Obligations erga omnes and the common heritage of mankind under the Law of the Sea Convention

Abstract

In the latter half of the twentieth century, the term ‘common heritage of mankind’ was coined as a promise to the international community, stipulating that all states would benefit equally from the areas that fell within its scope. The regime grew to encompass the deep seabed among other areas that lay beyond the sovereign jurisdiction of any one state. Until recent years, the deep seabed has been left relatively idle due to the complications in accessing and exploiting it. Today, however, technological advances have made deep-sea commercial mining operations possible, while its potential consequences for the marine ecosystems remain understudied. These potential ecological risks have prompted a search for new legal mechanisms for states to seek redress should the deep seabed be unlawfully polluted, appropriated or exploited. Although still a relatively ambiguous concept in international law, obligations erga omnes have emerged in cases where the norm breached would be redundant if no state could claim a legal interest in defending it. This chapter analyses the legal grounds underpinning the presumption that the designation of the deep seabed as the common heritage of mankind gives rise to erga omnes obligations, as technological advancement is making it accessible for exploitation.