Emory International Law Review

BOOK REVIEW

“THE CONCEPT OF THE COMMON HERITAGE OF M ANKIND IN

INTERNATIONAL LAW ”

Reviewed by Christopher C. Joyner

Professor of International Law, Department of Government, Georgetown

University; Ph.D. in Foreign Affairs, University of Virginia (1977); M.A. in
Government, Florida State University (1973); M.A. in International
Relations, Florida State University (1972); B.A., Florida State University
(1970). The author has published widely in the international law of common
spaces, and his most recent book is Governing the Frozen Commons: The
Antarctic Regime and Environmental Protection (1998).

Source:

13 Emory International Law Review 615-628, (Fall, 1999)

Copyright (c) 1999 Emory University School of Law, Emory International

Law Review

(Downloade d from: Lexis/Nexis Professional)

The general principles of law recognized by civilized nations are key

sources of international law. These principles suggest the
transformation of broad, universally applicable precepts into specific
international legal rules. A general principle of law entails a legal
proposition that is so fundamental as to be found in virtually every
legal system and thus merits inclusion in international law as well.
For considerations affecting the management of global common
spaces-that is, the oceans, Antarctica, outer space and the
atmosphere-the doctrine of the common heritage of mankind (CHM)
has emerged as a candidate for such a general principle of law.1

1
See, e.g., Christopher C. Joyner, Legal Implications of the Concept of the Common
Heritage of Mankind, 35 Int'l & Comp. L. Q. 190 (1986); Rudiger Wolfrum, The
Principle of the Common Heritage of Mankind, 43 Zeitschrift fur Auslandisches und
Offentliches Recht und Volkrrecht 312 (1983); Bradley Larschan & Bonnie C. Brennan,
The Common Heritage of Mankind Principle in International Law, 21 Colum. J.
Transnat'l L. 305 (1983).

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 615-628, (Fall, 1999)

Nevertheless, the fact remains that in the evolution of modern

international law, few concepts, notions, or principles have stirred
as much debate or controversy as the CHM. The CHM doctrine
carries sweeping and radical implications that challenge the
traditional notion of resource acquisition and ownership. That CHM
remains far more of a legal notion than an actual universally-
accepted principle of international law is due mainly to the
tremendous economic, security, and political stakes at risk for
states. Thus, CHM has remained vague and ill-defined as a concept
in international relations, mainly because the ramifications of CHM's
application in the real world have been presented more in ideological
rhetoric than exposed to the realities of international political
economy.

In this updated version of his doctoral thesis, Kemal Baslar aims to

clarify the common heritage of mankind as a legal concept, with a
view toward assessing the relevance it holds for international law
now and in the future. 2

The volume undertakes a multifaceted, yet purposeful analysis. At

the outset, Baslar examines the philosophical underpinnings of
CHM, arguing that it is in fact a natural law concept. Baslar is
critical of traditional consent-based rules of international law
affecting sovereignty and the status of territory, which comes as
little surprise since they stifle the prospects for establishing CHM as
a bona fide principle of international law. Importantly, the effort is
then made to clarify the terminology of CHM and elaborate on what
is meant by the terms "common," "heritage," and "mankind." Baslar
contends that CHM is less a doctrine of ownership than an ethical
principle of stewardship, sealed in public trust. For him,
stewardship is anthropocentric, built by and for man and driven by
human choices. Stewardship implies domination by human beings
over Nature-the ability to control and manage events affecting the
conditions of Nature and other living things.

Baslar asserts that a new appreciation is needed and must be

developed for CHM as a vehicle to promote greater opportunities for
universal justice. To this end, he examines in detail the definitional
elements of CHM, and concludes that in an ecologically and
economically interdependent world, absolute sovereignty and narrow
national interests encumber application of CHM to natural
resources and areas located within national boundaries. To extend
his argument, Baslar then examines the application of CHM over the

2
Kemal Baslar, The Concept of the Common Heritage of Mankind in International
Law (1998).

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 Emory International Law Review

past two decades to outer space, especially in the Moon Treaty. 3

Lunar minerals, geostationary orbit, spectrum of radio-frequencies
used for space communication, and the La Grange spot were
examined as possible candidates for CHM status. Similarly, in the
law of the sea context, Baslar recounts the history of debate in
negotiating the 1982 UN Convention on the Law of the Sea, 4 with
the intriguing conclusion that manganese nodules on the deep
seabed should not be the only candidate for CHM status. He would
also, for example, include fish stocks that straddle along EEZ/high
seas regions. Baslar also appraises the situation of Antarctica,
concluding that the present system under the 1959 Antarctic
Treaty5 works too well to be abandoned. He suggests, however, that
CHM should be introduced gradually into the Antarctic Treaty
system's processes. 6

Returning to more theoretical consideration s, Baslar goes on to

gauge CHM and international environmental law within the context
of cultural and natural heritages, atmosphere, biodiversity
resources, and living resources. What might make CHM more
realistic as a pillar of world law? The mechanism he suggests is to
convert CHM into a real human right within the Third Generation of
Human Rights. This conclusion segues into an assessment of CHM's
legal status, now and in the future. Baslar emphatically rejects
alternative notions that muddy and blur the CHM concept, and hence
debilitate its potential for application.7 For him, CHM must remain
limited to the protection of globally important natural and cultural
resources that constitute a physical unity. CHM still suffers from a

3
Agreement governing the activities of States on the Moon and Other Celestial Bodies,
U.N. Doc. A/RES/34/68 (1979) (entered into force July 11, 1984).

4
United Nations Convention on the Law of the Sea, U.N. Doc. A/CONF./62/122 (1982)
(entered into force Nov. 16, 1994).
5
Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 860.

6
Compare the treatment of the common heritage concept in Christopher C. Joyner,
Governing the Frozen Commons: The Antarctic Regime and Environmental Protection
220-58 (1998).

7
Baslar is not kind to international environmental lawyers who have proposed
alternative strategies to CHM. In his view, they have "considerable responsibility for
debasing the concept [CHM] into a vulgar recast of the philosophy of saving the planet.
This is because they simplistically identified and welded the common heritage of
mankind with common interest of mankind and international public trust philosophies,
and used them interchangeably. They left no room for the accommodation of new
concepts such as the [common concern of mankind], based on the same considerations,
albeit on political terms." Baslar, supra note 2, at 314.

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 615-628, (Fall, 1999)

"congenital disease" that Baslar calls "AIDS-Abstraction in Definition

Syndrome." 8

He explores the possibility of using human rights as a medium for

spreading CHM throughout the corpus of international law.9 The key
for this lies in the Third Generation of Human Rights, which
analytically links CHM with other similar universal aspirations, e.g.,
the right to life, the right to development, the right to peace, and the
right to a healthy environment. Though he would like to have CHM
accepted as a universal and inalienable right, just as the first
generation of human rights largely has been, Baslar is quick to
observe that, at present, the right to common heritage must be seen
as soft law at best.

In the main section, the author's analysis is grounded in rigorous

scholarship. He sets out his ideas incrementally and carefully
develops them step-by-step, using the works of previous scholars to
substantiate and shape his views. This work is theoretically
sophisticated, yet pragmatically conceived. While theory propels the
analysis, the end game actually becomes the quest to apply CHM
as a legal principle to the real world of common spaces on the
planet.

As Baslar rightly observes, the critical philosophical clash between

positivist international law and CHM comes in the doctrine of state
sovereignty. 10 For positivists, international law derives from
voluntary state consent, as demonstrated by a government's
commitment to international agreements and the evinced practice of
states. State consent and acts of states thus become the bases for
international obligation and the cement holding international law
together. At the same time, though, sovereignty is the legal principle
that theoretically (and legally) allows a state to use its own resources
recklessly, exhaustively, and detrimentally, if that government
desires to do so.

Baslar disdains and challenges sovereignty as a philosophical and

legal concept, for the very reason that sovereignty undermines any
possibility of CHM's practical application to common spaces. Baslar
advocates "stewardship sovereignty" as the new philosophy to

8
Id. at 315.

9
Id. at 318-34.
10
Id. at 26.

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 Emory International Law Review

govern state interests, 11 in that the state must maintain special

global stewardship over that territory in addition to controlling its
territory. 12 Baslar goes on to suggest a new theory of international
justice based on "rational hypothetical consent" for decision-making,
borrowing Fernando Teson's concept. 13 No longer, Baslar argues,
can we afford to base interstate relations on social contracts
grounded in the actual consent of states. Rather, the need for
universal human rights must produce a basis for law in
contractarian naturalist theory. 14

What is the meaning of common heritage of mankind? Baslar

asserts that CHM is not a modified version of the res notion in
international law, and he traces the evolution of CHM from notions
associated with res communis to conclude that CHM is a functional
concept as a facet of international resource management, rather
than a territorial one. CHM is not so concerned with the ownership
of the area where resources are located (e.g., the deep seabed,
Antarctica, or the moon) as with the uses of them for the benefit of
humankind, to serve the common interest of peoples everywhere. In
that sense, if sustainable management and sharing of benefits is to
be secured, CHM must also say something about who has the lawful
right to exploit what resources and when, where, and for what
purposes such exploitation may occur. Baslar believes that for CHM
to exist in legal fact, all its definitional elements must also exist in
fact. He actually rejects nonappropriation as an element of CHM,
and replaces it with "non -exclusive use."15 In this way, functional
sovereignty is constrained in fact, without venturing into the sticky
area of ownership questions.

The analysis in this work combines law, philosophy, morality, and

policy into a theoretical synthesis that strives to set out global
justice in spatial and temporal dimensions. Baslar's hope is that this
conception of CHM might serve as legal edifice to propel a legal
transformation in the international law of resource management. In
this respect, he offers great insight into the traditional, positivist,
and liberal interpretations to determine the rules susceptible of

11
Baslar borrows the concept from A. Dan Tarlock, Stewardship Sovereignty: The Next
Step in Former Prime Minister Palmer's Logic, 42 J. Urban & Contemp. L. 21-27
(1992).

12
Id. at 24.
13
See Fernando Teson, International Obligation and the Theory of Hypothetical
Consent, 15 Yale J. Int'l L. 84 (1990).

14
Baslar, supra note 2, at 148.
15
Id. at 85-89.

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 615-628, (Fall, 1999)

being applied as a principle of CHM. In doing so, he dissects the

numerous legal terms and doctrines to provide a new level of lucidity
in this area.

The author's views are authoritatively documented. The bibliography

of some thirty-seven pages appended to the volume provides the
richest inventory of literature on CHM assembled in a single volume to
date. The author succeeds here in a comprehensive review of legal
philosophy and ethical values by examining how CHM has been
applied to particular parts of the planet, and how it should be applied
in the future.

In short, Baslar's research is truly impressive. He has read and

closely considered practically everything that has been written on the
CHM concept, and the reward for doing so is an exceptionally fine
piece of scholarship. His analysis performs a marvelous synthesis of
the literature on CHM into a new theoretical construct grounded in
public trust and aimed at stewardship. More successfully than any
other commentator, Baslar's study furnishes a copious scholarly
treatment of CHM. It will undoubtedly become the standard work on
CHM. On balance, the analysis is comprehensive, authoritative and
lucidly presented.

So, what are we to make of the substance of this study? The law of
common space resource acquisition reminds international lawyers
that the past is always present. And, in a real sense, this volume
invites as many serious questions as it attempts to answer. For
example, the elements of CHM include the common concern of
mankind.

Baslar believes that present confusion surrounding CHM delays

application of its benefits for all humankind. The key consideration is
"the collective and vital interest of all mankind." 16 He suggests that
living and nonliving resources in global common spaces should be
controlled by some international administration; the "aesthetic,
cultural, historical, ecological resources situated under national
jurisdiction should be regarded as common heritages of all mankind,
provided that they are of "vital global importance' or "common
concern of mankind.'" 17 It may be well and good to seek such ideals
on the road to international justice, but serious questions of
commission and omission remain: Who determines which resources
in what states qualify as CHM? How does one override the
jurisdictional bounds of national sovereignty? Who may lawfully
determine the fate of the Brazilian or Malaysian rain forests? The
Grand Canyon? The Antarctic continent? By what legal right may

16
Id. at 110.
17
Id. at 111.

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 Emory International Law Review

the international community decide what resources are to be CHM

resources? Is there a corresponding legal duty for governments to
comply with such a designation?

Moreover, the author's suggestion that a supranational world

organization be established to govern the natural and cultural
heritages of mankind (a Common Heritage Authority!) might appear
laudable as a construct, but utopian at best as a political possibility.
The reasons are manifestly obvious: first, someone must actually
fund such a worldwide institution. Second, permanent sovereignty
over natural resources is coexistent with statehood. This may be
asserted as a fact: so long as states remain the ultimate arbiters of
international relations, they will jealously guard control over the
allocation of their sovereign resources. Third, there can be no
supranational organization for administering CHM planet-wide
unless states agree to make it so. The scholar must never forget that
the United Nations, and all international and regional
intergovernmental organizations are at base political organizations
comprised of member states that function to obtain the best benefits
that suit those states' national interests. There can be no effective
decisions or policies taken by international organizations without
sufficient explicit support from the member states, especially the
most powerful and technologically endowed ones.

Furthermore, there is the notion of "stewardship sovereignty." The

CHM concept necessitates negation of sovereignty as a principle of
interstate dealings. The narrow national interests of the state are to
be superseded by broader, common interests of humankind. That
might be fine. But who determines what these "common interests"
should be, at whose expense and for how long?

Central to Baslar's view of universal justice, on which the true

legitimacy of CHM is purported to rest, is the notion of "rational
hypothetical consent." But, what is "rational?" Is a "rational" policy
one that benefits the people of one state, at the expense of other
states? If "rational" means "reasonable," "sane," or "agreeable," the
critical question then becomes: reasonable to whom? What is
rational to one person might be considered irrational to others. And
how can one translate "hypothetical consent" into actual consent?
Baslar would have this notion translated into utilitarianism-the
greatest good for the greatest number-and integrate that
determination into establishing CHM as the ethical and legal basis
for a new world order. While respecting the ambition of that logic, to
this reviewer it sounds all too utopian at this juncture in world
history.

Regrettably, international law, like all law, is not necessarily just.

Fundamental facts remain: sovereignty is not yet obsolete, nor is an
ethic of planetary citizenship in place to supplant its role in
international relations. The essence of sovereignty still prevails. No

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 615-628, (Fall, 1999)

authority is legally superior to the state, except that which the state
voluntarily confers to international agreements or international
organizations to which it is bound. The nature of world politics is
still mainly dependent on the state and its sovereign character.
Sovereignty connotes a special, theoretical relationship between
each state and all other states. The state retains a monopoly over
control of the use of force. Ideally, sovereignty gives states in
principle an equal legal status. International law, created to provide
some measure of order among states, views sovereignty as
predicated on the autonomy of states. International law aims to
create order though consent or self-constraint.

Baslar also contends that CHM is a product of an interdependent

world, with the resulting obligation that states either must protect
the global environment or redistribute the world's wealth. 18 While
interdependence is broadly acknowledged as a fact of contemporary
interstate relations, the conclusion that governments are therefore
confronted with a choice of duties either to protect the planet or
exploit common space resources and redistribute the wealth and
proceeds seems out of kilter with political and economic reality in
the post-Cold War world. Economic and ecological interdependence
are indeed intermeshed. That realization, in fact, spurred creation of
the concept of sustainable development that came to dominate the
Rio Conference on Environment and Development in 1992.

The argument thus is made that CHM is the product of an

increasingly economically and politically interdependent world. That
is undeniably so. But in what ways might CHM be affected by
globalization? And what ways might it affect interdependence and
globalization? These are niceties and nuances of international
political economy that will not go away. Regardless of the rectitude
of the CHM ideal, state governments and transnational business
enterprises that develop and own the requisite technology are not
going to give up that competitive advantage for the goodness of
benefi tting all mankind. These are realities of the modern world that
cannot be obviated by Baslar's cogent analysis and laudable, if
somewhat idealistic, philosophical arguments.

Baslar tempers his objectivity when he becomes an advocate for the

CHM ideal. Much of the analytical thrust of the work aims at setting
out the multidimensional facets of CHM in legal theory and examines
other authors' efforts to fit CHM to outer space (in the 1979 Moon
Treaty), the oceans (in the evolution of deep seabed mining as
codified in 1982 LOS Convention) and for Antarctica (through the
movement led by Malaysia between 1984-1989 in the UN General
Assembly). These treatments are solid, comprehensive, valuable

18
Id. at 118.

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 Emory International Law Review

scholarship. But then he veers off, contending that CHM should be

the preferred legal status for each of these common spaces. Baslar
would like to have CHM applied not only to deep seabed, but to all
nonliving resources and also to fish stocks, including sedentary
species, beyond a "reasonable" distance from the limits of national
jurisdiction, administered by a strong ocean governance authority
on behalf of all mankind. 19n19 For Antarctica, Baslar concludes
(and this reviewer heartily concurs) that the fundamental tenets of
CHM are preserved in the constellation of agreements comprising
the Antarctic Treaty System. Though there is no redistribution of
revenues derived from mineral resources on the continent, there also
will not be large scale mineral exploitation under the Protocol for at
least fifty years.

Baslar is at his best in critically analyzing the philosophical

implications of concepts and elements comprising and emanating from
CHM. His treatment is shakiest, as one might expect, in proposing
solutions for changing the contemporary Westphalian state system
that is based on sovereignty considerations. Baslar's analysis suffers
when he veers from philosophical and legal analysis into moral and
ethical prescription. A sense of philanthropy creeps in, even though
he disavows that intention.20

We must cooperate in exploiting the commons through a CHM

regime, Baslar avers, because such a mechanism will best ensure
the possibility that global, social, and environmental catastrophes
such as hunger, poverty, and pollution might be alleviated. Laudable
and truly noble aspirations, but in a world of sovereign states, many
would brand that view as politically naive and simply idealistic.

Conclusion

There is no question that we live in a special time, with unique

historical considerations that surely influence the development and
institutions of international law. This period, in my view, might be
called "The New Era." At the dawn of a new millennium, we find
ourselves in a post-Cold War world, where ideological clashes of East
and West have largely given way to economic co-existence between
North and South. There has occurred the triumph of democracy,
liberalism, and private free-enterprise capitalism over communism,
socialism, and equity for all. Yet, this is also a post-New

19
Id. at 240-41.
20
Id. at 203-04.

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 615-628, (Fall, 1999)

International Economic Order era, in which the economic strategies

of the developing states must be weighed with the practical realities
of those developed states that control technologies. There is a need
for a theory of justice that will be fair to the rich as well as the poor,
keeping in mind the welfare of future generations. The New Era also
finds certain traditional interpretations of sovereignty under legal
challenge, especially regarding human rights conditions and
humanitarian considerations. Sovereignty no longer seems
sacrosanct, especially given that the number of international
interventions taken by the United Nations, multilateral coalitions,
and regional organizations have escalated dramatically, but
selectively, to rectify what are viewed as unjust conditions in some
unjust national societies. Critical also is the realization that this
New Era comes in the aftermath of the Rio Summit, that there is a
world environment, and that economic issues are inevitably
intermeshed with one another. The use of national sovereignty
should be constrained such that one state's industrialization
processes do not precipitate environmental abuses suffered by other
states or the global commons.

For Baslar, justice can neither be defined nor debated within the
confines of capitalism, socialism, or democracy. His main task in this
volume is to examine whether and how the concept of CHM can be
integrated into the corpus of contemporary international law as a
legitimate legal norm in the New Era. In the multicultural global
society that is the New Era, with multiple forms of law, justice, and
property rights, globalized by instantaneous information and
communications media, Baslar seeks to evaluate the notion of CHM
within the context of national security in an internationally unsure
world. However, he pursues a normati ve approach in order to assess
conceptual and legal problems arising from the incorporation of CHM
into the practices and institutions of contemporary international law,
and this approach can be problematic.

Finally, what must be made of the contemporary legal status of

CHM? It is true that CHM has emerged as a legitimate principle of
treaty law, as specifically codified for those states party to the 1982
Law of the Sea Convention (Article 136) and the Moon Treaty (Article
XI). Even so, the application and enforcement of CHM as a general
principle of international law will only come about if other
fundamental principles underpinning international law are
rethought and reconfigured. For CHM to become accepted as a legal
reality that obtains economic and social justice for all humankind,
well-established principles such as sovereignty, acquisition of
territory, international personality, human rights, and humanitarian
intervention will have to be re-examined and profoundly modified.
That is not likely to happen in the foreseeable future, especially in a
world political system dominated by states. So long as there are
consent-based sources of international law-international agreements

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 Emory International Law Review

and customary law derived from the practice of states-CHM will

remain more ideal than real, more fancy than fact.

The sovereign state will not soon be replaced by a supranational

world government, nor are the Great Powers today likely to
surrender their privileged legal positions-much less their security,
economic, or political capabilities-so that the rest of humanity might
be given more opportunities and greater benefits. But Baslar is
correct in the end: for CHM, as envisioned in this study, to emerge
into universal international law, the dark veil of ignorance and
selfishness must be lifted from the priorities of politicians. For CHM to
eventuate in fact, there must be a global society guided by leaders
who are devoted to the "stewardship ethic," devoted to securing
justice, equity, opportunity, and integrity for all humankind. That
day is not near. Regrettably, if the best that can be expected is
"hope," as Baslar concludes, the evolution of CHM as a viable and
well-recognized legal principle for regulating affairs between peoples
and polities may be light years away.

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615-628, (Fall, 1999)

12
 Emory International Law Review

Martinus Nijhoff
Publishers, The Concept of the Common Heritage of Mankind in
The Hague International Law
Hardbound, ISBN
90-411-0505 -0 By Kemal Baslar
The concept of the common heritage of mankind is one of the most extraordinary
December 1997, developments in recent intellectual history and one of the most revolutionary and radical
legal concepts to have emerged in recent decades. The year 1997 marks the thirtieth
464pp.
anniversary of the advent of the concept in the domain of public international law. Ever
EUR 169.00 USD since its emergence, it has become evident that no other concept, notion, principle or
197.00 GBP doctrine has brought as much intensive debate, controversy, confrontation and speculation
122.75 as the common heritage phenomenon did. This is because it is a philosophical idea that
questions the regimes of globally important resources regardless of their situation, and
Developments in requires major changes in the world to apply its provisions. In other words, the application
International Law, 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
Volume 30 acquisition of territory, consent-based sources of international law, sovereignty, equality,
resource allocation and international personality.
This book aims to explore the legal theory and implications of the concept of the
common heritage of mankind. It addresses almost all aspects of the concept in the light of
the experience of three decades. The author takes into account the elements of the common
heritage concept in the fields of jurisprudence, outer space law, the law of the sea, the law
of Antarctica, international environmental law, human rights and general principle s of
public international law. It tries to develop a normative framework through which the
concept may offer alternatives for the governance of the global commons.

http://www.wkap.nl/book.htm/90 -411-0505 -0

13