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Common-Heritage-Mankind
by Kemal Baslar
Contribution to Encyclopedia of the Barents Region, Vol. 1 A–M and Vol. 2 N–Y, 2016

The common heritage of mankind (CHM) has been originally envisaged to be a regime for
exploiting and sharing the resources of the deep seabed and outer space. In the 1960s, when
the immense potentials of the deep seabed were discovered, the land-based mineral-
producing countries and socialist countries feared that the technological abyss between the
industrialized western states and the developing world could further aggravate the
inequalities between the rich and the poor. To prevent the technologically advanced states
from utilising the resources of the oceans under res communis principle, they endorsed
CHM ideal, being introduced by the Maltese Ambassador Arvid Pardo before the UN
General Assembly in 1967. In the 1970s, the developing countries overtly used CHM as a
means to redistribute the world wealth on the way to establishing a new international
economic order. Backed by the Third World and the Socialist States, Pardo’s suggestion that
the deep seabed and ocean floor and its resources be declared as CHM was formalised
through a UN General Assembly Declaration in 1970 and later transferred to Article 136 of
the 1982 Convention on the Law of the Sea.
The Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies of 1979 (known as the Moon Treaty) is known to be the first treaty which brought
the common heritage phrase from a philosophical and moral realm into the domain of
positive international law. The Moon Treaty applies to the Moon and to other celestial
bodies within the Solar system, other than the Earth, including orbits around or other
trajectories to or around them. Corollary, Article 11 of the Treaty confines the scope of
CHM to the Moon and its natural resources. Therefore, the Moon Treaty excluded the
application of CHM to the geostationary orbit, La Grange positions, the spectrum of radio-
frequencies used for space communication and solar energy.
Even though Antarctica was proposed in the 1980s to be proclaimed as another
CHM, such proposals have not been formally incorporated into the Antarctic Treaty System
hitherto. In 1991, the Protocol on Environmental Protection to the Antarctic Treaty was
adopted. It designated the Continent as a ‘natural reserve devoted to peace and science’ and
stated that the development of a comprehensive regime is in the interest of mankind as a
whole. Some of the elements of the legal regime established by the Protocol reflect features
of a World Park, a derivative concept of CHM. Those who regard Antarctica as a CHM
consider that the Antarctic Treaty System, satisfies the basic elements of CHM such as
peaceful uses, partial non-appropriation, enlarging international administration mechanism,
the rational use of resources with due attention to the protection of the environment and
sharing of scientific information.
In the early 1980s, CHM has become part of human rights discourse. CHM was
suggested as one of the third generation of human rights. In this vein, CHM could be said to
have ties, inter alia, with the right to life, the right to sustainable development, the right to
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environment, the right to receive humanitarian assistance and the right to intergenerational
equity. The only treaty accommodating CHM as a human right is the 1981 African Charter
on Human and Peoples’ Rights. According to Article 22/1 of the Charter, “All peoples shall
have the right to their economic, social and cultural development with due regard to their
freedom and identity and in the equal enjoyment of the common heritage of mankind”.
In the late 1980s, environmentalists extended CHM to global cultural and natural
heritages of our planet, wherever they be located. CHM concept became a part of
international environmental law especially with respect to preserving outstanding cultural
and natural heritages, deep seabed cultural heritage, the atmosphere, climate change, rain
forests, all food resources, marine living resources and protection of the fauna and flora. The
International Undertaking on Plant Genetic Resources, adopted in 1983 by the FAO
Conference (Resolution 8/83), states that plant genetic resources are a heritage of mankind.
Nevertheless, the International Treaty on Plant Genetic Resources for Food and Agriculture,
which replaced the 1983 Undertaking in 2001, does not make reference to heritage of
mankind phrase. The Universal Declaration on the Human Genome and Human Rights,
adopted in 1997 at UNESCO's 29th General Conference, states in its Article 1 that human
genome is, in a symbolic sense, the heritage of humanity. Several global treaties, such as the
Kyoto Protocol to the UN Framework Convention on Climate Change, utilizing the
‘common interest’ terminology, may be seen to have affirmed CHM concept. Due to the
difficulty in the application of CHM to environmental law, there is no common
understanding as to the implication of CHM for the protection of the environment,
biodiversity resources, plant genetic resources and human genome. Accordingly, alternative
terms such as ‘common interest of mankind’ and ‘common concern of mankind’ have been
developed so as to accommodate the essence of CHM in environmental law.
When conceptualised as a resource management model for the global commons that
are beyond national jurisdiction, the following are accepted as common characteristics of
CHM: (1) The areas designated as CHM shall not be appropriated; (2) the use of the areas
and their resources which fall under CHM regime will be governed and managed by an
international authority; (3) there will be active and equitable sharing of benefits derived
from the exploitation of the common heritage areas and its resources; (4) areas and
resources concerned will be used peacefully and for the betterment of mankind; and (5)
CHM areas will be protected and preserved for the benefit and interest of the present and
future generations.
When considered as a tool for the protection of the environment, the characteristics
of CHM change significantly. In this parlance, various concepts are embedded into the
framework of CHM such as international cooperation, equitable burden sharing, technology
transfer, responsibility towards future generations, public trust, stewardship ethics and
sustainable development.
The most fully-fledged form of CHM as a regime is articulated in the 1982
Convention on the Law of the Sea. The International Seabed Authority, established in 1994
and became fully operational as an autonomous international organization in June 1996, was
vested in the power to organize and control activities in the deep seabed Area, particularly
with a view to administering the resources of the Area. All the same, as the provisions of
Part XI of the 1982 Convention concerning the implementation of CHM distracted
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technologically advanced states, a compromise was given through the 1994 Agreement
Relating to the Implementation of Part XI, which has significantly modified the deep seabed
regime to convince the developed states to ratify the 1982 Convention. The mandatory
transfer of technology, production limitation, compensation fund, a preferential role for the
Enterprise and a more democratic institutional framework were amended so as to please the
developed states. Therefore, the 1994 Agreement has seriously decreased the impact of
CHM for developing states.
As to outer space, 1979 Moon Treaty failed to attract states having space technology.
It has only been ratified by 13 countries until 2012. The absence of space-faring states
among parties as well as economic and technological impediments prevent CHM from
becoming a well-accepted legal principle and applicable regime of outer space law.
In international environmental law, common concern of mankind is more
appropriate term than CHM. Since the common concern language is flexible enough, it is
therefore a suitable drainage to divert the massive flow of non-legal elements from CHM
concept into the domain of international politics of the environment. States protect the
environment by establishing decentralized networks whose participants are not only states
but also all non-state actors without establishing a centralized CHM authority. To protect the
environment States have established funds and equitably share burdens, which are akin to
common heritage fund.
As to its application to areas and resources that are within the boundaries of states,
CHM is a challenge to Westphalian model of International Law. The twin notions of state
and sovereignty on the one hand and treaties and custom on the other are stumbling blocks
for CHM in that states which uphold the Westphalian international system dissent giving
their affirmative consent in order CHM to acquire the status of a legal principle through
state practice and treaties. That is why, the application and enforcement of CHM require a
critical re-examination of many well-established principles and doctrines of traditional
international law such as the acquisition of territory, sovereignty, sovereign equality,
international personality, individual human rights and humanitarian intervention.
Even though almost half a century passed ever since its advent to the international
law realm, there is no comprehensive and widely-agreed definition of CHM. Let alone an
acceptable definition, there is not a single descriptive term to refer to. International lawyers
have so far used such different terms as concept, notion, ideal, doctrine, regime, principle,
right and rule to describe this inchoate term. The lack of general consensus on the scope of
CHM, various interpretations and its usage in non-legal parlance (e.g. in anthropology,
archaeology, philosophy, theology and economics) prevent it from becoming a legal
principle of international law. As states still represent the present and future generations,
mankind cannot be said to have emerged as a new international legal personality.
Only in relation to the deep seabed, it could be said that CHM is akin to jus cogens
status in view of the fact that Article 311/6 of the 1982 Convention provides that no
amendment will be made to the ‘basic CHM principle’. This means that after 1994, the core
of the concept, that is non-appropriation and international management has been accepted
rather than the far-fetched CHM ideal conceived in the 1970s. The core of CHM has also
become part of customary international law for outer space. It entails general legal
obligations with respect to the utilization of areas beyond national jurisdiction rather than
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specific provisions imposed by the developing world. Today, CHM, is still a part of
international legal discourse in the context of globalisation, constitutionalism,
cosmopolitanism, international public order, rule of law, democracy, unity and
fragmentation of international law, international solidarity and intergenerational justice.
Despite that the type of CHM envisaged in the Cold War era decayed within four decades, a
rejuvenated form of CHM, as a philosophical, moral altruistic, egalitarian and political ideal,
still has the potential to solidify as a legal principle and a human right in the Post-
Westphalian era.

Kemal Baslar
Ankara

References and Suggestions for Further Reading

Baslar, Kemal, The Concept of Common Heritage of Mankind in International Law,
(Dordrecht: Martinus Nijhoff Publishers, 1997).
Brunnée Jutta, ‘Common Areas, Common Heritage, and Common Concern’, in Daniel
Bodansky, J. Brunnée and Ellen Hey (eds), The Oxford Handbook of International
Environmental Law, (Oxford: Oxford University Press, 2007), 550-573.
Chemillier-Gendreau, Monique, ‘The Idea of the Common Heritage of Humankind and its
Political Uses’, Constellations, Vol. 9/3, 2002, 375-389
Egede, Edwin, Africa and the Deep Seabed Regime: Politics and International Law of the
Common Heritage of Mankind, (Heidelberg: Springer, 2011).
Franckx, Erik, ‘The International Seabed Authority and the Common Heritage of Mankind:
The Need for States to Establish the Outer Limits of their Continental Shelf’, The
International Journal of Marine and Coastal Law, Vol. 25/4, 2010, 543-567.
Holmila, Erkki, ‘Common Heritage of Mankind in the Law of the Sea’, Acta Sociatatis
Martensis, 2005, 187-205. < http://www.martens.ee/acta/1/187-205_Holmila.pdf>
Joyner, C. Christopher, ‘Legal Implications of the Concept of Common Heritage of
Mankind’, International Comparative Law Quarterly, vol. 35, 1986, 190–199.
Koivurova, Timo, ‘Alternatives for an Arctic Treaty - Evaluation and a New Proposal’,
Review of European Community and International Environmental Law, Vol 17/1, 2008,
14-26. Available at SSRN: http://ssrn.com/abstract=1860305
Pinto, Moragodage C. W., ‘“Common Heritage of Mankind”: From Metaphor to Myth and
the Consequences of Constructive Ambiguity’, in Jerzy Makarczyk (ed.), Theory of
International Law at the Threshold of the 21st Century: Essays in Honour of Krysztof
Skubiszewski (The Hague: Kluwer Law International, 1996), 249--268
Pureza, José Manuel, ‘Defensive and Oppositional Counter-Hegemonic Uses of
International Law: From the International Criminal Court to the Common Heritage of
Humankind’, in Boaventura de Sousa Santos (ed.), Law and Globalization from Below:
Towards a Cosmopolitan Legality, (Cambridge: Cambridge University Press, 2005),
267-280
Shackelford, Scott J., ‘The Tragedy of the Common Heritage of Mankind’, Stanford
Environmental Law Journal, Vol. 27, 2008, 102-157. Available at SSRN:
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http://ssrn.com/abstract=1407332
Sturges, Melissa L., ‘Who Should Hold Property Rights to the Human Genome? An
Application of the Common Heritage of Humankind’, American University
International Law Review, Vol 13, 1997, 219-261.
Wolfrum, Rüdiger, ‘Common Heritage of Mankind’, Online Edition of the Max Planck
Encyclopedia of Public International Law, edited by Rüdiger Wolfrum, Oxford
University Press, (Last updated November 2009).