International law, Sixth edition
‘The common heritage of mankind’
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International Law MALCOLM N. SHAW
‘The common heritage of mankind’
The proclamation of certain areas as the common heritage of mankind has raised the question as to whether a new form of territorial regime has been, or is, in process of being created. 257 In 1970, the UN General Assembly adopted a Declaration of Principles Governing the Seabed and Ocean Floor in which it was noted that the area in question and its re- sources were the common heritage of mankind. This was reiterated in articles 136 and 137 of the 1982 Convention on the Law of the Sea, in which it was provided that no sovereign or other rights would be recog- nised with regard to the area (except in the case of minerals recovered in accordance with the Convention) and that exploitation could only take place in accordance with the rules and structures established by the Con- vention. 258 Article XI of the 1979 Moon Treaty emphasises that the moon and its natural resources are the common heritage of mankind, and thus incapable of national appropriation and subject to a particular regime of exploitation. 259 As is noted in the next section, attempts were being made to establish a common heritage regime over the Antarctic. There are cer- tain common characteristics relating to the concept. Like res communis, 256 See e.g. the Prime Minister, HC Deb., col. 946, 13 May 1982. 257 See e.g. K. Baslar, The Concept of the Common Heritage of Mankind in International Law, The Hague, 1998; Brownlie, Principles, chapter 12; A. Cassese, International Law, 2nd edn, Oxford, 2005, pp. 92 ff.; B. Larschan and B. C. Brennan, ‘The Common Heritage of Mankind Principle in International Law’, 21 Columbia Journal of International Law, 1983, p. 305; R. Wolfrum, ‘The Principle of the Common Heritage of Mankind’, 43 Za¨oRV, 1983, p. 312; S. Gorove, ‘The Concept of “Common Heritage of Mankind”’, 9 San Diego Law Review, 1972, p. 390, and C. Joyner, ‘Legal Implications of the Common Heritage of Mankind’, 35 ICLQ, 1986, p. 190. 258 See further below, chapter 11, p. 628. 259 See further below, p. 548. 534 i n t e r nat i o na l l aw the areas in question are incapable of national appropriation. Sovereignty is not an applicable principle and the areas in question would not be ‘owned’, nor would any jurisdictional rights exist outside the framework of the appropriate common heritage regime institutional arrangements. However, while a res communis regime permits freedom of access, explo- ration and exploitation, a common heritage regime as envisaged in the examples noted above would strictly regulate exploration and exploita- tion, would establish management mechanisms and would employ the criterion of equity in distributing the benefits of such activity. It is too early to predict the success or failure of this concept. The 1982 Law of the Sea Convention entered into force in 1994, while the Moon Treaty has the bare minimum number of ratifications and its exploitation provisions are not yet operative. As a legal concept within the framework of the specific treaties concerned, it provides an interesting contrast to tra- ditional jus communis rules, although the extent of the management struc- tures required to operate the regime may pose considerable problems. 260 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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