“The sea-bed and ocean floor under the high seas should be considered as “the common heritage of mankind”. Discuss.
Introduction
In the late 19th century, scientists discovered poly metallic nodules on the deep seabed. The quantities found were large enough to enable commercial mining operations,and in the 1960s, developments in technology meant that accessing these new mineral resources became a real and imminent possibility. [1] 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’.
Due to the ideological differences of developed and developing states, the common heritage of mankind principle has been interpreted in various ways.These interpretations have not been reconciled and there has been no juridical consideration of the common heritage of mankind principle to clarify them.Therefore, the precise legal requirements of the principle of the common heritage of mankind remain undefined.
Naturally, the question arose as to who would have the right to explore and exploit these resources. The awareness of the problem can be illustrated by the words of Lyndon Johnson, President of the United States, who stated in 1966 “Under no circumstances, we believe, must we ever allow the prospects of rich harvest and mineral wealth to create a new form of colonial competition among the maritime nations. We must be careful to avoid a race to grab and to hold the lands under the high seas. We must ensure that the deep sea and the ocean bottoms are, and remain, the legacy of all human beings.”
Common Heritage of Mankind Principle: Common Heritage of Mankind Principle:
From 1884-1957 at least 64 international conference were held on different countries to set the law on specific and technical aspects of marine affairs. First United Nations Conference on the Law the Sea (UNCLOS 1) held on 1958 and total 28 international agreements were concluded by multilateral negotiations. The second Nations Conference on the Law the Sea (UNCLOS 2) held on 1960 but none of the conference was able to settle the common heritage of mankind principle.
To develop the common heritage of mankind principle of sea, the General Assembly passed Resolution, which created a Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction (Seabed Committee).
And it was decided that the common heritage of mankind principle will consists of five elements.
1. There can be no private or public appropriation.
2. Representatives from all nations must manage resources contained in such a territorial or conceptual area on behalf of all, because commons area is considered to belong to everyone;
3. All nations must actively share with each other the benefits acquired from exploitation of the resources from the common heritage region;
4. There can be no weaponry or military installations established in territorial commons areas.
5. The common space should be preserved for the benefit of future generations.
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.
The 1994 Agreement almost achieved universal acceptance. In order to attain this, developing states had to accede to the demands of developed states over the management of the deep seabed. The common heritage of mankind principle now binds a majority of states through UNCLOS and the 1994 Agreement.
Prohibition on the Acquisition of the Deep-Sea Bed:
However, the 1994 Agreement has only affected the management regime. It has not altered the content of the common heritage of mankind principle. Consequently, the common heritage of mankind principle does apply to the deep seabed, but due to conflicting opinions, the substantive elements of the concept remain vague.
Article 137(1) [2] of UNCLOS provides that “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized”.
It is also mentioned in the article 141 of UNCLOS that “the Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination and without prejudice to the other provisions of this Part”
In the article 1(1) of the Emplacement Treaty it is mentioned that ‘The States parties to this Treaty undertake not to implant or emplace on the seabed and the ocean floor and in the subsoil thereof beyond the outer limit of the seabed zone, any nuclear weapons or any other types of weapons of mass destruction as well as structures, launching installations or any other facilities specifically designed for storing, testing or using such weapons’ but it is not mentioned what is peaceful purposes are. So confusions on using the deep seabed mining still remain intact.
THE INTERNATIONAL SEABED AUTHORITY (ISA)
Creation of an International Seabed Authority (ISA), proposed by the Group of 77, is now a reality. The ISA is an autonomous international agency having a relationship agreement with the United Nations. The Authority, which has its headquarters in Kingston, Jamaica, came into existence on 16 November 1994, upon the entry into force of the 1982 Convention. The Authority became fully operational as an autonomous international organization in June 1996. Today, the Authority has 165 members. And its organization includes an Assembly, a Council, a Secretariat, an Enterprise, an Economic Planning Commission, and a Legal and Technical Commission. The International Tribunal for the Law of the Sea functions autonomously and may elect members to a Sea-Bed Disputes Chamber. The task of the Authority “is to organize and control all mineral-related activities in the international seabed area beyond the jurisdiction of any State”, an area underlying most of the world’s oceans. Although coastal states can claim and exploit areas of the continental shelf more than 200 nautical miles from shore, under UNCLOS, states are required to make payments to the international community through the ISA
Problems with the Law on Deep-Sea Bed:
Equitable Sharing of Benefits:
The original provisions relating to the distribution of the benefits of deep seabed activities were contained in article 160(2)(f)(i) of UNCLOS. The principles are now contained in s7 of the annex to the 1994 Agreement. The limits of these principles will only become clear when distribution commences on a case-by-case basis. The criteria applicable will vary depending on the extent to which the distribution of benefits is to assist developing states: it may be limited to direct economic consequences, or could extend to programs that have resulted from cutbacks due to the economic shortfall. The internal procedure of the ISA governs the distribution of benefits, and litigation over distribution is therefore unlikely to occur. The amount of funding, however, will be a contentious issue that can only be determined when commercial deep seabed activities commence. Until then, the principles provide a useful framework.
International Management Regime:
The ISA was set up as the international management regime for the deep seabed. The 1994 Agreement changed the decision-making system of the ISA, the result of which is a regime that allows the individual interests of states to override the interests of mankind. The US was opposed to the original system of decision-making as it ‘unfairly and unnecessarily granted a disproportionate voice to developing countries that have little or no investment in seabed mining operations’. Other developed states shared this view. Consequently, in order to gain universal acceptance of part XI, it was necessary for the 1994 Agreement to alter the decision-making process. Therefore, the policies of developed states dominate ‘mankind’. This structure represents the proposals initially suggested by the developed states and reduces the involvement of developing states in creating policies and interpreting the provisions of part XI. These changes detract from the management regime reflecting the common heritage of mankind.
Ban on Mineral Exploitation
Article 7 of the Protocol on Environmental Protection to the Antarctic Treaty states that, “Any activity relating to mineral resources, other than scientific research, shall be prohibited”. The prohibition on mining is in contrast to the purpose of part XI of UNCLOS. The purpose of the common heritage of mankind principle was to equitably share financial benefits from any exploitation. Whilst the permitted activities on Antarctica differ, this does not preclude a comparison between aspects of the governments that have been successful. The common heritage of mankind principle still applies to the deep seabed and outer space even though no exploitation has occurred. Therefore, the remaining aspect of the international management regime may provide guidance for the common heritage of mankind principle.
Deep Sea Fisheries:
Bottom trawling involves dragging large weighted nets across the seabed to catch the fish living in the waters just above.The practice has caused longstanding and mounting concern about its destructiveness to fisheries and ecosystems.Bottom trawling is increasingly recognized today as destructive to the coral, sponge, and other organisms that live on or near the seabed and is the cause of ninety-five percent of the worldwide damage to seamount ecosystems. Still, even after 1994 agreement it is yet not defined how countries can manage to do fisheries after after the end of territorial sea international water of 12 nautical miles.
Existence of ‘Soft Law’:
The framework approach also has the potential to result in the creation of ‘soft law’[3]. States consider the specifics of international environmental law principles, and the resulting resolutions, protocols, and treaties contribute to its corpus. Thus, the combination of formal international environmental law instruments with ‘soft law’ leads to the establishment of binding international law. Compared with international environmental law, the law relating to the deep seabed has had little consideration. There is, therefore, a lack of ‘soft law’ governing the deep seabed, which has prevented the common heritage of mankind principle from being fully developed. Combined with the deep seabed’s lack of utilization, the common heritage of mankind principle’s negotiation was abstract. Consequently, it remains merely a framework.
Benefits of Using the Deep Seabed as the Common Heritage of Mankind:
Marine Scientific Research:
Marine scientific research promotes the well-being of producing a better understanding of the effect of the oceans on the world’s climate, more effective management programs for the world’s living and nonliving resources, and more advanced pollution control measures. The LOS Convention grants discretion to coastal states to deny scientific research in their EEZ’s and on the continental shelf. Bilateral and regional arrangements are possible wherever appropriate and other less formal approaches to facilitating marine scientific research are under study.
Fisheries:
Marine fish and invertebrates are among the last sources of wild food on the planet, providing over 2.6 billion people with at least 20% of their average per capita protein intake. Moreover, the world’s oceans host 32 of the 34 known phyla on Earth and contain somewhere between 500,000 and 10 million marine species. Species diversity is known to be as high as 1000 per square metre in the Indo-Pacific Ocean, and new oceanic species are continuously being discovered, particularly in the deep sea. It is therefore not surprising that the genetic resources in the oceans and coasts are of actual and potential interest for commercial uses.
Marine Environment:
Marine protected areas (MPAs) are now widely accepted as an important tool to conserve marine biological diversity and productivity, including ecological life support systems. They have the potential to make a significant contribution to modern fisheries management, which recognizes the need to protect biodiversity to preserve ecosystem structure, functions and processes upon which fisheries and all marine life. It is important for all nations to protect the marine environment to improve the genetic diversity of marine species. For the marine environment, the Convention is unnecessary. Existing international conventions provide adequate standards restricting the discharge of pollutants and regulating the design, construction, manning, and equipment of ships. All the country should enforce international standards as a precondition of entrance into their ports, a right recognized by international law.
Suggestions:
· The prohibition on sovereign claims and the appropriation of the deep seabed reflects the inherent nature of the common heritage of mankind principle rather than being an element of it. It needs to clarify what does sovereign means in terms of common interest of mankind or in different international rules on deep-sea bed.
· ‘Peaceful purposes’ is undefined in UNCLOS and the Emplacement Treaty, while the Antarctic Treaty and the Moon Treaty have limited definitions. Therefore, further elaboration is required.
· Equitable sharing is yet to commence and consequently there has been no juridical consideration of the guidelines for the distribution of benefits. When this occurs, the extent of assistance may be able to be determined.
· Coastal States shall, in normal circumstances, grant their consent for marine scientific research projects by other states or competent international organizations in their exclusive economic zone or on their continental shelf to be carried out in accordance with the Convention exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind. To this end, coastal states shall establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably.
· States, directly or through competent international organizations, shall cooperate in accordance with their capabilities to promote actively the development and transfer of marine science and marine technology on fair and reasonable terms and conditions. Both individually and in co-operation with other states and with competent international organizations, they shall actively promote the flow of scientific data and information and the transfer of knowledge resulting from marine scientific research, especially to developing states, as well as the strengthening of the autonomous marine scientific research capabilities of developing states through, inter alia, programs to provide adequate education and training of their technical and scientific personnel.
· States have the obligation to protect and preserve the marine environment.
· States shall take, individually or jointly as appropriate, all measures consistent with the Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavor to harmonize their policies in this connection.
· States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with the Convention.
· Measures taken to prevent or minimize pollution of the marine environment shall include those designed to minimize to the fullest possible extent the release of toxic, harmful or noxious substances, especially those that are persistent, from land-based sources, from or through the atmosphere or by dumping and also the pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels.
Conclusions:
Presently, the common heritage of mankind principle is no more than an inchoate concept, consisting of as yet undeveloped standards. Contrasting ideologies and inconsistent interpretations have plagued development of the common heritage of mankind principle. However, the 1994 Agreement,achieved near universal acceptance,still did not reconcile the differing approaches of the developed and the developing states; it only modified the administrative aspects of deep seabed activities. Therefore, the common heritage of mankind principle remains undefined. although the common heritage of mankind principle is not currently a legal standard, it does present a possible means of governing the deep seabed. Consequently, it will need to establish content to be enforceable. This content cannot be drawn from existing international law. Other regimes that use similar principles do not assist in determining the ways in which this can occur. However, the methods used in international environmental law may provide a model for developing the common heritage of mankind principle to a point where it could become an enforceable standard.
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[1] See Schrijver, N. (1997). Sovereignty over natural resources: balancing rights and duties. Cambridge, Cambridge University Press, P 215.
[2] See Un.org (n.d.) UNCLOS – Part XI, Section 2. [online] Available at: https://www.un.org/depts/los/convention_agreements/texts/unclos/part11-2.htm [Accessed: 1 Apr 2013].
[3] See Works.bepress.com (1999) “International Soft Law” by Andrew T. Guzman, et al.. [online] Available at: http://works.bepress.com/timothy_meyer/5/ [Accessed: 1 Apr 2013].