1 ACTA SOCIETATIS MARTENSIS (2005) 187205

Common Heritage of Mankind

in the Law of the Sea
Erkki Holmila
*

INTRODUCTION
Issues relating to the law of the sea are undeniably of pivotal importance.
Despite their importance, or perhaps due to it, there have always been many
controversies clouding these issues. One of them is the concept of common
heritage of mankind which started to emerge in the late 1960s. The Third
Conference on the Law of the Sea,
1
which finally lead to the Convention on the
Law of the Sea 1982,
2
opened in 1973.
3
The Convention was adopted in 1982,
but only entered into force on 16 November 1994. Only after a special
agreement was reached in 1994 in relation to deep seabed, known as the
Area,
4
the Western states joined en masse.
5


*
LL.M., University of Helsinki.
1
Hereinafter referred to as UNCLOS III.
2
Hereinafter referred to as UNCLOS 1982.
3
For more information, see for example Kari Hakap, Uusi kansainvlinen merioikeus (Helsinki:
Lakimiesliiton kustannus, 1988), pp. 1124; Robin Churchill & Vaughan Lowe, The Law of the Sea
(2nd edn, Machester University Press, 1988), pp. 119, in particular pp. 1119; Oceans: The Source
of Life, United Nations Convention on the Law of the Sea: 20th Anniversary (19822002),
<www.un.org/Depts/los/convention_agreements/convention_20years/oceanssourceoflife.pdf
> (26.8.2004), pp. 1112.
4
Article 1(1) of UNCLOS 1982 stipulates that Area means the seabed and ocean floor and subsoil
thereof, beyond the limits of national jurisdiction. For the entry into force of the convention, and
legal issues surrounding it, see generally Najeeb Al-Nauimi & Richard Meese (eds), International
Legal Issues Arising under the United Nations Decade of International Law (The Hague: Martinus
Nijhoff Publishers, 1995), Chapter III. For issues relating to the 1994 Agreement, see Law of the
Sea Forum: The 1994 Agreement on Implementation of the Seabed Provisions of the Convention
on the Law of the Sea, 88 American Journal of International Law (1994) 687714.
5
However, some caution is at place. An examination of the membership of the convention shows
that between 1982 and 1993 60 states ratified the convention. After the convention was modified
in 1994, the membership has gone up to 145 (as of 16.7.2004; for more information see
<www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#The%20Unit
ed%20Nations%20Convention%20on%20the%20Law%20of%20the%20Sea> (26.8.2004). In this
light, it seems that the convention has not had a dramatic increase in terms of membership.
Rather, the continuing rate of joining has remained somewhat linear. States that joined after the
1994 Agreement include, inter alia, all European Community (EC) countries (not to mention the
EC itself), with the exception of Luxemburg and Denmark. Luxemburg has signed the 1994
Agreement, so it is also bound to join UNCLOS 1982. Japan, Russia, India, Australia, Canada and
the United States are not parties to either UNCLOS or the 1994 Agreement. However, the United
States have signed the latter and thus if it intends to ratify it, it must also accede to UNCLOS 1982.
188 ACTA SOCIETATIS MARTENSIS
The importance of these issues is easily discovered. The United Nations 20th
anniversary report on the law of the sea, Oceans: The Source of Life, identified
the marine resources in the deep seabed to be worth nearly 1 trillion USD per
annum.
6
According to the report, 90 per cent of the trade between nations is
transported by sea. The offshore oil production is of 18,600 million barrels of oil
per day (about 30 per cent of the total production), whereas offshore gas
production counts for approximately half of the total production.
7
Geo-
graphically, the oceans cover 72 per cent of the earth surface. With these
considerations in mind, not to mention the cultural, historical and scientific
importance of the oceans, it is easy to understand why states, as well as the
international community as a whole, have a strong interest in establishing a
viable regime for the exploration and exploitation of the marine environment.
This article concentrates on the concept of common heritage of mankind as it
is found in Part XI of the United Nations Convention on the Law of the Sea
1982 and in customary international law. Their importance is not merely
academic but goes to the heart of the issue, namely: who has the legal capacity
to make use of seabed mineral and resources?
While the following does not attempt to arrive at a definition of the concept
of common heritage of mankind in international law (and in the law of the sea
in particular), different practical and conceptual issues relating to it will be
considered to argue that there are several areas that need further study and
clarification. This article will start with briefly considering the law of the sea in
historical context and a brief tour dhorizon of the common heritage of mankind
in UNCLOS 1982. Common heritage of mankind will then be considered from
two interrelated perspectives: its general characteristics and its governing
principles. Consequently, it will be briefly examined if there are any third party
effects. In particular, the scope of customary law will be considered.
1. HISTORICAL DEVELOPMENT OF THE CONCEPT
The concept of common heritage of mankind is usually attributed to Maltese
Ambassador to the United Nations, Arvid Pardo.
8
The prevailing legal regime
at the time, the Convention on the Continental Shelf (1958), did not seem
satisfactory as it failed to limit the maximum national jurisdiction that states
could claim as a continuation of their continental shelf.
9
Thus, there was a
potential risk that the whole seabed would become subject of claims of national
jurisdiction.

6
Oceans, supra nota 3, p. 6.
7
Ibid., p. 13.
8
There is plenty of literature on the development of the doctrine. For an overview, see Antonio
Cassese, International Law in a Divided World (Oxford, Clarendon Press: 1988), pp. 379384.
Interestingly, two decades after the emergence of the concept, Pardo wrote that the motives
behind his articulation of common heritage of mankind were not quite as philanthropic as one
might have imagined. See Arvid Pardo, The Origins of the 1967 Malta Initiative, 9 Inter-
national Insights (Fall 1993), No. 2, 6569.
9
See Articles 12 of the Convention on the Continental Shelf, Geneva, 29.4.1958, in force
10.6.1964, 499 UNTS 311.
HOLMILA / COMMON HERITAGE OF MANKIND IN THE LAW OF THE SEA 189
Addressing the Council of Europe, on 3 December 1970, he stated:
Traditionally, international law has been essentially concerned with the
regulation of relations between states. In ocean space, however, the time has
come to recognize as a basic principle of international law the overriding
common interest of mankind in the preservation of the quality of marine
environment and in the rational and equitable development of its resources
lying beyond national jurisdiction.
10

Pardos vision rested on two points. Clearly, the seabed environment was to be
reserved for peaceful purposes only and marine research was to be encouraged
and promoted. All states agreed, and still do, on these points. Another point of
agreement is that there should not be claims of national jurisdiction over the
deep seabed. It belongs to the mankind as a whole. However, this is where
consensus ends. The most pivotal question for present purposes is not whether
there can be claims of national sovereignty, but rather, who has the right to
administer and utilize the rich seabed.
Pardos proposal was based on the idea that the seabed could only be
administered by an international organ and that its resources were not subject
to national appropriation. Thus, an ad hoc committee on the Peaceful Uses of
the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction
was appointed.
11

From the Western point of view, this seems highly controversial, perhaps
even an unreasonable curtail of their sovereignty. International law has
traditionally been geared towards self-interest through a laissez-faire approach,
where states are free to engage themselves in any activity (subject to certain
ground rules, such as the duty not to violate other states rights).
12
Why, then,
should Western states, states with the capacity and ability to make use of the
riches of the seabed, suddenly capitulate to those poorer states that were not
even in the position to make use of the seabed? Indeed, this is the crux of the
problem for most Western states: they are not used to being told by
international law to be good Samaritans.
The problem with common heritage of mankind is thus easily conceived.
However, a new legal concept is arguably taking ground and can be seen in
other areas of law as well. Nevertheless, there are many disputed issues in
relation to the nuts and bolts of the concept.
The concept of common heritage of mankind started to emerge in the United
Nations General Assembly Resolutions in the late 1960s and early 1970s. The
first articulation, albeit not express, was in General Assembly Resolution 2574
(XXIV), the so-called Moratorium Resolution.
13
In the preamble it was

10
Alexander Kiss, The Common Heritage of Mankind: Utopia or Reality? Hugo Caminos
(ed.), Law of the Sea (Aldershot, Hants: Ashgate/Darthmouth, 2001), p. 324 (emphasis added).
11
GA Res. 2467 (XXIII), 21.12.1968. See Hugo Caminos & Michael R. Molitor, Progressive
Development of International Law and the Package Deal, 79 American Journal of International
Law (1985) 871890, p. 874.
12
The Case of the SS Lotus (France/Turkey), Judgment, PCIJ Series A, No. 10 (1927) 4.
13
GA Res. 2574 (XXIV), 15.12.1969, Question of the Reservation Exclusively for Peaceful Purposes
of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond
the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of
Mankind. It should be noted that the resolution in question did not expressly employ the term
190 ACTA SOCIETATIS MARTENSIS
recognised that the deep seabed belongs to the mankind as a whole, and no
claims of jurisdiction should be made or recognised. It also declared that
[s]tates and persons, whether physical or juridical, are bound to refrain from
all activities of exploitation of the resources of the area of the sea-bed and
ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction.
It further stated that no claims to the area and its resources should be
recognised. It should be noted that most Western States voted against the
resolution. It was only with the support of the so-called Group of 77
14
that the
resolution was adopted.
15
Western states also stated that they did not consider
themselves bound by this resolution.
16

More important for the present purposes is the resolution that followed soon
after, that is the General Assembly Resolution 2749 (XXV).
17
The declaration
contains a set of principles that were largely incorporated in the UNCLOS
1982.
18

These are the most important General Assembly Resolutions.
19
Their
common denominator, either expressly or implicitly, is the concept of common
heritage of mankind. It is perhaps accurate to say that this is a vague concept
that is hard to be described in terms of legal rules. However, these resolutions
clearly tried to make it a legal concept.

common heritage of mankind, but rather referred to common interest of mankind and
benefit of all mankind.
14
The Group of 77 is an international organisation established in 1964 by 77 developing countries,
by a Joint Declaration of the Seventy-Seven Countries at the first session of UNCTAD in
Geneva. Currently it has 133 members, but the name has been retained for historical reasons,
see <www.g77.org/main/main.htm> (26.8.2004).
15
See <www.imli.org/docs/A89.DOC> (21.12.2005). 62 states voted in favour of the resolution,
whereas as 28 voted against it and 28 abstained from voting.
16
Cassese, International Law in a Divided World, supra nota 8, p. 383.
17
Declaration of Principle Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof,
beyond the Limits of National Jurisdiction, GA Res. 2749 (XXV), 17.12.1970.
18
These principles include, inter alia, the following: (1) The area in question is considered the
common heritage of mankind; (2) The area is not subject to appropriation (whether by states or
individuals) and no claims of sovereignty can be asserted over it; (3) No one shall acquire any
right on the area that are incompatible with the declaration or the regime to be established;
(4) All activities with respect of exploration or exploitation are governed by regime to be
established; (5) The area is reserved for peaceful purposes; (6) The exploration and exploitation
is carried for the benefit of the mankind as a whole, taking into particular consideration the
needs of the developing states; (7) There is a treaty with universal application to be established
to govern the area.
19
This is not to say that they are the only important ones. For example, GA Res. 3029 (XXVII),
18.12.1972, reinforced the prevailing regime that the seabed was to be reserved exclusively for
peaceful purposes and that it is an area beyond national jurisdiction. Another General
Assembly resolution on the matter was that of GA Res. 3067 (XXVIII), 16.11.1973. The most
important one, however, must be GA Res. 48/263, 28.7.1994. The resolution in question deals
exclusively on the implementation of the part of UNCLOS 1982 which regulates the use of deep
seabed.
HOLMILA / COMMON HERITAGE OF MANKIND IN THE LAW OF THE SEA 191
2. OUTLINE OF COMMON HERITAGE OF MANKIND IN THE LAW
OF THE SEA
Part XI of the UNCLOS 1982 is titled the Area, a term which covers the
seabed and ocean floor and subsoil thereof, beyond the limits of national
jurisdiction.
20
As is well known, the Area and its resources
21
are the common
heritage of mankind.
22
Accordingly, special rules were drafted for the
exploitation of resources. As noted above, the issue is highly controversial and
led to the rejection of UNCLOS 1982 by many Western states. Most notably, the
United States (US) and the United Kingdom rejected the convention, despite
the fact that President Johnson had already echoed the importance of
international governance of the seabed:
Under no circumstances, we believe, must we ever allow the prospects of a
rich harvest of mineral wealth to create a new form of colonial competition
among the maritime nations We must ensure that the deep seas and the
ocean bottom are, and remain, the legacy of all human beings.
23

Thus, it did not appear that the US was against the common heritage of
mankind per se. What they were objecting was the particular articulation of the
concept in UNCLOS 1982. Article 137 gives the following legal status to the
Area and its minerals.
Firstly, no claims or exercise or sovereignty or sovereign rights will be
permitted.
24
Accordingly, all the resources in the Area are not subject to
appropriation by anybody, subject to the treaty regime itself of course, be it a
State or natural or juridical person. This prohibition to claim sovereignty is also
backed with a prohibition to recognize others potential claims.
Secondly, and perhaps more controversially, it is declared that [a]ll rights
in the recourses of the Area are vested in mankind as a whole.
25
This
provision engenders some legal dilemmas. These will be considered in greater
detail below, but for the present purposes some general remarks are necessary.
Firstly, high seas (at that time arguably including the seabed) were res
communis, common possession. Common possession, it is often argued, should
not be mixed with questions of ownership. States as well as individuals had the
right to use res communis freely as long as it did not impede other peoples
similar rights. However, in order to make legal sense of the provision in
question, one has to make another distinction. Seabed must be separated from
its resources, that it to say, that they must be considered as different domains.
For if they were not, the legal title in the minerals would be incapable of being
transferred and any prospects of mineral exploitation would be obsolete. One

20
UNCLOS 1982, Article 1(1).
21
Ibid., Article 133(a): resources means all solid, liquid or gaseous mineral resources in situ in
the Area at or beneath the seabed, including polymetallic nodule. When those resources are
recovered, they are referred to as minerals (Article 133(b)).
22
Ibid., Article 136.
23
Quoted in Martin A. Harry, The Deep Seabed: The Common Heritage of Mankind or Arena for
Unilateral Exploitation?, 40 Naval Law Review (1992) 207228, p. 209.
24
UNCLOS 1982, Article 137(a).
25
Ibid., Article 137(b).
192 ACTA SOCIETATIS MARTENSIS
way to make sense of Article 137(b) is to argue that it is based on legal fiction,
that it only makes sense if it treats minerals as res nullius, that is, finders keep.
The second possible problem is more pragmatic: some might not be satisfied
with the assumption made above, that an international conference is able to
pass legal title of something that belongs to everybody. Here the problem lies
in the basic principle of treaty law that a treaty cannot create obligations or
rights on third parties without their consent.
26
Thus, in order for the Article
137(b) to be valid in relation to third parties, it must also be consented to by
them. The problem here is, of course, that those states that are not parties to the
treaty might object the regime in question and prefer asserting national
sovereignty and private ownership over the resources. Hence, transferring the
legal title of the resources can only have effect in relation to the states that are
parties to the treaty. In relation to most treaties, it would not be problem to
create legal rights and obligations between the parties. In this instance,
however, the obligation that has been created concerns the mankind as a
whole, not merely contracting parties.
Thirdly, it is stipulated (paragraph 3 of the article in question) that no person
(be it a state or an enterprise) can acquire rights in relation to the minerals,
other than in accordance with other provisions of the regime, and that states
shall not recognise any claim or acquisition of such right.
27
Here, the same
problem as above applies.
These are the fundamental legal principles governing the Area, at least in
relation to the common heritage of mankind.
28
However, there are numerous
other provisions describing the nature of the regime.
29

3. THE RATIONALE FOR COMMON HERITAGE OF MANKIND
In order to understand the concept of common heritage of mankind in pers-
pective, it is perhaps useful briefly to point out some general characteristics.
This will be done in a comparative manner, in relation to other regimes that are
largely considered to be common heritage of mankind. Admittedly, different
areas of the common heritage of mankind have characteristics that are

26
Vienna Convention on the Law of Treaties, Vienna, 23.5.1969, in force 27.1.1980, 1155 UNTS 331,
Article 34.
27
UNCOLS 1982, Article 137(c).
28
However, it is acknowledged that this is not the only view taken by international lawyers. In
particular, environmental lawyers argue that the common heritage of mankind concept relates
environmental protection articles in UNCLOS 1982, most notably Article 145. Taylor writes that
CHM reflects and affirms the traditional environmental ethic, but unlike the other principles of
international law it also encapsulates some important features of a new environmental
ethic. See Prue Taylor, An Ecological Approach to International Law, Responding to the Challenges of
Climate Change (London & New York: Routledge, 1998), p. 292.
29
These provisions deal with other hotly disputed aspects of the law of the seabed, such as
dispute settlement provisions (Part XV), transfer of intellectual property rights in relation to
exploration (Article 144 and Article 5 of Annex III), sharing of benefits, et cetera. It can be said
that these provisions are even more problematic than the ones described above. Arguably the
biggest reason for many states to reject the treaty was the transfer of technology provisions that
were argued to be a violation of private intellectual property rights.
HOLMILA / COMMON HERITAGE OF MANKIND IN THE LAW OF THE SEA 193
sometimes hard to combine with each other, but it is believed that there are
certain elements that they all share, elements that make them distinctive. This
comparative approach will also serve to clarify and explain the elements of
common heritage of mankind in the law of the sea. These other regimes share
certain similarities to the law of the sea, especially the fact that they contain
valuable resources that have a potential to be an object of exploitation in some
future day.
3.1. Common Interest
The first and foremost characteristic of the common heritage of mankind is that
its purpose is to advance public or common interest. However, this does not
make it distinct from any other area of law: it is easily conceived that most
laws, as general system of commands, are designed to accommodate public
interest. Thus, something more fundamental is required. It is clear that regimes
of common heritage of mankind have public interest in their development in
several senses of the word. Most obviously, they are regimes that have a
particular importance to economic development and to the world of science.
Professor Taylor argues that it is the notion of common interest that makes
the common heritage doctrine the most suitable for several areas, such as the
environmental law issues. Of course, it could be dealt by other areas of law,
such as the state responsibility, but the latter is mainly based on the protection
of sovereign self-interest, and thus perhaps not an appropriate response.
30
As a
result of the recognition of common interest, it shall be seen later how
common heritage is often subject to some common management mechanism.
3.2. Non-renewable Resources
Another common feature is that the resources in the common heritage of
mankind are generally non-renewable. Thus, it can be argued that they should
not be subject to free exploitation but, rather, there should be an international
regime balancing the powers and interests of states. This feature is also an
important distinction between res nullius on the one hand, and common
heritage on the other. One can, for example, compare the fish stock in the
oceans to the minerals on the moon. Since the fish are a renewable recourse,
there is perhaps less impetus to regulate their utilisation.
31
Polymetallic
nodules, on the other hand, are exhaustible.
32
If one considers that passing of
property to future generations constitutes one of the important principles of
common heritage of mankind, then it makes perfect sense that areas of non-

30
Taylor, An Ecological Approach to International Law, supra nota 28, p. 278.
31
However, this is by no means to deny the need to regulate fishing in the high seas, nor to deny
the problem the over fishing.
32
As stated by Dyke & Yuen, the polymetallic nodules are an exhaustible resource; unlike fishing
and navigation, which can be done by many nations at once, profitable seabed mining sites are
limited; and a claim by one nation will definitely diminish the resources available to other
(quoted in Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law (Helsinki:
Lakimiesliiton Kustannus, 1988), p. 562).
194 ACTA SOCIETATIS MARTENSIS
renewable resources should be considered as common heritage, provided that
they also share other important characteristics.
3.3. Scientific Value and Research
The areas that are commonly thought to be common heritage of mankind are of
the utmost importance to the scientific community and, by extension, to the
mankind. They all represent highly specialised and unique domains, with
characteristics that are not present in other areas. For instance, the Antarctic is
recognised to be of utmost importance in the study of climate change.
33
The
study of human genome is said to contain the past, the present, and the future
of mankind.
34
The study of human genome is pivotal for the development of
medical science and thus very much linked with the interests of mankind. Same
could be said about the exploitation of seabed. As UNCLOS 1982 recognises,
maritime research is an important objective that should be advanced.
35

3.4. Financial Value
For cynical minds, this cannot pass without mentioning. All regimes that are
usually considered to be common heritage of mankind are of immense
monetary value. It was seen above that the marine resources of the seabed are
worth an estimated 1 trillion USD per year.
36
Nothing less is true about the
resources on the moon, and perhaps sadly, the exploitation of the human
genome. However, this is merely a characteristic of the regimes in question, but
intuitively, it arguably bears a sad Hobbesian concession about the nature of
mankind.
3.5. Limited Availability
The resources in the deep seabed are not like the fish in the sea. Their
exploitation requires vast amounts of capital, both monetary and technological,
that only very few and selected states have. Perhaps to this end, and also
bearing other considerations in mind (such as public interest, scientific value
and non-renewablility) it is not difficult to understand the argument that the
utilisation and common exploitation of the resources in the common heritage
of mankind should not be subject to free competition.
37
On the other hand, the
scarce availability is not only due to financial hurdles, such as great exploration
costs. One can also see that common heritage of mankind often applies in areas
that have limited renewability of resources. This is arguably one of the main
features of the concept: it essentially deals with resources.

33
For example, see BBC Online, Antarctic lakes show climate effects, 24.1.2002,
<news.bbc.co.uk/1/hi/sci/tech/1779619.stm> (26.12.2005).
34
Ryuichi Ida, Human Genome as Common Heritage of Mankind with a Proposal, Bioethics
in Asia, <http://www2.unescobkk.org/eubios/asiae/biae59.htm> (26.8.2004).
35
UNCLOS 1982, Article 143.
36
Oceans, supra nota 3, p. 6.
37
In practical terms, it seems probable that this might lead to a monopolisation of many of the
worlds greatest resources, something that even the countries who do not accept the seabed
mining regime of UNLCOS 1982 have warned about.
HOLMILA / COMMON HERITAGE OF MANKIND IN THE LAW OF THE SEA 195
4. GENERAL PRINCIPLES OF COMMON HERITAGE OF MANKIND
Firstly, it is important to note that there are as many opinions as there are
authors. There is no coherent concept of common heritage of mankind which
tells the international community the dos and donts. Thus, it is always a
matter of choice, a matter of preference, and perhaps, a matter of agenda what
is included in the definition of the common heritage of mankind. However, a
useful working definition, attractive in its simplicity, is provided by Ballah. He
states (be it right or wrong), that its two main elements are (i) ownership by
all and (ii) non-appropriation by any.
38
Second important note is the fact that
there is no one concept of common heritage of mankind that applies to all
regimes collectively and in a uniform manner. There are as many doctrines as
there are regimes. With these two observation in mind, it would seem hopeless,
and perhaps useless, to try to come up with any reasonable all-inclusive
definition of the concept. However, as it was noted in the previous section (in a
non-exhaustive manner), the areas that are generally considered to be common
heritage have several characteristics in common. That said, one might also be
tempted to query whether they have certain principles in common. Thus, the
following examination will consider the principles that are generally accepted,
or at least considered, as part of the concept of the common heritage of
mankind.
The examination will seek to establish the legal elements of the common
heritage of mankind concept and complement Article 137 UNCLOS 1982. Each
of them is considered in turn and it is argued that the following consists a list
of the elements. These are: 1) absence of claims or recognition of jurisdiction and
sovereignty, 2) non-appropriation, 3) cooperation and common management,
4) exclusivity used for peaceful purposes, and 5) equitable sharing of benefits.
However, it will be argued that equitable sharing of benefits is somewhat more
regime specific than the other elements, and thus it might not be an essential of
the common heritage of mankind as a general principle.
39

4.1. No Claims or Recognition of Sovereignty and Jurisdiction
This is perhaps the most important principle governing the common heritage
of mankind ideology, and from it many other principles can derive.
40

Furthermore, according to Pardo, it was the first element of the concept in
question. This principle is clearly most pertinent to the deep seabed and

38
Lennox Ballah, The Universality of the 1982 UN Convention on the Law of the Sea: Common
Heritage or Common Burden? Al-Nauimi & Meese (eds), International Legal Issues, supra nota
4, p. 344.
39
This does not, however, mean that it is not an essential element of the deep seabed mining
regime. In fact, a strong case could be made that in relation to mining activities in the Area the
equitable sharing of the benefits is one of the strongest principles that apply.
40
Most notably, the principles of non-appropriation and common ownership/use. These both will
be considered in turn. Although this principle is generally accepted as a fundamental element of
the common heritage doctrine, it has not passed without dissent. Professor Taylor argues that,
for example, Brazilian rainforests and endangered species are part of the common heritage,
while acknowledging that these are within a national jurisdiction of a state (Taylor, An Ecological
Approach to International Law, supra nota 28, p. 276).
196 ACTA SOCIETATIS MARTENSIS
celestial bodies. It should be noted, however, that this is not necessarily a
distinct feature of the common heritage of mankind. It is beyond doubt that
there are several areas where no claims of sovereignty or jurisdiction are
admissible or recognisable, but that are not, nonetheless, considered to form a
part of common heritage of mankind. For example, such areas would be the
high seas
41
and outer space.
42
Thus, it is evident that while it is an important
feature of the common heritage of mankind, it does not necessarily distinguish
it from other areas of law. Having said that, its importance should not be
underestimated. It is, without a doubt, a fundamental element of the concept.
43

Indeed, it is so fundamental that it would be inconceivable to maintain the
position that there would be a possibility of claiming sovereignty or juris-
diction over common heritage of mankind. This would, by the very definition,
constitute a contradiction in terms, and thus be destructive to the whole
concept. However, there might currently be one exception to this rule. The
Antarctic Treaty (1959)
44
does not annul the existing claims of sovereignty and
jurisdiction, but merely (and quite literally) freezes them. It will be interesting
to see how the issue will be resolved in the future. On the other hand, it does
not recognise the jurisdiction or sovereignty of any state. The most likely
solution will be that no claims of sovereignty will be accepted by the
international community. A claim of jurisdiction by any state might lead to
counter claims, and finally, in the worst case, to the destruction of the treaty
system. If is difficult to see how any claim of sovereignty or jurisdiction could
be accepted by other contracting states.
45


41
The legal regime of the high seas is governed by Part VII of the UNCLOS 1982. The underlying
principle is the freedom of high seas. Article 87 of the Convention provides that the high seas
are open to all States Freedom of the high seas is exercised under the conditions laid down
by this Convention and by other rules of international law (emphasis added). These freedoms,
include, inter alia, freedom of navigation, freedom of overflight, freedom to lay cables and
pipelines and freedom of scientific research (Article 87(1)). For the current argument, that is to
say, the prohibition of claims of sovereignty and jurisdiction, Article 89 provides that [n]o State
may validly purport to subject any part of the high seas to its sovereignty.
42
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies, Moscow, London, Washington, 27.1.1967,
in force 10.10.1967, 610 UNTS 205 (hereinafter the Outer Space Treaty), Article II: Outer Space
is not subject to national appropriation by claims of sovereignty. However, it should be noted
that the status of outer space is somewhat less clear than that of the high seas. The Outer Space
Treaty clearly provides in Article I that [t]he exploration and use of outer space, including the
moon and other celestial bodies, shall be carried out for the benefit and in the interests of all
countries. This has led some to argue outer space should be considered as the common heritage
of mankind, for example, see Steven Wheatley, International Law (London: Blackstone Press, 1996),
p. 66. For the most controversial statement, see Martin Dixon, Textbook on International Law (4th
edn, London: Blackstone Press, 2000), p. 159. He argues that the area [here, outer space] itself is
res communis, part of the common heritage of mankind (italics in the original).
43
See, for example, GA Res. 2749 (XXV), 17.12.1970; GA Res. 2574 (XXIV), 15.12.1969; GA Res.
1721 (XVI), 20.12.1961. Furthermore, this stipulation is also present, inter alia, in UNCLOS 1982
(Article 137) and in the Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies, New York, 18.12.1979, in force 11.7.1984, 1363 UNTS 3 (hereinafter the Moon
Agreement) (Article 11(2)).
44
Antarctic Treaty, Washington, 1.12.1959, in force 23.6.1961, 402 UNTS 71.
45
Currently there are 44 signatory states to the convention, comprising 80 per cent of the earths
population. See <www.antarctica.ac.uk/About_Antarctica/Treaty> (26.8.2004).
HOLMILA / COMMON HERITAGE OF MANKIND IN THE LAW OF THE SEA 197
A quick survey of treaties reveals that the absence of national jurisdiction
and sovereignty is a fundamental principle of common heritage (with the
partial exception described above). Consequently, if a specific regime is argued
to be part of the common heritage of mankind, it must be outside the ambit of
national jurisdiction and claims of sovereignty.
4.2. Non-Appropriation
This is the second pillar of the concept. Unlike the previous element, this
consideration effectively separates the common heritage of mankind from res
communis. The latter can be exploited on non-exclusive basis. This is not the
case of common heritage of mankind. All areas considered above reaffirm the
principle of non-appropriation. However, the principle against appropriation is
not absolute: it refers only to unilateral appropriation without international
supervision. Indeed, to take the law of the sea as an example, it could be said
that one objective is to facilitate the exploration of the seabed, subject to
international control and according to commonly agreed principles.
This element is obviously fundamental and relates to the non-renewability
of the resources in question. If one accepts the community values underlying
the common heritage, then this element seems acceptable. However, if one is in
favour of laissez-faire capitalist approach, then non-appropriation seems highly
objectionable. As noted above, traditional international law has historically
favoured the latter approach.
It should also be mentioned that both non-appropriation and the absence of
national jurisdiction has been disputed.
46
It has been argued that they, while
often being present, are not fundamental to the concept. There are a number of
arguments advanced in this regard. For instance, Professor Taylor starts from
the premise that common heritage does not create any communal property
rights, but merely a right of use.
47
In this sense, one can see how effective use
can take place without appropriation, whereas property rights imply
appropriation (as well as jurisdiction). An example that she gives are the
rainforests, which she controversially declares common heritage.
48
However,
Brazilian rainforests should not be considered part of common heritage,
despite of their importance for many areas in science and research. They are
clearly within national jurisdiction and appropriated. Regardless that they
have a special status under UNESCOs World Cultural and Natural Heritage
Convention,
49
the important thing is that the latter is deals with a cession of
certain sovereign rights, whereas the common heritage doctrine does not. The
latter deals with areas that have not been subject to claims of sovereignty.
50


46
Taylor, An Ecological Approach to International Law, supra nota 28, especially Chapter 6.
47
As an example of the problems relating to arguing that common heritage of mankind involves
property rights, she maintains that there is a fundamental contradiction that the common
heritage of mankind is both the property of all mankind and free from appropriation (emphasis
in the original). See ibid., p. 275.
48
Ibid., p. 276.
49
Convention concerning the Protection of the World Cultural and Natural Heritage, Paris,
17.10.1972, in force 17.12.1975, 1037 UNTS 151.
50
With the possible exception of Antarctic.
198 ACTA SOCIETATIS MARTENSIS
It shall not be ventured within this article to examine in greater detail
whether the Brazilian rainforests can be labelled as being part of the common
heritage of mankind regime. It is already established above that both non-
appropriation and the absence of national jurisdiction form the very essence of
the common heritage of mankind. This view is also reinforced by all treaties
incorporating common heritage.
4.3. Cooperation and Common Management
This might seem as stating the obvious. It is already a well-embedded principle
of international law, not to mention one of the purposes of the United Nations
(under whose auspices the convention was hammered out).
51
There are several
areas where the duty to co-operate comes into play.
52
It is arguably behind the
whole system. Indeed, the preamble to UNCLOS 1982 states that the treaty is
prompted by the desire to settle, in a spirit of mutual understanding and
cooperation, all issues relating to the law of the sea.
53
Primarily, one can see
that the international cooperation is pivotal in the general management of areas
that are subject to common heritage. By this, one can think of environmental
considerations, conservation of resources, et cetera. On the other hand, it could
be said that the duty to co-operate is not a general principle in its own right:
rather, it could be said to be a derivative of other principles and of the
community based philosophy. Be that as it may, Article 138 of UNCLOS 1982
which deals with the general management of Area directs that all action related
to the seabed shall be conducted in the way that promotes international
cooperation and mutual understanding and is in accordance with the
principles embedded in the Charter of the United Nations.
Common management is particularly developed in the deep seabed regime.
UNCLOS 1982 establishes an international organisation, called the Internatio-
nal Seabed Authority (hereinafter the Authority),
54
to organize and control
activities in the Area, particularly with a view to administering the resources of
the Area.
55
All parties to the UNCLOS 1982 are ipso facto members of the
Authority.
56
Two issues are particularly striking in relation to the Authority.
Firstly, it has a very developed institutional structure. It is an organisation
consisting of three principal organs
57
and a commercial entity called the

51
Article 1(3) of the Charter of the United Nations.
52
Beyond the normal rule requiring states to perform their treaty obligations in good faith. See
Article 26 of the Vienna Convention on the Law of Treaties, 22.5.1969, in force 27.1.1980, 1155
UNTS 331.
53
Similar provisions are found in other treaties as well, most typically in the preamble. The Moon
Agreement, for example, states that the treaty is [d]etermined to promote on the basis of
equality the further development of co-operation among States.
54
UNCLOS 1982, Article 156(1).
55
Ibid., Article 157(1).
56
Ibid., Article 156(2).
57
Ibid., Article 158. These are a plenary body, called Assembly (see Articles 159160), an executive
body, called Council (see Articles 161165), and an administrative body, called Secretariat (see
Articles 166169). In addition to this basic structure, each institution has its own specific
structures. Furthermore, for deep seabed mining activities, there is an organ called Enterprise
HOLMILA / COMMON HERITAGE OF MANKIND IN THE LAW OF THE SEA 199
Enterprise that is entrusted to take part in the mining operations on behalf of
the mankind.
58
The structure of the Authority is very tediously defined in the
relevant parts of UNCLOS 1982.
59
Second feature that deserves a mentioning is
the fact that the powers of the Authority have been clearly set out. For instance,
it is an organisation with a legal personality.
60
The powers of the authority and
of the individual organs have been clearly laid out in relevant provisions.
61

These two points illustrate that the common management system that
UNCLOS 1982 establishes is relatively developed and has real potential to be
influential. From the perspective that it is the Authority who decides who can
ultimately conduct deep seabed mining,
62
it is easy to see how the common
management system in relation to the law of the sea is very powerful.
In other common heritage areas the common management systems are not
as developed as in the law of the sea.
63
Thus, the issue should be approached
with certain caution. Nevertheless, it is important to note that if the
exploitation of resources is to be carried for the benefit of mankind, it is clear
that common management system (of some kind) must be put in place. To this
end, other regimes provide such systems to be established when exploitation
comes feasible.
64
However, law of the sea provides a prototype for other
organisations to be established in order to facilitate common management or
sharing of resources.
65
It is likely that when the exploitation of other areas of
common heritage becomes viable, also the common management systems will
be developed. This brief examination warrants the conclusion that common
management system is an essential element for the proper functioning of any

whose task is to be the operating arm of the Authority and to take part in the actual mining
operations.
58
Ibid., Article 170. See also ibid., Article 153(1).
59
See ibid., Articles 156170.
60
Ibid., Article 176.
61
See supra nota 57.
62
See, in particular, UNCLOS 1982, Article 137(2).
63
See Barbara Ellen Heim, Exploring the Last Frontiers for Mineral Resources: A Comparison of
International Law Regarding the Deep Seabed, Outer Space, and Antarctica, 23 Vanderbilt
Journal of Transnational Law (1990) 819849.
64
For example, Article 11 of the Moon Agreement calls for the establishment of an international
regime. The main purposes include, inter alia, rational management and development of lunar
resources (in particular, see Article 11(6)).
65
However, the Authority being a prototype it is clear that it has certain aspects that were not
seen acceptable by various states. Especially the United States made was unhappy with the
decision-making procedures of the Authority. In accordance with Article 160 of UNCLOS 1892,
the Assembly was given a power to establish general policies relation to the Area. One problem
for the United States was that the Assembly operates on one-state one-vote basis. This
problem was addressed in the 1994 Agreement, which provided that policy matters are dealt
with in collaboration with the Council (see 1994 Agreement, Annex, Section 3, para. 1). Another
problem for the United States was that under the terms of UNCLOS 1982, no state had a
guaranteed seat in the executive body, the Council (for the complicated way of electing the
representatives of the Council, see Article 161 of UNCLOS 1982). Also this issue was addressed
by the 1994 Agreement which provided that the state that has the largest gross domestic
product at the time of entry into force of UNCLOS 1982 will have a permanent seat in the
Council (see 1994 Agreement, Annex, Section 3, para. 15(a)). This country is the United States.
These limited examples go to show the practical difficulties that the Authority has had to face,
and how its structure has been subject to heavy pressure.
200 ACTA SOCIETATIS MARTENSIS
common heritage of mankind regime. However, it is perhaps wishful thinking
to equate this with the conclusion that without common management system a
regime would be disqualified from being common heritage of mankind.
Indeed, the law of the sea is the only regime to put it seriously into effect.
4.4. Only for Peaceful Purposes
This is perhaps not an inherently obvious principle. It is not beyond
imagination that for example, nuclear testing could take place in outer space or
in the deep seabed. However, a quick tour dhorizon reveals that all regimes
where the common heritage applies have been limited for peaceful use. Such is
the case for deep seabed,
66
the moon and celestial bodies,
67
the human
genome
68
and the Antarctic.
69

Exclusivity for peaceful use seems empirically part and parcel of the
common heritage of mankind. Another question, then, is that whether this is a
precondition for the concept. In other words, could a regime be considered to
be common heritage while at the same time being used as a military training,
research or testing ground? If one adopts a broad view of common heritage of
mankind as Professor Taylor does, then it is hard to argue that exclusive
peaceful use is an essential element. An example could be the rainforests, and
other areas that are within national jurisdiction. It is beyond doubt that a state is
entitled to use its territory for a great variety of actions, including military and
other non-peaceful ones, subject (of course) to other rules of international law.
One has to look back only some two decades, when President Reagan
announced his Star Wars plan to destroy Soviet ballistic missiles from
space.
70
Although it is relatively clear that outer space is not common heritage,
but rather res communis, one could envisage similar plans for other areas.
Would that disqualify a regime from being common heritage? In the lack of
authority, one can only maintain that all existing regimes are in fact reserved
exclusively for peaceful purposes, and that it is highly unlikely that any
potential future areas of common heritage would be treated differently.
Accordingly, it seems likely that a reservation for peaceful purposes is a

66
UNCLOS 1982, Article 141: The Area shall be open to use exclusively for peaceful purposes by
all states.
67
The Moon Agreement, Article 3(1): The moon shall be used by all States Parties exclusively for
peaceful purposes. One has to be careful to distinguish outer space from the moon and
celestial bodies. It has been argued (Alexandre Kiss, The Common Heritage of Mankind:
Utopia or Reality?, 40 International Journal (1985) 423441, p. 430) that there is no obligation to
use outer space for only peaceful purposes. Article IV of the Outer Space Agreement only
prohibits the placing of weapons of mass destruction in the outer space, whereas a complete
demilitarisation is provided for the moon and celestial bodies.
68
Universal Declaration on the Human Genome and Human Rights, 11.11.1997,
<www.ohchr.org/english/law/genome.htm> (30.4.2006), Article 15: [The parties] should seek
to ensure that research results are not used for non-peaceful purposes.
69
Antarctic Treaty, preamble and Article I: Antarctica shall be used for peaceful purposes only.
70
It may or may not sound like science fiction, but according to the National Center for Policy
Analysis, the US spent nearly 50 billion USD on the project between 1983 and 1993. See
<www.ncpa.org/bothside/krt/krt061799b.html> (30.4.2006).
HOLMILA / COMMON HERITAGE OF MANKIND IN THE LAW OF THE SEA 201
natural element of common heritage, a consideration that is backed by
extensive treaty practice, and thus de lege lata.
4.5. Equitable Sharing of Benefits
A word of caution is at place. It is not perhaps entirely clear whether equitable
sharing of benefits is an element of common heritage of mankind. Indisputably
it is present in certain regimes, such as in the law of the sea. It manifests itself
in two different but interrelated ways:
The activities in the Area shall be carried out for the benefit of mankind as a
whole, irrespective of the geographical location of States, whether coastal or
land-locked, and taking into particular consideration the interests and needs of the
developing States and peoples who have not attained full independence or
other self-governing status recognized by the United Nations.
71

Accordingly, the conduct of states (or other entities) in the Area is subject to
considerations of common interest. Further, Article 140(2) of UNCLOS 1982
stipulates that [t]he Authority shall provide for equitable sharing of financial and
other economic benefits derived from the activities in the Area (emphasis
added). Thus, at least in relation to deep seabed mining there is not much
debate whether equitable sharing of benefits is part of the common heritage of
mankind. The essence of the regime is that an international organisation, the
Authority, is in charge of deciding how economic benefits derived from
exploitation are to be divided.
Other regimes, however, tell a rather different story. The Agreement
Governing the Activities of States on the Moon and Other Celestial Bodies
(1979)
72
also mentions equitable sharing. However, the provision is radically
different from that of the law of the sea convention. The Moon Agreement
provides for the establishment of an international regime governing the
exploitation of the resources.
73
One of the purposes of the regime is to ensure
[a]n equitable sharing by all State Parties in the benefits derived from those
resources, whereby the interests and needs of the developing countries, as
well as the efforts of those countries which have contributed either directly
or indirectly to the exploitation of the moon, shall be given special
consideration (emphasis added).
74

This provision in question warrants two interpretations. It can either be
interpreted to mean that all benefit sharing is to be done inter partes or that the
sharing of benefits extends to third states as well, especially developing states.
Examining the issue from the viewpoint of a third state, one is perhaps geared
towards the conclusion that the first interpretation would prevail. This is
arguably so because the article in question is addressed expressly to all state
parties, whereas UNCLOS 1982 adopts a broader view. It is difficult to see how
any third state would be able to claim under this provision. The considerations

71
UNCLOS 1982, Article 140(1) (emphasis added).
72
Supra nota 43.
73
Article 11(7) of the Moon Agreement.
74
Article 11(7)(d) of the Moon Agreement.
202 ACTA SOCIETATIS MARTENSIS
of taking developing countries into account only apply within the state parties.
Suffice it to say, the Moon Agreement currently has 10 ratifications.
75

Moon (and other celestial bodies) and the seabed are perhaps the only
regimes of common heritage of mankind where mining activities can take
place.
76
Thus, it is not necessary to examine other proclaimed regimes. The
upshot of the above is that it seems far from clear whether equitable sharing of
benefits can be called an essential characteristic of the common heritage of
mankind concept. At least in the case of lunar mining the benefits are to be
shared between a very small number of countries. In relation to the law of the
sea, things look significantly different. The latter is virtually universal, with 145
ratifications.
77
To conclude, there is not enough evidence to suggest that the
concept of common heritage of mankind in its general application entails an
obligation to share benefits beyond states parties.
78
However, this is not to say
that this obligation cannot attach to specific regimes. As seen above, the law of
the sea clearly has this aspect as one of its distinctive elements.
5. COMMON HERITAGE OF MANKIND IN CUSTOMARY
INTERNATIONAL LAW
There are two distinct ways in which UNCLOS III or UNCLOS 1982 may have
contributed to the development of customary international law: firstly, by
codifying the existing law, and secondly, by providing impetus for emergence
of new rules.
It has been claimed that the situation with respect to the exploitation of the
deep seabed under customary international law in the beginning of the
UNCLOS III in the early 1970s was enshrined in the 1958 High Seas Conven-
tion.
79
Although the 1958 Convention did not address the issue of the
exploitation of deep seabed explicitly, the works of International Law
Commission (ILC) suggest that exploitation was to be included in the non-
exhaustive list in Article 2 of the Convention on High Seas. The ILC was of the
opinion that the Commission has merely specified four of the main freedoms.
It is aware that there are other freedoms, such as freedom to explore or exploit
the subsoil of the high seas.
80

Thus, it is admitted that in the 1950s the exploitation was considered to be
one of the freedoms of high seas. However, as already seen above, from 1970s
onwards the concept of common heritage has emerged. The two main
documents dealing with the concept are General Assembly Resolutions 2574

75
See <www.oosa.unvienna.org/SpaceLaw/moon.html> (26.8.2004).
76
One might include also the Antarctica in the list, but as was already seen above, all mining
activities are banned there.
77
See supra nota 5.
78
For a contrary view, see Kemal Baslar, The Concept of Common Heritage of Mankind in International
Law (The Hague: Martinus Nijhoff, 1997).
79
For example, see Kathryn Surace-Smith, United States Activity Outside of the Law of the Sea
Convention: Deep Seabed Mining and Transit Passage, 84 Columbia Law Review (1984) 1032
1058, p. 1036.
80
Quoted in ibid., p. 1037.
HOLMILA / COMMON HERITAGE OF MANKIND IN THE LAW OF THE SEA 203
(XXIV) and 2749 (XXV).
81
It has to be mentioned that the former resolution
prohibited all unilateral exploitation and exploration pending the
establishment of an international regime (which was achieved by UNCLOS
1982). For present purposes, it is also important to recall that the US voted
against that resolution. The second one, Resolution 2749, stated that the Area is
part of common heritage of mankind and that states are not to exercise rights
over the resources of the Area in a way that is incompatible with the regime to
be established.
82
It is also noted that the US and most other Western states
voted in favour of this resolution. In addition, in 1970 president Nixon declared
that an international treaty incorporating the common heritage of mankind
concept should be made.
83
These factors in mind, together with practically
universal acceptance of UNCLOS 1982 and combined with several other
treaties incorporating the concept of common heritage, it seems highly
probable that it has been crystallised in customary international law.
This does not indicate in itself that unilateral exploitation and exploration of
the deep seabed must be considered unlawful per se. It is argued here that the
concept of common heritage of mankind, as defined in Article 137, outlaws
unilateral exploitation.
84
However, this does not automatically mean that the
concept of common heritage is identical in customary international law.
Indeed, as was seen above, the UNCLOS 1982 is a package deal. UNCLOS 1982
is a treaty both codifying customary international law, and making progressive
changes to law possibly creating a new rule of customary law. The question
that arises then is how to know which provisions are part of existing custom
and which are not? As already seen above, states voting patterns can provide
some light whether a state believes that a norm is part of customary law.
However, in the context of package deal treaties, this option is exhausted. Its
shortcomings have been illustrated by Professor Baxter with his doctrine of
integration and the interdependence of treaty provisions.
85
The essence of his
theory is that the voting pattern of a state might not reflect that states attitude
towards international law in that particular question, because voting in favour
of such provision may be dependant on another states voting in favour of some
other provisions. Thus, opinio juris cannot easily be retracted from package
deal treaties and examining voting patterns offer only limited assistance.
Thus, one has to turn to the works of UNCLOS III. When voting for the
Resolution 2749, the legal advisor of the State Department of the US stated the
opinion of the US, which is that common heritage does not mean common
ownership. This means that the exploitation of the deep seabed is not contrary

81
Supra nota 13 and 17 (respectively). The substance of these resolutions has been considered
above and hence will not be reproduced here.
82
Article 3.
83
See Harry, The Deep Seabed, supra nota 23, p.210.
84
The relevant parts of the article read: these resources are not subject to alienation. The minerals
recovered from the Area, however, may only be alienated in accordance with this Part and the
rules, regulations and the procedures of the Authority.
85
Discussed in Caminos & Molitor, Progressive Development of International Law and the
Package Deal, supra nota 11, p. 883.
204 ACTA SOCIETATIS MARTENSIS
to common heritage of mankind.
86
The position of the US has long been that
the deep seabed mining is one of the freedoms of high seas.
87
The scope of
customary international law in relation to common heritage of mankind
concept is to be found in Resolution 2749. The works of Subcommittee I of the
Seabed Committee in UNCLOS III, in its second session,
88
reveal that there was
an overwhelming consensus among states to refer to Resolution 2749 as
representing the scope of concept of common heritage.
89

It has been argued by some scholars that unilateral exploitation and
exploration is allowed in customary international law, but subject to
requirements of reasonableness, non-sovereignty, and sharing of benefits.
90

While somewhat plausible, it fails to account the overwhelming majority of
states who have decided otherwise. It has widely been accepted that the
UNCLOS III contributed to the development of customary international law.
91

The issue at hand is somewhat difficult to address in terms of state practice
and opinio juris, and potentially highlights the problems in the theoretical
understanding of customary international law. There is little practice of actual
mining. As was noted above, statements made by states constitute practice for
the purposes of finding a rule of customary international law. The best
manifestation of state practice, then, is the adoption of UNCLOS 1982. It is
acknowledged in the preamble of the UNCLOS 1982 that the convention is
both a codification of existing law and part of progressive development. As far
as deep seabed mining is concerned, the more probable proposition is that it is
part of the new development. As for opinio juris, it can never be said with
relative certainty whether it exists or not. As was noted in the Nicaragua case,
92

opinio juris can sometimes, albeit with due care, be inferred from the voting in
the General Assembly.
93
It was also seen above that General Assembly
resolution 2749 (XXV) declaring the deep seabed as common heritage of
mankind was adopted without a dissenting vote. In addition, states that were
originally outside UNCLOS 1982 made other arrangements between them-
selves, as well as enacting national legislation, that was largely similar to (or at
least, not inconsistent with) UNCLOS 1982. There are no fixed criteria to
determine whether opinio juris exists and thus it must often be inferred from
state practice. This, of course, leads to a situation where on one hand, it seems

86
Harry, The Deep Seabed, supra nota 23, p. 215.
87
Surace-Smith, United States Activity Outside of the Law of the Sea Convention, supra nota 79.
88
20.6.29.8.1975, Caracas, Venezuela.
89
United Nation Division for Ocean Affairs and the Law of the Sea, The Law of the Sea: Concept of
Common Heritage of Mankind: Legislative History of Article 133 to 150 and 311(6) of the United
Nations Convention on the Law of the Sea (New York: United Nations, 1996), pp. 291304.
90
Surace-Smith, United States Activity Outside of the Law of the Sea Convention, supra nota 79,
p. 1045.
91
For example, judge Jennings wrote that customary law has been developing during that period
[the third conference], as has already been mentioned, and there can be no doubt that the
existence of the conference contributed to the process (quoted in Caminos & Molitor,
Progressive Development of International Law supra nota 11, p. 885.
92
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits,
ICJ Reports (1986) 14.
93
Ibid., para. 188.
HOLMILA / COMMON HERITAGE OF MANKIND IN THE LAW OF THE SEA 205
that practice is only good if accompanied with corresponding opinio juris.
However, there are no criteria to determine the latter and thus it must be
inferred from the former. Of course, there is no end to this circle, and all
attempts to try to show the existence of a rule of customary international law
are based on this circularity.
94

The upshot, nevertheless, is that a great majority of states have found
common heritage to be applicable to deep seabed. The argument that it is also
part of customary international law is then well supported and thus also
binding on third parties to UNCLOS 1982. The scope of this rule is found on
General Assembly resolution 2749 (XXV) and Article 137 of UNCLOS 1982.
Taken together, these stipulate that (i) the deep seabed is not subject to claims
of sovereignty or national jurisdiction; that (ii) the resources of the deep seabed
are not subject to unilateral alienation; that (iii) no states can exercise rights
over minerals except with the approval of the International Seabed Authority;
and (possibly) that (iv) the deep seabed is reserved exclusively for peaceful
purposes. For present purposes, the most important consideration is that deep
seabed mining is now to be carried out through International Seabed Authority
and all unilateral exploitation is prohibited.
95

CONCLUSIONS
The main object of this article was to critically examine the common heritage of
mankind in the law of the sea. The preceding examination has revealed several
issues that need further clarifications.
The common heritage is in its most potent form in its law of the sea context
and thus it is an important area to consider for future development. While
there are doubts about the potential of the concept of common heritage of
mankind, it is believed that the law of the sea is currently the only regime
where it has any practical effect. An additional feature supporting the view
that the common heritage of mankind is at its strongest in the law of the sea is
that fact that an international organisation has been established to administer
the seabed. As noted above, it has clearly defined power structure as well as
being endowed with a legal personality. Accordingly, it can be argued that
there is some potential for a viable and enforceable concept of common
heritage of mankind, at least in law of the sea context.

94
For extensive analyses of the problem, see Martti Koskenniemi, From Apology to Utopia: the
Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustannus, 1989).
95
However, there is real possibility that the United States is a persistent objector to this particular
interpretation of the concept. It was seen above that, when voting for Resolution 2479, the
United States made a declaration to the effect that, in their opinion, the concept of common
heritage of mankind, as stipulated in the resolution in question, does not prohibit unilateral
seabed mining. They have held this view since the emergence of the concept in question, and
accordingly, it is at least arguable that they are not bound by this prohibition of unilateral
exploitation of deep seabed under customary international law.