The idea of the common heritage of mankind
Judge and current Vice-President, International
Tribunal for the Law of the Sea
The profits of nodule mining are either excellent, marginal or imaginary, depending on whom you talk to.
It has rightly been stated that the development of general concepts of international law reflects the spirit of a given historic period.2 This is certainly also true of the idea of the ‘common heritage of mankind’ which constitutes an essential element of UNCLOS3 adopted after eight years of particularly difficult negotiations which to a large extent centred on the implementation of that concept. The debates on a new law of the sea also inspired the incorporation of the common heritage principle into the Moon Treaty.4 To some degree that idea is also reflected in the legal framework for the protection of the environment of Antarctica where reference is made to ‘the interests of all mankind’.5 A full application of that concept to that area would, however, at a minimum require the extinguishment of all national claims and the establishment of a more universal regime of administration and control.6 Such a development does not – at least at present – seem to be in sight.
* Opinions expressed in this chapter are personal and do not necessarily reflect those of the Tribunal as a whole.
1 See the New York Times, August 1977 (on file with author).
2 R. Wolfrum, ‘The principle of the common heritage of mankind’, HJIL 43, 1983, pp. 312–37, p. 312. Available on-line: http://www.zaoerv.de.
3 United Nations Convention on the Law of the Sea, 10 December 1982.
4 Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 5 December 1979.
5 See op. cit., Wolfrum, fn 2, p. 313. See also A. Kiss, ‘Conserving the common heritage of mankind’, HeinOnline – Rev. Jur. UPR 39, 1990, pp. 773–7, p. 774.
6 G. Nicholson, ‘The common heritage of mankind and mining: an analysis of the law as to the high seas, outer space, the Antarctic and world heritage’, HeinOnline – NZ J. Envtl. L. 6, 2002, pp. 177–98, p. 192.
Already in 1830, Andres Bello, poet, scholar and international jurist in the Grotian mould from South America wrote that things which could not be held by any nation without affecting the interests of other nations were of the nature of ‘indivisible common patrimony’. According to his view there were areas of the planet which should be set apart in common for the use of all people, which were not capable of being subject to claims of State sovereignty or ownership, but which were subject to certain defined rights of common use.7 In the course of that century the sea began gradually to be seen as an important repository of resources and seabed mining was proposed as early as 1876.8 The idea that the exploitation of the resources of the oceans should also take account of the common interests of mankind, however, only gained ground in the twentieth century. In the course of the work of the League of Nations to promote the progressive codification of international law, the Argentine jurist José León Suárez in 1927 proposed that the living resources of the seas should be considered a ‘heritage of mankind’.9 In 1955, a member of the International Law Commission, Georges Scelle, suggested the creation of a system of international concessions for the exploitation of the seabed, proposing in particular the establishment of a competent international organ within the framework of the UN.10
In the 1960s, there was a sudden surge of interest in the exploitation of the seabed based on studies that a wealth of resources existed on the deep seabed with the most common minerals being cobalt, copper, manganese and nickel, recoverable from both mineral nodules and mineral crusts. It was, inter alia, estimated that there are 1.5 trillion tons of manganese nodules on the ocean floor containing these minerals.11 At the same time, the idea gained ground that this ‘fortune on the seabed’ should benefit mankind as a whole and not be left to the technologically advanced countries alone.12 The drive towards an internationalization of the seabed was to a large extent also motivated by the attempt to call a halt to the
7 Ibid., pp. 177–8.
8 B. E. Heim, ‘Exploring the last frontiers for mineral resources: a comparison of international law regarding the deep seabed, outer space and Antarctica’, HeinOnline –Vand. J. Transnat’l L. 23, 1990–1, pp. 819–50, p. 822.
9 T. Scovazzi, The Seabed beyond the Limits of National Jurisdiction: General and Institutional Aspects, Report submitted to the Fourth J. W. H. Verzijl Memorial Symposium ‘The legal regime of areas beyond national jurisdiction: current principles and frameworks and future direction’, Utrecht, 21 November 2008, fn1 (on file with author).
10 See A. Kiss, ‘La notion de patrimoine commun de l’humanité’, Recueil des Cours, Collected Courses of the Hague Academy 1982 II (The Hague, Boston and London: Martinus Nijhoff Publishers, 1983), pp. 102–256, p. 199.
11 Op. cit., Wertenbaker, fn 1, p. 4; see also ibid., p. 197.
12 See D. Cronan, ‘A fortune on the seabed’, UNESCO Courier, February 1986, p. 8; see also A. Pardo, and C. Q. Christol, ‘The common interest: big tension between the whole and parts’, in R. St. J. Macdonald and D. M. Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Dordrecht, Boston and Lancaster: Martinus Nijhoff Publishers, 1986), pp. 643–60, p. 653.
Since the advent of the space age, the international community had been aware of the need to develop a set of international principles to govern space activities. In 1958 the UN General Assembly established an ad hoc Committee on the Peaceful Uses of Outer Space, comprising a Legal Subcommittee and a Scientific and Technical Subcommittee, which eventually became a permanent Committee. It has since drafted several multilateral treaties forming the legal framework of existing international space law.14 In 1963 the General Assembly adopted the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space15 which provided the basis for the ‘Outer Space Treaty’ of 1967,16 constituting the basis for the international legal regime in outer space.17
The Outer Space Treaty declares that ‘outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind’ and that exploration and use ‘shall be the province of all mankind’. The Treaty further states that outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means. Exploration and use is to be in accordance with international law, including the Charter of the United Nations, in the interest of maintaining ‘international peace and security’ and promoting ‘international cooperation and understanding’. While the concept of the ‘province of all mankind’ seems to echo the common heritage-of-mankind principle, it can also be said that its usage in the Outer Space Treaty denies rather than confirms any perceived status of outer space as common heritage of mankind. Nonetheless, several traces of that concept are to be found in that Treaty which besides non-appropriation and exclusive use for peaceful purposes also refers to the ‘common interest of all mankind’ and the ‘benefit of all peoples’ as major principles governing the exploration and use of outer space.18 The Outer Space Treaty thus to a certain degree already foreshadowed later developments.
The year 1967 marked a breakthrough for the idea of the common heritage of mankind. The World Peace through Law Conference, referring to the high seas as
13 See also E. Franckx, ‘The 200 mile limit: between creeping jurisdiction and creeping common heritage?’, HeinOnline – Geo. Wash. Int’l L. Rev. 39, 2007, pp. 467–98, p. 478 and fn. 49.
14 J. A. Bosco, ‘International law regarding outer space – an overview’, HeinOnline – J. Air L. & Com. 55, 1989–1990, pp. 609–51, p. 614.
15 UN General Assembly Resolution 1962 (XVIII), Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 13 December 1963.
16 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 27 January 1967.
17 See F. G. von der Dunk, ‘The Moon Agreement and the prospect of commercial exploitation of lunar resources’, Annals of Air and Space Law, McGill, 2007, vol. XXXII, 91–113, pp. 97–8.
18 Ibid., pp. 98–9; see also A. Kiss, ‘The common heritage of mankind: utopia or reality’, HeinOnline – Int’l J. 40, 1984–85, pp. 423–41, pp. 418–29.
‘the common heritage of all mankind’, recommended to the UN General Assembly to issue a proclamation declaring the bed of the sea to appertain to the UN, subject to its jurisdiction and control.19 In the same year, Aldo A. Cocca from Argentina stated in the Legal Sub-Committee of the Committee on the Peaceful Uses of Outer Space that the international community had recognized the existence of a new subject of international law, namely, mankind itself, and had endowed it with the vastest common property – res communis humanitatis – namely outer space, including the moon and the other celestial bodies.20 On 1 November 1967, Ambassador Arvid Pardo of Malta presented a Memorandum at the General Assembly which proposed that the seabed and the ocean floor beyond the limits of national jurisdiction be declared the ‘common heritage of mankind’, not subject to national appropriation, and reserved exclusively for peaceful purposes.21 This proposal was to be the basis for the idea of the common heritage of mankind being enshrined in international legal instruments and becoming a principle of international law.
As Ambassador Pardo subsequently stated, the objective of the Maltese proposal was to replace the principle of freedom of the seas by the principle of common heritage of mankind in order to preserve the greater part of ocean space as a commons accessible to the international community. International administration of the commons and management of its resources for the common good distinguished the principle of common heritage from the traditional principle of the high seas as res communis. The common heritage concept implied that it was open to use by the international community, but was not owned by it. It required a system of management in which all users had a right to share as well as an active sharing of benefits, reservation for peaceful purposes, in so far as politically achievable, and lastly reservation for future generations, and thus had environmental implications.22
In acting upon the Maltese proposal, the General Assembly in 1968 established the Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction and a year later adopted the Deep Seabed Mining Moratorium Resolution23 prohibiting the exploitation of the resources of the seabed beyond the limits of national jurisdiction and not recognizing any claim to any part of that area or its resources. The legally binding nature of the
19 Op. cit., Wolfrum, fn 2, pp. 315–16.
20 Ibid., p. 1, fn 1.
21 See T. T. B. Koh, ‘The origins of the 1982 Convention on the Law of the Sea’, Malaya Law Review 29, 1987, pp. 1–17, p. 16; see also op. cit., Nicholson, fn 6, pp. 180–1.
22 L. F. E. Goldie, ‘A note on some diverse meaning of “the common heritage of mankind” ’, HeinOnline – Syracuse J. Int’l. & Com. 10, 1983, pp. 69–112, p. 87.
23 UN General Assembly Resolution 2574 (XXIV), Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of Mankind, 15 December 1969, GA Res. 2574D, 24 UN GAOR Supp. (No. 30) p. 11, UN Doc. A/7630 (1969).
moratorium was, however, contested by industrialized countries.24 In 1970, the General Assembly unanimously adopted the Declaration of Principles Governing the Sea-Bed and the Ocean Floor and the Subsoil Thereof, Beyond the Limits of National Jurisdiction25 which constituted an important basis for the future UNCLOS. The respective area as well as its resources were declared the ‘common heritage of mankind’, not to be subject to appropriation by any means by States or persons and to be reserved exclusively for peaceful purposes. The exploration of the area and the exploitation of its resources were to be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether landlocked or coastal, and taking into particular consideration the interests and needs of the developing countries. The General Assembly further decided to hold UNCLOS III as it had become obvious that besides elaborating legal rules for the international seabed area the traditional law of the sea also needed revision based upon a new consensus of the international community.26
In a ‘Draft Ocean Space Treaty’ of 1971, the Government of Malta suggested that the principle of common heritage be applied to ocean space as a whole, that is, to the surface of the sea, the water column, the seabed and its subsoil without regard to the jurisdictional status of any particular area. The application of the principle would, however, not be the same in areas within national jurisdiction as in areas outside thereof. In the former, the coastal States on behalf of mankind would exercise wide powers of resource management and regulation of uses, while the latter would be administered by ‘International Ocean Space Institutions’ with wide functions.27 The Maltese draft rejected ‘laissez-faire freedom’ beyond national jurisdiction as well as ‘unfettered sovereignty’ of the State within national jurisdiction.28
UNCLOS III was characterized by a ‘package deal’ approach in order to achieve a new, comprehensive and universal legal order of the seas.29 Thus, traditional
24 See op. cit., Goldie fn 22, pp. 94–7; see also E. Guntrip, ‘The common heritage of mankind: an adequate regime for managing the deep seabed?’, MelbJIL 4/2, 2003, pp. 376–405, p. 376. Available on-line: http://www.austlii.edu.au/au/journals/MelbJIL/2003/2.html.
25 UN General Assembly Resolution 2749 (XXV), Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction, 17 December 1970, 25 UN GAOR Supp. (No.28) p. 24, UN Doc. A/8028 (1970).
26 See also D. Anderson, ‘The development of the modern law of the sea’ in Modern Law of the Sea, Selected Essays/David Anderson (Leiden and Boston: Martinus Nijhoff Publishers, 2008), p. 12.
27 Draft Ocean Space Treaty, Working Paper submitted by Malta, UNGA doc. A/AC 138/53 of 23 August 1971; see also op. cit., Pardo and Christol, fn 12, p. 654.
28 Draft Ocean Space Treaty, fn 27, p. 6.
29 See also ‘Closing statement by President Tommy Koh at the Third United Nations Conference on the Law of the Sea’, in The Law of the Sea: Official Text of the UN Convention on the Law of the Sea xxxiv (1983), as cited by D. Freestone, ‘A decade of the Law of the Sea Convention: is it a success?’, HeinOnline – Geo. Wash. Int’l Rev. 39, 2007, pp. 499–515, p. 499, fn 2.
law of the sea issues played an equally important role as the implementation of the principle of the common heritage of mankind with respect to the seabed beyond the limits of national jurisdiction. In dealing with the respective issues a majority of coastal States was pitted against the landlocked and geographically disadvantaged States which only had to lose from an extension of coastal States’ rights and jurisdiction over the seas. It further soon became clear that these coastal States were not prepared to make any important sacrifices of what they considered as rightfully being theirs in favour of the idea of the common heritage of mankind. Continuous appeals – in particular by the landlocked and geographically disadvantaged States – for a ‘meaningful’ common heritage did not meet with a response. The negotiations regarding the common heritage of mankind were, above all, marked by intense debates between developing and developed States as to the meaning, the scope and the practical consequences of applying that principle to the deep seabed. The Maltese proposal to also include living resources of the seas in the concept was not retained as it was considered unrealistic.30
On 30 April 1982 the UNCLOS, providing a comprehensive legal framework to regulate all ocean space, its uses and resources, was finally adopted. The Convention was opened for signature on 10 December of the same year and entered into force on 16 November 1994. At present, 158 States and the European Community are Parties to the Convention which is slowly moving towards universal adherence.31 Some major elements of Part XI of the Convention containing the regime for deep seabed mining had remained controversial throughout the Conference as they favoured developing over developed countries and did not follow a market-oriented approach. As a result, the Convention was not adopted by consensus, the USA, inter alia, voting against it, and important industrialized countries only adhering to it until these provisions had undergone a substantial change.
One of the most revolutionary features of the Convention was the creation of the exclusive economic zone ( EEZ) with a maximum limit of 200 nm from the baselines from which the territorial sea is measured, recognizing the right of coastal States to jurisdiction over the resources of some 38 million square nautical miles of ocean space. In that zone the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing all natural resources and also with respect to other economic activities.32 The EEZ probably represents the largest transfer of resources to national jurisdiction in history as these zones cover about 8 per cent of the surface of the earth, 36 per cent of the surface of the seas and contain an estimated 87 per cent of the offshore
30 See also op. cit., Pardo and Christol, fn 12, p. 655; op. cit., Franckx, fn 13, p. 486; op. cit., Scovazzi, fn 9, p. 3.
32 UN Division for Ocean Affairs and the Law of the Sea, The United Nations Convention on the Law of the Sea (A Historical Perspective), p. 5. Available on-line: http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm.
hydrocarbon resources. If one adds to the area of EEZs the area of the continental shelf where it extends beyond 200 nm – up to 350 nm from the baselines or up to 100 nm from the 2,500 metre isobath – an estimated 97 per cent of the offshore hydrocarbon resources fall under national jurisdiction.33
Today, about one third of the world’s oil production is from offshore, and that percentage is still growing as production is moving into ever deeper waters.34 In this context it should be borne in mind that the Maltese proposal of a ‘Draft Ocean Space Treaty’ had provided that States Parties would ‘agree to surrender against equitable and appropriate compensation their claims to jurisdiction over the seabed of submarine areas more than 200 nm from their coast which are subjacent to waters less than 200 meters deep’.35 Although directly affected by the delineation of the continental shelf beyond 200 nm by coastal States – on the basis of recommendations by the Commission on the Limits of the Continental Shelf – no role in the proceedings was given to the International Seabed Authority, entrusted with administering the area of the common heritage of mankind.36