Principle Of Common Heritage Research Articles

Implementation of the Principle of Common Heritage of Mankind According to the UN Convention on the Law of the Sea of 1982

Common Heritage of Mankind is a principle in the International Law of the Sea system where the principle provides freedom of Natural Resources contained in the International Seabed or Seabed Area. The regulation of international law authorizes an international organization called the International Seabed Authority to carry out its role as supervision of the implementation of the principles of Common Heritage of Mankind in the International Seabed area. Article 136 of the International Convention on the Law of the Sea, Part XI of the Area states that “ the area and its resources are the common heritage of mankind”. In applying the principles of the Common Heritage of Mankind contained in Chapter XI UNCLOS 1982 was implemented under the Implementation Agreement 1994 which then established an international organization authorized to fully regulate and manage the resources that exist in the seabed and Deep Ocean where the common heritage of mankind on behalf of it acts.

LEGALITAS WILAYAH TERITORIAL AUSTRALIA DI BENUA ANTARTIKA DALAM PENANGKAPAN IKAN PAUS DI AUSTRALIAN ANTARCTIC TERRITORY BERDASARKAN UNCLOS 1982

Japan through the JARPA program (Japanese Whale Research Program under Special Permit in the Antarctic) from 1987-2005 applied for a special permit to conduct whaling to the International Whaling Commission (IWC). In 2005 Japan resumed the JARPA program through the Second Phase of the Japanese Whaling Research Program under Special Permit in the Antarctic (JARPA II) policy. Related to this, the problem formulation of this article is: Is the territorial area owned by Australia on the Antarctic continent in accordance with the 1959 Antarctic Treaty? Then, how is the implementation of the principle of common heritage of mankind by Australia in the case of JARPA II? The type of research used in writing this article is normative juridical and the data used is secondary data, and the way of drawing conclusions in this research is done deductively. The Results of this research is that the claim owned by Australia in the AAT is valid, because based on its history, Australia already owned the area long before the ratification of the 1959 Antarctic Treaty. Furthermore, the conclusion is the country has actively sought to protect and promote the sustainability of natural resources in the AAT.

The Participatory Scope of the Common Heritage Principle

I have been asked by the symposium editors to write about the participatory scope of the concept of common heritage of humankind for Indigenous peoples, local communities, and future generations. Leaning into the possibilities of the Unbound format, I approach the topic in an athwart way. With a focus on seabed mining, I begin with describing a recent occasion on which Indigenous leaders joined a meeting of the International Seabed Authority (ISA) to discuss the mining regime that is in progress. I tease out the meanings that may be drawn from this instance of participation, including the claims that it made to the ocean as common heritage. Next, I turn to the limits of such participation, given the set parameters of the regime. My overall argument, discussed in the final section, is that the real issue at stake is not the possible conceptual scope of the common heritage principle. Rather, its actualization has been such that the burden is effectively shifted to marginalized voices to seek goals that do not disturb the overarching seabed mining regime.

Exploiting the deep seabed for the benefit of humankind: A universal ideology for sustainable resource development or a false necessity?

AbstractA pivotal point in time has been reached in the ongoing negotiations under the auspices of the International Seabed Authority (ISA) towards the adoption of regulations for the commercial exploitation of mineral resources in the deep seabed beyond national jurisdiction. The ISA has a mandate to ensure that activities in the Area, legally designated as ‘common heritage of humankind’, are carried out for the benefit of humankind as a whole. Yet, there is a growing sense of unease with the potential imminence of the commercial exploitation phase, and concern that the implementation of all components of the common heritage principle, including its environmental and distributive ambitions, will be compromised in the interest of a handful of industry stakeholders. This article dives under the surface of these tensions by asking how the public interest in a global commons can become constructed in a way that conflates diverse and opposing interests in favour of value extraction by the private sector, revealing the ambivalent role of international law in the process. It uses the concept of ‘false necessity’ to question the apparent urgency and inevitability of commercial exploitation, more specifically to the extent it obscures and pre-empts more inclusive conceptions of ‘benefit’ for humankind. By shifting the focus from the much-debated risks of deep seabed mining to the notion of benefit, the article illuminates the inherent contradictions and distributional asymmetries obscured by the conflated yet purportedly universal conception of public interest in exploitation.

Space War and the Regressive Development of the Principle of Common Heritage of Humankind: Legal vs. Technological Weapons

Deep under the waters, HMS Challenger discovered the polymetallic nodules during its scientific expeditions in the Kara Sea part of the Arctic Ocean in 1868. Whilst in the vastness of the skies above, the Clementine and Lunar Prospector indicated the existence of water ice at the lunar poles during the period of 1994 to 1999. In 2003, the SMART-1 lunar orbiter of the European Space Agency discovered the key chemical elements of the Moon. Going even further back, in 1988, NASA published a work on Helium-3 blown away by the solar wind onto the Moon, and the possibilities of harvesting it as an alternative energy source for the continuation and advancement of human race. The deep seabed and the outer space, along with their resources, are both internationally governed under the same underlying principle: the Common Heritage of Humankind. Yet, while the former has begun to take shape, the latter still has very little progress. Various factors ranging from laws to politics to economics and undeniably the advances in science and technology have hindered the development of the principle of Common Heritage of Humankind in the outer space regime. Hence, this paper is to argue on how best to reform the principle, and consequently, determining which of its elements that might be spared in order for it to eventually work in balancing the contrasting interests from diverse stake-holders: the developed and the developing countries; the sovereign and the corporations – with their respective weapons of laws or of technology.

UN BBNJ 해양유전자원 주요 법적 쟁점 연구

The 5-1 UN BBNJ Intergovernmental Conference (‘IGC’) was adjourned against international community’s huge expectation for reaching consensus on the BBNJ agreement in 2022. However, the 5-1 IGC has been considered the IGC which substantially narrowed down the divergence between Parties. Against this backdrop, there are high hopes for adopting UN BBNJ in the coming IGC 5-2 .
 However, there are still the unsolved issues which require significant amount of discussions. Out of many issues, there are two major legal issues which the IGC 5-2 should resolve in the area of Marine Genetic Resources(‘MGR’). Since the beginning of the BBNJ agreement negotiation, the legal status of MGR has divided the delegations into two groups. One is those who are proponents for common heritage of mankind. This group believes the principle of common heritage of mankind applies to MGR. The other is those who are against this. There have been no consensus at all so far. Without any creative ideas to resolve the divergence between two, there would be a very small window to see the adoption of the UN BBNJ agreement. Even if the IGC 5-2 succeeds in the legal status of MGR, we still have the digital sequence information issue. At issue is whether digital sequence information falls under the definition of MGR. Considering the same discussions in Convention on Biological Diversity Conference of Parties(‘CBD COP’), there is very slim chance to arrive in consensus on this issue, too.
 The best scenario would be the case where all the legal issues are cleared and Parties reach consensus. However, this scenario seems very unlikely to be realized at the IGC 5-2. Considering the difficulties ahead, the IGC 5 should carefully look into the approach taken at the CBD COP 15 for successful adoption of Kunming-Montreal Global Biodiversity. The lessons learned the IGC 5-2 should take are the effective conference management and targeted consensus strategy. The CBD COP 15 managed conference effectively by forming Plenary-Working Group-Contact Group-Friends of the Chair structures. With this structure, the CBD COP could filer out the agenda and focus its time and resources on hard issues. In addition, the CBD COP15 draw consensus only where it is likely to reach. This targeted approach produced the result that the CBD COP 15 left many issues unsolved till the COP 16. However, the CBD COP 15 achieved what the CBD COP 15 had to on time.
 Applying the lessons learned at CBD COP 15, the IGC 5-2 should enhance the small group which was introduce for the first time at the IGC 5-1 for consensus between Parties who have opposing views on one issue. There has been not enough time for narrowing divergent views between Parties during the whole IGCs. What the IGC 5-2 might try next is to explicitly agree not to agree. By creating provisions which state Parties do not agree in the issues such as the legal status of MGR and the digital sequence information, Parties could clean the brackets and produce a clean text. When debates seem endless, we should move toward a new direction instead of circling around.

ARTIFICIAL INTELLIGENCE AS A COMMON HERITAGE OF MANKIND

Artificial intelligence technologies today employ techniques known as machine learning and deep learning, which apply datasets to a suitable mathematical or statistical technique known as an algorithm. This in turn produces a model that can be employed to predict an outcome, given a new set of data that was previously unseen by the model. The principle of common heritage of mankind, which has originated in the 19th century, promotes the concept that humanity as a whole has rights and responsibilities over territories or outer space. This study aims to advance the concept of treating the components of artificial intelligence as an intellectual common in the form of a common heritage of mankind, in order to promote the discovery and the development of more novel artificial intelligence applications for the benefit of people around the world. This work employs a mix of legal doctrinal research related to intellectual property law and conceptual theoretical discussion. The potential application of open access and open data licensing is discussed. The history of the common heritage of mankind is covered, and the potential benefit of recognizing basic artificial intelligence components as a common heritage of mankind is explored. Finally, a novel method for implementing this idea is proposed. This work is significant in advancing a method to liberate certain artificial intelligence technologies from intellectual property rights protection, in order to promote greater experimentation and the development of artificial intelligence applications for the greater good of humanity.

The Principle of Common Heritage of Mankind in the Law of Outer Space

Nomadic primitive men were in constant quest for food and water. With sparse population, they rarely encountered other humans. Chance meetings were greeted with confrontations over food and water, the basic essentials for survival. With the passage of time, life became easier when humans transited from hunting to farming. No longer in perpetual pursuit of food and water, civilization and property ownership commenced. Prior to the advent of international law, conquering land seemed simple: the fittest survived and won the land. The victor’s flag flapped majestically in the air above the conquered territory as a symbol of acquisition. No rules existed to ensure fairness. Superior armies seized land or those skilled in the exploration declared new unoccupied areas for their kingdoms. For a millennium, homo sapiens followed this savagery and barbaric “first in time, first in right” rule of property ownership. Haven conquered the earth, the inordinate expansionist tendencies of man have shifted his attention to the outer space, an area devoid of the obnoxious “first in time, first in right rule”. Rather, the order of the day in this sphere is the doctrine of “common heritage and province of mankind”. What is it all about? What is the genesis of the doctrine? Is it absolute and sacrosanct? Or is it a case of all animals are equal, but some are more equal than others”. All these will be unraveled as we explore the topic in this exercise.

On the Legal Dilemma of Ownership and Exploitation Right of Outer Space and Its Resources and China's Solutions

The principle of common heritage of mankind embodies the requirement of developing countries for the distribution of ownership of world resources (including outer space) that cannot be seized by some countries. The allocation of ownership under the principle of common heritage of mankind contributes to the equitable distribution and use of the world's resources across countries and generations. The principle of common heritage of mankind is essentially the ownership of resources. Facing the increasingly frequent activities in outer space as such, however, there is no chance for international laws to play their role in regulating those activities. The contracting system adopted in the early stage of China's reform and opening up could be used for tackling the dilemma faced by the utilization of outer space resources and the distribution of benefits.

Sharing the Benefits of Asteroid Mining

AbstractNear‐Earth asteroids (NEAs) hold metal reserves that could sustain global consumption for millennia. Unresolved questions of technological and economic feasibility notwithstanding, NEA mining could ensure the accessibility and affordability of key strategic resources, contribute to sustainability transitions and displace environmentally and socially harmful terrestrial mining. Based on implicit and explicit normative commitments towards the common heritage principle in international space law, we develop the outlines of a regime for the fair and equitable sharing of the benefits resulting from NEA mining. For doing so, we analyze the linkages between institutional design and regime effectiveness for benefit‐sharing regimes in the areas of deep‐sea mining and plant genetic resources for food and agriculture. Attempting to control for differences in problem structure, we transpose this analysis to the case of NEA mining, where an effective benefit‐sharing regime would revolve around the following elements: standardized exploration and exploitation contracts, back‐end benefit‐sharing as a percentage of commercial profits, research exemptions, compliance mechanisms for preventing and reducing space pollution, as well as a reserve banking system for mining claims. For the contemporary political debate on space resources, we thus aim to provide a feasible alternative to the exclusive appropriation of space resources through private property rights.

Conservation and sustainable use of the marine environment under UNCLOS For the benefit of mankind “as a whole”

ABSTRACT The International Seabed Authority (ISA), acting on behalf of mankind as a whole, decides on measures to achieve the common heritage of mankind principle in relation to activities in the area. Various approaches towards this end are noted in United Nations Convention on the Law of the Sea (UNCLOS), such as: a state acting in good faith, especially when its action is likely to affect prejudicially the interests of mankind as a whole; laying down detailed rules on economic and financial issues; transfer of technology to developing states; and reserved sites for developing states. Ultimately, the ISA aims to use an equitable approach to protect the marine environment and human life with respect to activities in the area. These approaches, found in UNCLOS, confirm that it remains resolute in its advocacy for the principle of common heritage of mankind.

Finders Keepers

Current space law is unclear as to whether private entities may claim possession of resources extracted from their endeavors in outer space. The lack of certainty prevents private entities from entirely investing in infrastructure and capabilities to access new deposits of resources due to the depletion of minerals and resources on Earth. The establishment of a new space regime devoid of non-appropriation principles found in international law is necessary to motivate private entities to invest the capital in extracting and transporting space resources back to Earth. This Comment seeks to understand how the current framework of space law impacts the property rights of private entities and their claim to resources in space. The 1967 Outer Space Treaty prohibited the claiming of property by sovereign nations. However, the concept of private entities now having the capability to extract resources from outer space has reignited the issue of property rights in outer space. With resources becoming scarcer or priced out of the market, the solution of mining these resources from celestial bodies has caused a new space race. Past multilateral agreements have dealt with similar discoveries such as the polymetallic nodules on the ocean floor; however, these agreements led to disputes as to ownership and the rights to extract said resources. With little to no support from the industrialized nations, the structure of any new regime must ensure access for the benefit of humankind. The benefit of allowing these private entities the right to claim mined resources must be weighed against potential drawbacks in order to create a framework that balances the interest of the free market with that of the common heritage principle. In determining that a suitable framework fails to guide a new space regime, this Comment proposes that a new governing body comprising a rotation of space-faring and nonspacefaring nations act as a regulatory body for the interest of all of humankind.

The Challenges Faced by the International Seabed Authority in the Management of the Area

The International Seabed Authority (ISA) equally referred to as the Authority was created with a mission to administer the Area and the resources found therein for the benefit of mankind as a whole. The Area in this case refers to the seabed and the ocean floor and subsoil beyond the limits of national jurisdiction. The principle governing this part of the Ocean is the Common Heritage principle. International Seabed Authority like every other organization has adopted mechanisms and strategies to realize its mission but it faces substantial challenges in this regard. This leads us to the focus of this work which seeks to examine the challenges the Authority faces in the management of the Area. The paper does so by making use of the doctrinal method of data collection, which involves reviewing of legal text and observation. Equally, some articles were revisited and reports. The data collected is analyzed by use of the thematic content approach. The result obtained shows that the international Seabed Authority despite its efforts in realizing its mission through the mechanisms and strategies adopted still faces challenges in this regard.

BBNJ 협약에서의 인류공동유산 원칙 적용에 관한 소고

This paper examines the legal nature of the Principle of Common Heritage of Mankind under the United Nations Convention on the Law of the Sea and highlights the problem which may occur during the application of the Principle of Common Heritage of Mankind to the marine genetic resources in the area beyond national jurisdiction, based on logical interpretation. First of all, Chapter 2 examines the meaning of the Principle of Common Heritage of Mankind and the detailed elements that make up this Principle in the UNCLOS, and points out the grounds for asserting the peremptory nature of the Principles of Common Heritage of Mankind and its limitations. Chapter 3 confirms the background of the BBNJ discussion, which is underway to fill the gap of biodiversity discipline in the area beyond national jurisdiction, and shows that the application of the Principle of Common Heritage of Mankind is being proposed there. Chapter 4 compares and analyzes the articles which is related with the Principle of Common Heritage of Mankind between the revised draft of the BBNJ and UNCLOS, emphasizes that the principle in the BBNJ are logically inconsistent with the that appeared in UNCLOS. In conclusion, suggests that further research about peremptory nature and analogy of the Principles of Common Heritage of Mankind is needed to clarify the discipline principle to be applied to the BBNJ, and that the discipline principle of the BBNJ should be presented again accordingly.

PRINCIPLES OF THE LAW OF THE SEA CONCERNING THE PASSAGE REGIMES

Key words: the principle of freedom of the seas, the principle of sovereignty, the principle of common heritage of mankind, various approaches

Sharing the Riches of the Sea: The Redistributive and Fiscal Dimension of Deep Seabed Exploitation

Abstract This article seeks to clarify how the principle of common heritage is being implemented and concretized by the fiscal regime of deep seabed mining. It first explicates the exploitation rationale underlying the common heritage principle. It argues that common heritage is a jurisdictional principle that lays the basis for the international allocation and administration of exploitation rights and, thus, for the effective economic exploitation of seabed minerals. This exploitation bias is strengthened by the perceived remoteness of deep seabed mining and the real institutional disembeddedness of the International Seabed Authority (ISA). To better understand the distribution conflicts that the law of deep seabed mining addresses, the article introduces two (competing) sets of public interest objectives: participation in exploitation and revenue generation pursued by newly independent (and, today, developing) states and access to raw materials pursued by industrialized states. The article then focuses on the different ways in which the 1982 United Nations Convention on the Law of the Sea and the 1994 Agreement on the Implementation of Part XI promote, reconcile and detract from the identified public interest objectives. It reveals how the participation objective has given way to a focus on market supply and revenue generation, and how the changes of the 1994 Implementation Agreement may be read as an attempt to dissolve the conflict between these competing public interest objectives, and to depoliticize the seabed regime. Third, the article turns to the ongoing work on a mining code for the deep seabed that, inter alia, must implement the ISA’s mandates to generate revenue from deep seabed mining and to redistribute this revenue. It shows how the ISA’s adoption of an individualist stakeholder orientation and its deference to commercial expectations of profitability, in the context of growing political attention to the oceans as a source of economic growth, are further transforming the notion of common heritage and benefit sharing and concomitantly undermine the regime’s redistributive ambitions. It also clarifies how the sponsorship of deep seabed mining by small Pacific island states holds only little promise of significant public revenue generation for these states, but may work to undermine solidarity among developing states. The article ends with a call on international lawyers to recognize the designing of a mining code for the deep seabed as the making of political economy.

Developing Countries and the Law and Politics of Remote Sensing

At the time when the Outer Space and the extra-terrestrial bodies were declared the “common heritage of all mankind” the extents of the potentials of these extra-terrestrial spaces and surfaces have yet to be determined. Remote Sensing is one of the offshoots of technological developments in the use of space which involves the direct acquisition of territorial information from sites outside the target territory. Technical developments have rendered previous restrictions on data scale, location, resolution and availability irrelevant. Considering these rapid advances, remote sensing technology is capable of generating and delivering a level of information detail that will violate individual right to privacy, which will no doubt, result to a number of direct legal and ethical consequences. Furthermore, advances in digital and information technology have resulted in rapid distribution of information to the global community. The practice of remote sensing has been difficult to justify based on the Common Heritage Principle and has given rise to political and legal questions concerning the rights of the “sensed” states and their citizens. This paper outlines the position of developing countries in the remote sensing scheme, and the effect of remote sensing on the rights of states and their citizens in theory and in practice.

Evaluation of Remote Sensing Principles 1986: The Unsolved Problems

In the collection and dissemination of satellite remote sensing data, discrepancy of principle between principle of common heritage of mankind and principle of sovereignty have always became an issue of dispute. In order to uphold the sensed state’s rights as a sovereign state, Principles on Remote Sensing 1986 had been implemented on 11 April 1986 to govern the activities of satellite remote sensing by sense State. This article attempts to identify the lacuna of law in the implementation of Principles on Remote Sensing 1986, in particular in the occasion of collection and dissemination of satellite remote sensing data. From the critical analysis which has been done by the writer, the writer concluded that Principles on Remote Sensing 1986 fails to protect the legal interest of sensed state. Therefore, the writer proposes international cooperation as the most effective solution to the lacuna of law in the Principles on Remote Sensing 1986.

NEGOTIATING CONSERVATION AND SUSTAINABLE USE OF MARINE BIOLOGICAL DIVERSITY IN AREAS BEYOND NATIONAL JURISDICTION: PROSPECTS AND CHALLENGES

Negotiations will start at the United Nations in order to draft an agreement on conservation and sustainable use of marine biological diversity beyond national jurisdiction. It will address, together and as a whole, marine genetic resources, including questions on the sharing of benefits, area-based management tools, including marine protected areas, environmental impact assessments, capacity building and transfer of marine technology. The new agreement would fill certain gaps currently existing in the United Nations Convention on the Law of the Sea. It could include provisions for strategic impact assessment of activities affecting the environment, the creation of a network of high seas marine protected areas of world importance and the establishment of a new regime for the exploitation of genetic resources. The question is open whether such a new regime should be based on the principle of the freedom of the seas, and in this case the very need of such a regime becomes questionable, or rather on the principle of common heritage of mankind. A third possibility involves a pragmatic approach, as proposed by the European Union and its Member States, an approach that however is still to be defined in its concrete elements.

Regulating the Natural Resources of the Deep Seabed: An Analysis of the UNCLOS Response to the Global Commons

The aim of this paper is to provide an analysis and evaluation of the current legal regime governing the exploration and exploitation of the natural resources of the deep seabed, seen as a response to the existing and new challenges set by the global commons. More specifically, deep-sea mining outside of national jurisdiction is the core focus. First, the study concentrates on the concept of global commons, which, applied to deep seabed mining, helps to distinguish some types of negative externalities: market inefficiencies, overexploitation (in line with the popular “tragedy of the commons”), undesirable private costs and environmental damage, as well as a risk of individual appropriation. For these reasons, the deep seabed, seen as a global commons, calls for international regulation. This paper also explores also the recent interest of this concept for international law. Second, the history and tenets of the Common heritage of mankind – the guiding principle of UNCLOS – are described. Its constitutive elements and its international legal force are discussed, reaching the conclusion that the principle as such has not yet reached the status of rule of international customary law, and that UNCLOS constitutes to this day its most elaborated version in treaty law. The precise regime for exploration and exploitation of the deep seabed as well as the institutional framework set forth by Part XI of UNCLOS are subsequently exposed. It is emphasised that no clear geographical scope can be delineated, that the concrete regime for exploitation of the deep seabed is still missing, together with institutional elements. Third, a critical analysis of the regime is conducted, taking into account the current and new trends and challenges, the sources of criticism in scholarship as well as the theoretical insights about the global commons. Critics concentrate on several aspects of the regime, such as legal uncertainty about the elements of the Common heritage principle (namely non-appropriation, use for peaceful purposes, equitable sharing of benefits and institutional system) or safeguards for the marine environment. After that, it is argued that the current framework can be considered as an overall success, despite the fact that it has lost a good deal of its substance as a result of principled disagreements among the international community, and calls for partial implementation and revision before to be given full effect.