The Common Heritage of Mankind

Common management. The Area is not simply unowned; it is managed. Article 153, worked in the next chapter, provides that activities in the Area shall be organised, carried out and controlled by the International Seabed Authority on behalf of mankind as a whole. That is the feature that distinguishes common heritage from the freedom of the high seas: freedom means everybody may act; common heritage means an institution acts for everybody.

Sharing of benefits. Article 140(1): activities in the Area shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status recognised by the United Nations in accordance with General Assembly resolution 1514 (XV). Article 140(2): the Authority shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis.

Peaceful use. Article 141: the Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination.

Preservation for future generations, expressed through the environmental and scientific provisions: article 143, marine scientific research in the Area shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole; article 144, transfer of technology; article 145, protection of the marine environment, requiring necessary measures to ensure effective protection from harmful effects of activities in the Area.

The other provisions of the Section

Article 133 defines resources for the purposes of Part XI as all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules, and provides that resources, when recovered from the Area, are referred to as minerals.

Article 134 deals with the scope of the Part and provides that it does not affect the establishment of the outer limits of the continental shelf under Part VI. Article 135: neither Part XI nor any rights granted or exercised under it shall affect the legal status of the waters superjacent to the Area or of the air space above those waters, so the water above the Area is high seas.

Article 138: the general conduct of States in relation to the Area shall be in accordance with Part XI, the principles embodied in the Charter and other rules of international law, in the interests of maintaining peace and security and promoting international cooperation and mutual understanding.

Article 139 imposes responsibility to ensure compliance and liability for damage. Article 142 protects the rights and legitimate interests of coastal States where a deposit lies across the limits of national jurisdiction. Articles 146 to 149 deal with the protection of human life, accommodation of activities, participation of developing States, and archaeological and historical objects found in the Area, which shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin.

Where else the phrase appears

The Moon. Article 11 of the Moon Agreement 1979 declares the Moon and its natural resources the common heritage of mankind and provides that the Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means, and that neither the surface nor the subsurface, nor any part of it or natural resources in place, shall become the property of any State, international organisation, national organisation, non-governmental entity or natural person. It requires States Parties to undertake to establish an international regime to govern exploitation when it becomes feasible. That is [International Space Law], and the Moon Agreement's near-total failure to attract ratifications is the standing evidence of what happens when the principle is applied to a resource States expect to be valuable.

Antarctica is often mentioned in the same breath and the comparison should be made carefully. The Antarctic Treaty 1959 freezes territorial claims rather than abolishing them and does not declare the continent the common heritage of mankind.

The distinction that matters is between the common heritage of mankind and the older idea of res communis, a thing common to all, which is what the high seas are. Res communis means open to use by everybody, with no institution and no sharing: whoever fishes keeps the fish. Common heritage means vested in mankind, managed by an institution, and shared. The difference is not one of degree.

A worked example

State UU's national company discovers a rich field of polymetallic nodules on the ocean floor 700 nautical miles from any coast. It plants a marker, announces a claim, and begins recovering nodules and selling them.

Can State UU claim the area? No. Article 137(1): 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 of it, and no such claim shall be recognised.

Can the company own the nodules it recovers? Only if it acts lawfully. Article 137(2) vests all rights in the resources in mankind as a whole and makes the resources inalienable, while permitting minerals recovered from the Area to be alienated in accordance with Part XI and the Authority's rules. Recovery outside that framework confers no title.

Who decides? The International Seabed Authority. Article 153 organises, carries out and controls activities in the Area on behalf of mankind as a whole, and the machinery is [The Area, and the Parallel System of Mining].

What does State UU owe if it proceeds lawfully? Under article 140(2) the Authority provides for the equitable sharing of the financial and other economic benefits on a non-discriminatory basis, taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence.

Could State UU say the water above is high seas and so it may act freely? The water above is indeed high seas: article 135 provides that Part XI does not affect the legal status of the superjacent waters or the air space above. But the seabed is the Area, and the freedom of the high seas has never included a freedom to appropriate the seabed beneath them.

And if the field straddles the outer edge of a coastal State's continental shelf? Article 142 protects that State's rights and legitimate interests, requiring consultation and its prior consent where activities in the Area would involve exploiting resources lying across the limits of national jurisdiction.

Distinctions table

What it does NOT mean

It is not res communis. The high seas are open to all with no institution and no sharing; the Area is vested in mankind and managed.

It does not cover the water above. Article 135: the legal status of the superjacent waters and airspace is unaffected, and those waters are high seas.

It is not ownership by the United Nations. The rights are vested in mankind as a whole, and the Authority acts on mankind's behalf.

It does not prevent minerals being sold. Article 137(2) permits minerals recovered from the Area to be alienated in accordance with Part XI and the Authority's rules; it is the resources in place that are inalienable.

Antarctica is not common heritage. The Antarctic Treaty freezes claims; it does not declare the continent the heritage of mankind.

Limits and criticism

The principle nearly sank the Convention. Part XI as drafted in 1982 was unacceptable to the industrialised States, which would not ratify, and the Convention could not enter into force until the 1994 Implementation Agreement rewrote its economic provisions. That story is the next chapter, and it is the strongest evidence that the principle as first conceived asked more than States would give.

Where it has been applied to something valuable it has failed. The Moon Agreement, which applies the principle to lunar resources, has attracted very few ratifications and none from the States with the capacity to go there.

Benefit sharing has produced nothing yet. No commercial deep seabed mining has taken place, so the equitable sharing in article 140(2) has never distributed anything, and the machinery is untested.

But it changed the argument. Before 1967 the assumption was first come, first served. After it, the burden fell on those who wanted to take, and even the industrialised States that rejected Part XI's economics accepted the non-appropriation principle in article 137. That is a real achievement and it should be stated alongside the criticisms.

Quick revision

Arvid Pardo of Malta, 1 November 1967, proposed the seabed beyond national jurisdiction be the common heritage of mankind. GA Resolution 2749 (XXV), 1970, declared it. Part XI of the 1982 Convention enacted it.

Article 1(1)(1): the Area is the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. Article 133: resources are all solid, liquid or gaseous mineral resources in situ, including polymetallic nodules; once recovered they are minerals.

Article 136: the Area and its resources are the common heritage of mankind.

Article 137: (1) no claim or exercise of sovereignty or sovereign rights, no appropriation by any State or person, and no recognition of any such claim; (2) all rights vested in mankind as a whole, the Authority acting on its behalf, resources not subject to alienation, recovered minerals alienable only under Part XI.

Article 140: activities for the benefit of mankind as a whole, with particular consideration for developing States; equitable sharing of financial and other economic benefits. Article 141: exclusively peaceful purposes. Article 143: research for peaceful purposes and the benefit of mankind. Article 145: protection of the marine environment. Article 135: the superjacent waters and airspace are unaffected. Article 142: coastal States' rights where a deposit straddles the limit. Article 149: archaeological objects preserved for the benefit of mankind, with preferential rights for the State of origin.

Five elements: non-appropriation, common management, benefit sharing, peaceful use, preservation for future generations.

Elsewhere: article 11 of the Moon Agreement 1979. Antarctica is not common heritage; the 1959 Treaty freezes claims.

Test yourself

1. Define the Area and state its legal status.

Article 1(1)(1) defines the Area as the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. Article 136 provides that the Area and its resources are the common heritage of mankind. Article 137 gives that content: no State may claim or exercise sovereignty or sovereign rights over any part of the Area or its resources and no State or natural or juridical person may appropriate any part of it, no such claim or appropriation being recognised; all rights in the resources are vested in mankind as a whole, on whose behalf the Authority acts; and the resources are not subject to alienation, although minerals recovered from the Area may be alienated in accordance with Part XI and the Authority's rules.

2. Where did the concept come from?

From the speech of Arvid Pardo, the permanent representative of Malta, to the General Assembly on 1 November 1967, proposing that the seabed beyond national jurisdiction be declared the common heritage of mankind, reserved for peaceful purposes and exploited for the benefit of mankind as a whole with particular regard to the needs of poor countries. The General Assembly adopted the Declaration of Principles in Resolution 2749 (XXV) in 1970, and the concept was then negotiated into Part XI of the 1982 Convention.

3. Distinguish common heritage of mankind from res communis.

Res communis describes a thing common to all, such as the high seas: it is not appropriable, but it is open to use by everybody freely, there is no institution managing it, and whoever exploits it keeps what he takes. The common heritage of mankind goes much further: the resources are vested in mankind as a whole, no State or person may appropriate any part, an institution, the International Seabed Authority, organises and controls all activities on mankind's behalf, and the financial and other economic benefits are shared equitably with particular consideration for developing States. The difference is one of kind rather than degree, and it is the difference between freedom and trusteeship.

4. Name the five elements of the concept and give the article for each.

Non-appropriation, article 137. Common management by an institution acting on behalf of mankind, articles 137(2) and 153. Sharing of benefits, article 140, with equitable sharing of financial and other economic benefits under article 140(2). Peaceful use, article 141. Preservation for future generations, expressed in article 143 on marine scientific research, article 144 on transfer of technology and article 145 on protection of the marine environment.

5. Does the common heritage principle apply to the waters above the Area?

No. Article 135 provides that neither Part XI nor any rights granted or exercised pursuant to it shall affect the legal status of the waters superjacent to the Area or of the air space above those waters. Those waters are high seas, governed by Part VII and the freedoms in article 87. So in the same vertical column the seabed is common heritage, managed by the Authority, and the water above is open to all: fishing there is a high seas freedom, and mining beneath it is not.

6. "The common heritage of mankind is a slogan that has never produced anything." Discuss.

There is force in it. Part XI as originally drafted was unacceptable to the industrialised States and had to be rewritten by the 1994 Implementation Agreement before the Convention could enter into force at all. The same principle applied to lunar resources by article 11 of the Moon Agreement 1979 has attracted very few ratifications and none from States capable of going there. And because no commercial deep seabed mining has taken place, the equitable sharing required by article 140(2) has never distributed anything. The answer is that the principle changed the terms of the argument: before Pardo's speech the assumption was first come, first served, and after it the burden lay on those who wished to take. Even the States that rejected Part XI's economics accepted the non-appropriation rule in article 137, and no State today asserts a sovereign claim to the deep seabed.