. (20) Commentators have noted that "peaceful purposes" could stand apart from the CH concept as a separate principle. (21)

    Utilization: Environmental Protection. The existence and formulation of an environmental protection element of the CH principle have been disputed. Professor R. St. J. McDonald does not consider environmental protection an element. He finds that environmental preservation is linked to "an obligation to leave a particular area in as good a condition as the present generation received it," and believes that "obligations on intergenerational rights and on environmental and natural preservation" must await "a more mature" formulation of the CH principle. (22) By contrast, Judge Rudiger Wolfrum finds that "the interests of future generations have to be respected in making use of the international commons," approaches environmental protection through the lens of sustainable development, and considers "the concept of sustainable development [to be] one of the important elements of the common heritage principle." (23) However, Professor Duncan French questions whether the concept of sustainable development applies to common spaces, noting that...

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