- Ankit Malhotra
Unpacking Common Heritage of Mankind: In Sea and Space
The ‘common heritage of mankind’ is a legal principle within international law that provides for a general framework of universal responsibility of sustainable legal and environmental protection. It establishes a close link between the laws of space and sea as well as those laws governing areas beyond national jurisdiction, such as the high seas, the deep seafloor, and some might even argue Antarctica. Indeed, the legal regime of outer space has been described as ‘analogous’ to the basic status of the high seas, discarding special rules which only apply to the latter. In the year 1970, the United Nations General Assembly passed Resolution 2749, which declared the seabed in areas beyond national jurisdiction, and the resources resting on it to be the ‘common heritage of mankind’. Propounded by the Maltese Permanent Representative to the United Nations, Arvid Prado, the Legal Concept was enshrined in the United Nations Convention on the Law of the Sea (UNCLOS) under Article 136. Pardo rightly feared that without an international regime, newly independent nations would fear that those with the greatest economic and technological advantages would reap the greatest rewards. This was echoed through him and all the less-developed nations who collectively believed that due to the vast economic and scientific potential of seabed resources, it would be important to provide equal access and not allow for a skewed exclusivity to the developed countries who possessed the requisite scientific and financial means to invest substantially in deep seabed mining technology.
In the golden age of international rule-making and diplomacy, roughly 1973, Third World states had sought richer states’ accountability for their colonial acts and support for alleviating from poverty and economic development. As a result of this thumping, the UN General Assembly and other assemblies of international organizations instrumented for a ‘New International Economic Order’ and a ‘New International Communication Order’. As a convenient veil, it was masked to appear as a nonchalant application of the ‘common heritage of mankind’. This myriad of confusion to seek representation, in its mandate, propagates the very idea it opposes. It conveniently portrays a passive (some might argue – active) approach to undermine and ostracize Latin America states and their voices towards international rule-making. In sum, one could argue that the concept was weaponized to attempt an international third world coup. All in the name to affect the recognition of a legal obligation of industrialized states to transfer technology and financial resources to the South.
Common Heritage of Mankind and Law of the Sea
With respect to the provisions on the sharing of deep seabed mining and the measures through which it would be operationalized fell under the aegis of the Legal Concept were the subject of dissent from developed states. Developed nations sought a principle that would be an egalitarianism-oriented measure. Accordingly, in 1994, the Part XI Implementing Agreement (‘1994 Agreement’) was introduced, which greatly weakened the benefit-sharing provisions under the Convention. Furthermore, in an attempt to garner universal support for the UNCLOS, the 1994 Agreement left the determination of operational intricacies of benefit sharing to the International Seabed Authority (‘ISA’).
However, even before President Reagan took office in 1981, the United States expressed its disagreements with the ISA. In revolt, it passed a law authorizing American companies to start exploiting the deep seabed. Similar laws have also been passed by several other developed states, such as France, West Germany, Italy, Japan and the UK. There is an agreement between most of the states which have passed such laws that companies from one ‘reciprocating state’ will not be authorized to operate in an area covered by a license issued by another ‘reciprocating state’. The laws in question do not purport to create rights over any part of the deep seabed which will be exclusive as against states which have not passed such laws; moreover, the laws are intended to apply only during the period before the entry into force of a convention on the law of the sea to which the legislating state is a party, and they provide that all or part of the revenue received by the government concerned from the exploitation of the seabed will be shared with developing countries or transferred to the International Seabed Authority. In spite of that, these laws were condemned by developing countries as a violation of General Assembly resolution 2749 (XXV).
Common Heritage of Mankind and Space Law
The ISA has been undertaking the difficult task of ascertaining the exact details and parameters of the benefit-sharing mechanism under the UNCLOS’ Common Heritage of Mankind legal concept. The term has emerged in connection with the progressive development of international law and has found reflection in the reform of the law of the sea, in space law, and the legal framework for Antarctica. In space law (much earlier than in the context of the law of the sea negotiations), the principle was first mentioned in UN General Assembly Resolution 1962 (XVIII) of 13 December 1963.
‘Need I apologize for my choice of subject? Some may say it belongs to the realm of exotics of law. Some may ask: Why deal with issues so remote when there are so many much closer to us still awaiting a solution? Why reach so far?’ With these words, the late Judge Manfred Lachs introduced his 1964 lecture at the Hague Academy of International Law on the topic ‘The International Law of Outer Space’. In its initial formative phase, space law had developed in anticipation of outer space activities at a time when such activities were still rather limited in practice. Significant progress was achieved since the two major powers, the United States and the Soviet Union, were at the time actively engaged in outer space activities, while most other states failed to perceive that any of their substantial interests would be affected in this connection shortly. While the major space powers seek to retain their monopoly positions and technological edge as much as possible, this has now clearly changed. Increasing numbers of states have become directly or indirectly involved in outer space or consider that their political and economic interests require the taking of a position.
Conflicts of interest, especially between industrialized and developing countries, have made achieving a consensus in the law-making process increasingly difficult. One peculiar highlight of this process has been the 1976 Bogota Declaration by eight equatorial countries claiming sovereign rights to segments of the geostationary orbit 36,000 km above their territory, which was met by rejection by the international community. Equatorial countries subsequently began abandoning this untenable position. One of the major treaty instruments was prepared based on the consensus method (instead of majority decision-making) to ensure the participation of the space powers. As a result, reinforcing the common heritage of mankind in letter and spirit.
Enshrined in the 1967 Outer Space Treaty Article 1, holds that stating that the exploration and use of outer space shall be the common province of all mankind. Initially, the Outer Space Treaty does not use the term ‘common heritage of mankind’, but rather uses the term ‘province of mankind’, stating that ‘exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries... and shall be the province of all mankind’.
However, Article 11 of the Moon Treaty refers to the common heritage principle explicitly. Article 4 of the same Treaty combines both notions in laying down that the exploration and use of the moon ‘shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development’. The legal content of the common heritage of mankind principle has remained obscure. With respect to the Outer Space Treaty, the common heritage ideal materializes the ‘province of all mankind’ ideal. What first appears in Article 4 states an ‘exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit... of all countries’. Thus, it seems clearer here that the ‘province’ of mankind is not the moon and celestial bodies. Rather it is the exploration and the use of it.
This interpretation aligns itself with the argument of the developed nations. According to whom, the heritage lies in the access. In Article 11 of the Moon Treaty, the ‘common heritage of mankind’ language surfaces, and the article states, "the moons and its natural resources are the common heritage of mankind and states may explore and use the moon without discrimination”. The Article continues by requiring the future establishment of an international regime "to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible”, reminiscent of the regime established to regulate the exploitation of the seabed.
In conclusion, it can be understood that less-developed nations believe that international areas designated for the common heritage of mankind do not belong to any one sovereign but instead to all nations. Using this logic, they enable themselves to a ‘righteous’ use of the resources. On the other hand, this reduces the potency of specialists and nations with the capital to undertake ground-breaking research. This research, will at the end of the day, be for the common heritage and development of mankind. In other words, referring to it as a "common property" approach, less-developed nations assert that there should be common management of such areas, with a singular group possessing exclusive rights to exploit natural resources and distribute those resources equally to all nations, regardless of which nations actually funded the effort (either economically or by developing the technology or both)."
Ankit Malhotra is reading Law at Jindal Global University and has a Bachelor of Arts Degree in International Affairs. He is also the President and co-founder of the Jindal Society of International Law.
Image Source: Credits to Kevin Kallaugher https://www.economist.com/the-world-this-week/2008/07/10/kals-cartoon