The Common Heritage of Mankind: an Adequate Regime for Managing the Deep Seabed?

Abstract

[The concept of the 'common heritage of mankind" governs the deep seabed However. the principle of the common heritage of mankind has differing interpretations and consequently lacks legal force. This article attempts to give content to the common heritage of mankind principle, as it applies to the deep seabed, by examining existing principles in international law. It also draws analogies with the principle of the common heritage of mankind as it applies to Antarctica and outer space. The development of international environmental law is considered as a potential model by which the common heritage of mankind principle can develop further legal content.] CONTENTS I Introduction II The Evolution of the Common Heritage of Mankind Principle A Initial Proposal B General Assembly Resolutions 1 Moratorium Resolution 2 Declaration of Principles C UN Convention on the Law of the Sea D Reciprocating States' Regime E The 1994 Agreement F Conclusion III Legal Application of the Common Heritage of Mankind Principle A Prohibition on the Acquisition of the Deep Seabed 1 Traditional Sovereign Claims 2 The Compatibility of Sovereign Claims with the Common Heritage of Mankind Principle B The Use of the Seabed for Peaceful Purposes 1 Definitions of Peaceful Purposes 2 Peaceful Purposes in Analogous Treaties 3 Peaceful Purposes and the Deep Seabed C Equitable Sharing of Benefits D International Management Regime E Conclusion IV Global Commons and the Common Heritage of Mankind Principle A Outer Space Law B Antarctica 1 Sovereign Claims 2 Ban on Mineral Exploitation 3 Exclusive Membership 4 Conclusion V International Environmental Law and the Common Heritage of Mankind Principle A Development of International Environmental Law B Negotiation Methods in International Environmental Law C Existence of 'Soft Law' D Judicial Consideration E Precautionary Principle F Conclusion VI Conclusion I INTRODUCTION In the late 19th century, scientists discovered polymetallic nodules on the deep seabed. (1) The quantities found were large enough to enable commercial mining operations, (2) and in the 1960s, developments in technology meant that accessing these new mineral resources became a real and imminent possibility. (3) The problem, however, was that the deep seabed did not lie within the jurisdiction of any state. Consequently, to regulate access to these resources, a legal regime had to be established. The regime adopted was the 'common heritage of mankind'. The common heritage of mankind principle consists of four elements. It prohibits states from proclaiming sovereignty over any part of the deep seabed, and requires that states use it for peaceful purposes, sharing its management and the benefits of its exploitation. (4) Due to the ideological differences of developed and developing states, the common heritage of mankind principle has been interpreted in various ways. (5) These interpretations have not been reconciled and there has been no juridical consideration of the common heritage of mankind principle to clarify them. (6) Therefore, the precise legal requirements of the principle of the common heritage of mankind remain undefined. Although commercial deep seabed mining is unlikely to commence in the near future, there is still a need to establish an effective legal regime for the deep seabed. This need is demonstrated by, among other issues, the discovery of hydrothermal vents and the potential for military-based activities to occur on the deep seabed. Hydrothermal vent sites are located on the seabed in areas within and beyond the limits of national jurisdiction. (7) Each site consists of chemical rich waters that support a diverse range of micro-organisms and marine species. …