The Common Heritage of Mankind: 21St Century Challenges of a Revolutionary Concept

Chapter 17 The Common Heritage of Mankind: 21st Century Challenges of a Revolutionary Concept

María Fernanda Millicay

Introduction

The United Nations Convention on the Law of the Sea1 marked a revolution not only in international law but also in the history of international rela- tions.2 It has been said that “[i]n the history of multilateral diplomacy there has been nothing to equal the 1982 Convention in scope, sophistication and universality”.3 The Convention is unique not only in its ambition but also in some innovative concepts it introduced. One of such concepts is the common heritage of mankind. Prior to the adoption by the United Nations General Assembly of its Resolutions on the status of the Area, the seabed and the ocean floor beyond the limits of national jurisdiction, being the bottom of the high seas, were con- sidered to be part of the high seas. Thus, the exploitation of their resources was subject to the freedom of the high seas, on a ‘first come first serve’ basis. On 1 November 1967, Ambassador Arvid Pardo of Malta made a historic statement before the First Committee of the General Assembly. That statement clearly shows that at a time of Cold War part of the international com- munity feared that the lack of a specific legal regime applicable to that area would lead the seabed and ocean floor beyond the limits of national jurisdiction to become the scenario of the arms race. It was also feared that the seabed and ocean floor would be progressively appropriated by States and that the freedom of the high seas would only benefit the few developed countries with the necessary technology to undertake mining activities in depths of more than 3,000 meters.4

1 Hereinafter ‘UNCLOS’ or ‘the Convention’. 2 A. Pardo, “An opportunity lost”, in Law of the Sea. U.S. policy dilemma, ed. B. Oxman et al. (San Francisco: ICS Press, 1983), 14. 3 See Phillip Allot, “Mare nostrum: a new international law of the sea”, 86 American Journal of International Law (1992): 764. 4 See General Assembly Official Records (GAOR), Twenty-second Session, First Committee, 1515th and 1516th meetings (1967).

Both the General Assembly and the negotiators of UNCLOS decided to sub- tract the seabed and ocean floor beyond the limits of national jurisdiction (‘the Area’) from both national appropriation and the freedom of the high seas. A new legal regime was created to put into effect the ‘common heritage of mankind’ principle with regard to the Area and its resources. That major principle provided the basis for the overall regime established in Part XI of UNCLOS and in the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982.5 The Convention also created an unprecedented international machin- ery, the International Seabed Authority, as the trustee of mankind.

The Common Heritage of Mankind and the Emergence of the Legal Regime of the Area

In the 1960s, it was believed that there were millions of tons of manganese nodules in the bottom of the sea, and that they could provide supplies of many industrially relevant metals to last for thousands of years at those days’ rates of consumption.6 The issue was first raised at the United Nations by Malta,7 and due to its security implications, it was allocated to the First Committee of the General Assembly. At the 1515th and 1516th meetings of the First Committee, in November 1967, Ambassador Arvid Pardo of Malta referred to the remarkable advances in technology, which made it foreseeable that the seabed and ocean floor beyond the limits of national jurisdiction8 would become progressively and competitively appropriated, as well as exploited and used for military purposes by those who possessed the required technology. He referred to the presence of manganese nodules in the sea-bottom, mainly in the Pacific and Indian Oceans and to the impact that production of those minerals from the sea-bottom could have on the national economies of mineral producer countries. The intention was to prevent a race for the seabed which could lead to the exploitation of such vast wealth for the exclusive benefit of less than a handful of nations. Malta proposed that an agency assumed jurisdiction as the trustee of all countries, and that a series of principles be incorporated into a treaty that

5 United Nations, Treaty Series, vol. 1833, No. 31363. 6 See J. Mero, “Mineral deposits in the Sea”, 1 Natural Resources Law (1968): 130. 7 Memorandum submitted by Malta. 22 GAOR. Document A/6695. 8 Arvid Pardo’s intervention made reference to the seabed and ocean floor “beyond the limits of present national jurisdiction”. Note 4 supra, para. 3.