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Common heritage of humanity

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Earthrise, photographed during an orbit of the Moon by William Anders during the 1968 Apollo 8 mission

Common heritage of humanity (also termed the common heritage of mankind, common heritage of humankind or common heritage principle) is a principle of international law that holds the defined territorial areas and elements of humanity's common heritage (cultural and natural) should be held in trust for future generations and be protected from exploitation by individual nation states or corporations.

Origins

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In tracing the origins of the common heritage principle, it is important to distinguish its history as a term from its conceptual history. The common heritage principle was developed under different names, including common "heritage", common "property", and common "patrimony" of mankind. These terms have at times described different concepts; for instance, in 1813 the "property of mankind" might mean the arts and sciences,[1] rather than items or areas. By the early 20th century, "common heritage" and similar terms usually referred to areas and the resources in them,[2] while other referents had become known under terms like "cultural heritage of all mankind", such as in the preamble to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.[3]

Conceptually, the common heritage arose in response to the Roman civil law principle of res communis, which described items or areas that anyone could access or use, but none could own.[4] Common heritage instead described areas or items that were owned by humanity as a collective. For example, in his essay Toward Perpetual Peace, Immanuel Kant claimed that the expansion of hospitality with regard to "use of the right to the earth's surface which belongs to the human race in common" would "finally bring the human race ever closer to a cosmopolitan constitution".[5]

The first known use of Common Heritage of Mankind by a state representative in the United Nations, constituting state practice, was at the First UN Conference on the Law of the Sea by Prince Wan Waithayakon of Thailand in 1958.[6] The role of 'mankind' as a legal subject was mentioned in negotiations for the outer space treaties, and mentions of 'mankind' appear across the space treaties.[7] 'Mankind' as a subject in international law also appears in the Preamble of the United Nations Charter, the Preamble of the North Atlantic Treaty (1949) and the Treaty on the Non-Proliferation of Nuclear Weapons (1968).[8]

Law of the Sea Treaty

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Map of the world's oceans

In 1970, United Nations General Assembly Resolution 2749, the Declaration of Principles Governing the Seabed and Ocean Floor, was adopted by 108 nation states and stated that the deep seabed should be preserved for peaceful purposes and is the "Common Heritage of Mankind."[9]

In 1982, the Common Heritage of Mankind concept was stated to relate to "the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction" under Article 136 of the United Nations Law of the Sea Treaty (UNCLOS).[10]

In his book titled Cries of the Sea: World Inequality, Sustainable Development and the Common Heritage of Humanity, Payoyo argues that the common heritage of humanity principle in Part XI of the Law of the Sea Treaty should favour developing states who were the voice of conscience in establishing it, and not merely in some transient 'affirmative action' manner.[11] He claims, however, that the 1994 Implementation Agreement facilitated control by industrialised countries of the International Seabed Authority (ISA), allowing access by the private sector to the deep sea bed and inhibiting constructive dialogue on sustainable development.[12]

In July 2024, during the International Seabed Authority’s 29th General Assembly, Palau's President Surangel Whipps Jr., in his address entitled Upholding the Common Heritage of Humankind," emphasized the importance of safeguarding the ocean from exploitation and modern-day colonialism.[13][14][15]

Core conceptual components

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Former Maltese Ambassador Arvid Pardo, one of the founders of the common heritage of humanity concept under international law, has claimed that it challenges the "structural relationship between rich and poor countries" and represents a "revolution not merely in the law of the sea, but also in international relations".[16] One of the main architects of the principle under international space law has claimed that it is "the most important legal principle achieved by man throughout thousands of years during which law has existed as the regulating element of social exchange".[17] This praise relates to the fact that international law in the common heritage of humanity principle is seeking to protect, respect and fulfill the interests of human beings independently of any politically motivated sovereign state; the concept covering all humans wherever they are living, as well as future generations.[8][18]

Jennifer Frakes has identified five core components of the Common Heritage of Humanity concept.[19] First, there can be no private or public appropriation; no one legally owns common heritage spaces. Second, representatives from all nations must manage resources contained in such a territorial or conceptual area on behalf of all since a commons area is considered to belong to everyone; this practically necessitating a special agency to coordinate shared management. Third, all nations must actively share with each other the benefits acquired from exploitation of the resources from the commons heritage region, this requiring restraint on the profit-making activities of private corporate entities; this linking the concept to that of global public good. Fourth, there can be no weaponry or military installations established in territorial commons areas. Fifth, the commons should be preserved for the benefit of future generations, and to avoid a "tragedy of the commons" scenario.[19] Academic claims have been made that where the principle requires the establishment of an international resource management regime, prior to establishment of such a regime a moratorium on resource exploitation should be enforced.[20][21] Such a position does not appear to have been supported by most states during the respective drafting negotiations.[22]

Limits of national (territorial) jurisdiction and sovereignty
Outer space (including Earth orbits; the Moon and other celestial bodies, and their orbits)
national airspace territorial waters airspace contiguous zone airspace[citation needed] international airspace
land territory surface internal waters surface territorial waters surface contiguous zone surface Exclusive Economic Zone surface international waters surface
internal waters territorial waters Exclusive Economic Zone international waters
land territory underground Continental Shelf surface extended continental shelf surface international seabed surface
Continental Shelf underground extended continental shelf underground international seabed underground
  full national jurisdiction and sovereignty
  restrictions on national jurisdiction and sovereignty
  international jurisdiction per common heritage of mankind

World Heritage Conventions

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See also: cultural property law
Bamian Valley - UNESCO World Heritage listed site in Afghanistan, showing destroyed Buddha statue.

A similar principle of international law holds that the world's cultural and natural heritage (as nominated for listing by nation states) must be protected by states parties to the UNESCO World Heritage Convention.[23]

A case study in the use of these provisions was provided by the Franklin Dam non-violent protest campaign against the construction of a dam of Australia's last wild river; they being held by the Australian High Court to provide a valid basis for legislation protecting the Franklin River. Justice Lionel Murphy wrote in that case (Commonwealth v Tasmania) about the Common Heritage of Humanity principle: "The preservation of the world's heritage must not be looked at in isolation but as part of the co-operation between nations which is calculated to achieve intellectual and moral solidarity of mankind and so reinforce the bonds between people which promote peace and displace those of narrow nationalism and alienation which promote war ... [t]he encouragement of people to think internationally, to regard the culture of their own country as part of world culture, to conceive a physical, spiritual and intellectual world heritage, is important in the endeavour to avoid the destruction of humanity."[24]

UNESCO Universal Declaration on the Human Genome and Human Rights

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Main article: Universal Declaration on the Human Genome and Human Rights

The UNESCO Universal Declaration on the Human Genome and Human Rights declares in Article 1 that: "The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity." Article 4 states: "The human genome in its natural state shall not give rise to financial gains."[25] Such Declarations do not create binding obligations under international law (unless over time there is sufficient opinio juris and state practise to make them part of international customary law) so the impact of such principles of commercialisation of the human genome will be problematic.[26] Whether the principle prohibits the patenting of the human genome is contested by the corporate sector.[27]

UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations

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Proclaimed on November 12, 1997, the UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations is an international agreement (potentially part of international customary law) which includes provisions related to the common heritage of mankind.[28]

'The present generations have the responsibility to bequeath to future generations an Earth which will not one day be irreversibly damaged by human activity. Each generation inheriting the Earth temporarily should take care to use natural resources reasonably and ensure that life is not prejudiced by harmful modifications of the ecosystems and that scientific and technological progress in all fields does not harm life on Earth.'

— UNESCO, Declaration on Future Generations Article 4

'With due respect for human rights and fundamental freedoms, the present generations should take care to preserve the cultural diversity of humankind. The present generations have the responsibility to identify, protect and safeguard the tangible and intangible cultural heritage and to transmit this common heritage to future generations.'

— UNESCO, Declaration on Future Generations Article 7

'The present generations may use the common heritage of humankind, as defined in international law, provided that this does not entail compromising it irreversibly.'

— UNESCO, Declaration on Future Generations Article 8

'1. The present generations should ensure that both they and future generations learn to live together in peace, security, respect for international law, human rights and fundamental freedoms.
2. The present generations should spare future generations the scourge of war. To that end, they should avoid exposing future generations to the harmful consequences of armed conflicts as well as all other forms of aggression and use of weapons, contrary to humanitarian principles.'

— UNESCO, Declaration on Future Generations Article 9

United Nations Declaration on the Rights of Indigenous Peoples

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Main article: Declaration on the Rights of Indigenous Peoples

The declaration affirms in its preamble that Indigenous Peoples contribute to humanity's common heritage.

Potential applications

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It was argued at the World Summit on the Information Society and has been advocated by academics that global communication between individuals over the internet should be regarded as part of the Common Heritage of Mankind.[29] Equatorial countries have proposed that the geostationary orbit over the high seas should be declared the common heritage of mankind.[30]

Controversies about the principle

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Kemal Baslar has stated that the Common Heritage of Mankind principle "is a philosophical idea that questions the regimes of globally important resources regardless of their situation, and requires major changes in the world to apply its provisions. In other words, the application and enforcement of the common heritage of mankind require a critical reexamination of many well-established principles and doctrines of classical international law, such as acquisition of territory, consent-based sources of international law, sovereignty, equality, resource allocation and international personality."[31]

The common heritage of humanity principle in international law has been viewed as one solution to the tragedy of the commons dilemma described in an influential article by that name written by Garrett Hardin in the journal Science in 1968.[32][33] The article critically analyzes a dilemma in which multiple individuals, acting independently after rationally consulting self-interest, ultimately destroy a shared limited resource even when each acknowledges that outcome is not in anyone's long-term interest. Hardin's conclusion that commons areas are practicably achievable only in conditions of low population density and so their continuance requires state restriction on the freedom to breed, created controversy particularly through his deprecation of the role of conscience in achieving justice and equality in society.[34] Hardin's views have been noted by scholars and policy-makers supporting privatization of common spaces and suggesting economic rationalism on such social and ecosystems.[35]

The extent to which the Common Heritage of Mankind principle does or should control the activities of private multinational corporations as well as nation states, particularly with regard to mining activities, remains controversial.[36] Least developed nations often see the principle as a means of protecting critical resources from exploitation by capitalist nations and their corporations.[19] As world oil, coal and mineral reserves are depleted there will be increasing pressure to commercially exploit Common Heritage of Mankind areas.[37] It appears at the present time that exploration of outer space is unlikely to initially proceed under the jurisdiction of a supranational organization, but rather through the coordination of national space programs.[38] It has been argued that photosynthesis in its natural or artificial forms should be considered the common heritage of humanity.[39]

See also

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References

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  1. ^ [Case article, Stewart, 483 (Vice-Admiralty Court of Halifax 1813-04-21).
  2. ^ Suarez, José León; League of Nations Committee of Experts for the Progressive Codification of International Law (1926). "Exploitation of the Products of the Sea". American Journal of International Law. Special Supplement: 236. doi:10.2307/2213212. JSTOR 2213212. Declaring the "riches of the sea" and the "immense wealth of the Antarctic region" "the patrimony of the whole human race.; League of Nations Conference for the Codification of International Law (1930-05-02). "3". Final Act of the Conference for the Codification of International Law (Report). Vol. 5. League of Nations. p. 15. Calling maritime resources the "common patrimony of mankind"
  3. ^ "Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention". UNESCO. Retrieved 2020-11-14.
  4. ^ Justinian, Caesar Flavius (2009-04-11) [523-11-21]. "2.1". In Sauertieg, Howard; Widger, David (eds.). The Institutes of Justinian. Translated by Moyle, J.B. Project Gutenberg. Thus, the following things are by natural law common to all—the air, running water, the sea, and consequently the seashore. No one therefore is forbidden access to the seashore, provided he abstains from injury to houses, monuments, and buildings generally; for these are not, like the sea itself, subject to the law of nations. Fenn, Percy Thomas (1925). "Justinian and the Freedom of the Sea". The American Journal of International Law. 19 (4): 716–727. doi:10.2307/2188310. ISSN 0002-9300. JSTOR 2188310.
  5. ^ Immanuel Kant. 'Toward Perpetual Peace' in Practical Philosophy-Cambridge Edition of the Works of Immanuel Kant. Gregor MJ (trans.). Cambridge University Press, Cambridge. 1999. p 329 (8:358).
  6. ^ "Official document of the United Nations". legal.un.org. Retrieved 2020-11-14.
  7. ^ UNGA Res 1962 (XVIII), 'Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space' UN Doc A/RES/1962(XVIII) (13 December 1963), The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 610 U.N.T.S. 205 (entered into force 10 October 1967), 1972 Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 (entered into force Sept. 1, 1972) and the 1975 Convention on Registration of Objects Launched Into Outer Space, Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 (entered into force Sept. 15, 1976)
  8. ^ a b Gyula Gál (2004). "Some Remarks to General Clauses of Treaty Space Law". Miskolc Journal of International Law (Miskolci Nemzetközi Jogi Közlemények). 1 (1): 1–8.
  9. ^ G.A. Res. 2749 (XXV), ¶ 1, U.N. Doc. A/RES/25/2749 (Dec. 12, 1970).
  10. ^ United Nations Convention on the Law of the Sea art. 1, para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397 [UNCLOS]
  11. ^ Payoyo PB. Cries of the Sea. World Inequality, Sustainable Development and the Common Heritage of Humanity. Martinus Nijhoff, The Hague. 1997 ISBN 90-411-0504-2 p 326.
  12. ^ Payoyo PB. Cries of the Sea. World Inequality, Sustainable Development and the Common Heritage of Humanity. Martinus Nijhoff, The Hague. 1997 ISBN 90-411-0504-2 p458.
  13. ^ "Nations join ranks to delay deep-sea mining approval by UN regulator". 31 July 2024.
  14. ^ "Deep sea mining, una scienziata ambientale a capo dell'organo regolatore". www.renewablematter.eu (in Italian). Retrieved 2024-08-13.
  15. ^ "Tuvalu calls for deep sea mining precautionary pause at ISA conference in Jamaica". RNZ. 2024-07-31. Retrieved 2024-08-13.
  16. ^ Pardo A (1984). "Ocean, Space and Mankind". Third World Quarterly. 6 (3): 559–69. doi:10.1080/01436598408419785.
  17. ^ Cocca A. Introduction to the Study of the Legal Framework for Economic Activity in Space. Cordoba, 1982. p159 cited in Danilenko GM (1988). "The Concept of the "Common Heritage of Mankind" in International Law". Annals of Air and Space Law. XIII: 247–63 at p 250 fn11.
  18. ^ Taylor, Prue; Stroud, Lucy (2013). Common Heritage of Mankind: A Bibliography of Legal Writing. Malta: Fondation de Malte. ISBN 978-1-291-57725-9.
  19. ^ a b c Frakes, Jennifer (2003). "The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise?". Wisconsin International Law Journal. 21: 409.
  20. ^ Narayana RK (1981). "Common Heritage of Mankind and the Moon Treaty". Indian Journal of International Law. 21: 275.
  21. ^ Sehgal N (1986). "The Concept of the Common Heritage of Mankind and the Moon Treaty". Indian Journal of International Law. 26: 112.
  22. ^ Danilenko GM (1988). "The Concept of the "Common Heritage of Mankind" in International Law". Annals of Air and Space Law. XIII: 247–63 at p 259.
  23. ^ "Convention Concerning the Protection of the World Cultural and Natural Heritage". UNESCO World Heritage Centre. Retrieved 2020-11-14.
  24. ^ Commonwealth v Tasmania (1983) 46 ALR 625 at 733 and 734.
  25. ^ "Universal Declaration on the Human Genome and Human Rights: UNESCO SHS". 2009-03-02. Archived from the original on 2009-03-02. Retrieved 2020-11-14.
  26. ^ Byk C (June 1998). "A map to a new treasure island: the human genome and the concept of common heritage". J Med Philos. 23 (3): 234–46. doi:10.1076/jmep.23.3.234.2589. PMID 9736186.
  27. ^ Ossorio PN (2007). "The human genome as common heritage: common sense or legal nonsense?". J Law Med Ethics. 35 (3): 425–39. doi:10.1111/j.1748-720X.2007.00165.x. PMID 17714252. S2CID 39732088. Archived from the original on 2013-01-06.
  28. ^ "Declaration on the Responsibilities of the Present Generations Towards Future Generations". UNESCO. Retrieved 2020-11-14.
  29. ^ Henrik Spang-hanssen (2006). Public International Computer Network Law Issues. Djoef Publishing. ISBN 978-87-574-1486-8.
  30. ^ Declaration of the First Meeting of Equatorial Countries. Bagota 3 Dec 1976. ITU Doc. WARC-BS (17 Jan 1977) 81-E. Reproduced: Journal of Space Law 1978; 6:193.
  31. ^ Kemal Baslar (1997). The Concept of the Common Heritage of Mankind in International Law. Developments in International Law. Vol. 30. Dordrecht: Martinus Nijhoff Publishers. ISBN 978-90-411-0505-9.
  32. ^ Garrett Hardin, "The Tragedy of the Commons", Science, Vol. 162, No. 3859 (December 13, 1968), pp. 1243–1248. Also available here and here.
  33. ^ Scott James Shackelford. 2008. "The Tragedy of the Common Heritage of Mankind" Available at: https://ssrn.com/abstract=1407332 accessed 30 Oct 2009.
  34. ^ Axelrod, Robert M. (1984). The evolution of cooperation. New York: Basic Books. ISBN 978-0-465-02121-5.
  35. ^ Appell, G. N. (1993). Hardin's Myth of the Commons: The Tragedy of Conceptual Confusions. Working Paper 8. Phillips, ME: Social Transformation and Adaptation Research Institute.
  36. ^ Nicholson G (2002). "The Common Heritage of Mankind and Mining: An Analysis of the Law as to the High Seas, Outer Space, the Antarctic, and World Heritage". New Zealand Journal of Environmental Law. 6: 177.
  37. ^ Joyner CC (1986). "Legal Implications of the Concept of the Common Heritage of Mankind". International and Comparative Law Quarterly. 35: 190–199. doi:10.1093/iclqaj/35.1.190.
  38. ^ Vereshchetin VS, Kamenetskaya EP (1987). "On the Way to a World Space Organization". Annals of Air and Space Law. 12: 337.
  39. ^ Faunce TA. (2011) Will international trade law promote or inhibit global artificial photosynthesis. Asian Journal of WTO and International Health Law and Policy (AJWH) 6: 313–347 https://ssrn.com/abstract=1935748 accessed 25 November 2011
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