24 Feb Memorandum on the Common Heritage of Mankind and Biodiversity Beyond National Jurisdiction (Part I)
[Ríán Derrig is a Postdoctoral Fellow at the WMU-Sasakawa Global Ocean Institute of the World Maritime University.Arnulf Becker Lorca is Research Professor at Pontifical Catholic University of Valparaíso and Visiting Researcher at Harvard Law School.]
This two-part post is the text of a memorandum prepared for delegates in advance of the resumption of the fifth session of the Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction [the BBNJ process], held at United Nations Headquarters, New York, 20 February to 3 March 2023.)
IGC 5 of the BBNJ process resumed on February 20, for what is intended to be its final session. Inclusion or exclusion from the treaty text of the common heritage of mankind principle is currently a point of contention. In two parts, this memorandum presents the legal case for the inclusion of the principle. First, it suggests that the best interpretation of the United Nations Convention on the Law of the Sea (UNCLOS) requires States Parties to UNCLOS to implement the principle through the projected BBNJ implementing agreement. Second, highlighting the policies and values underlying the principle, the memorandum suggests that the common heritage of mankind in the BBNJ Agreement responds appropriately to contemporary interlocking crises – with respect to human induced climate change, to dramatic biodiversity loss, and to global economic inequality. Excluding the principle, in contrast, prioritizes the exploitation of finite resources by private corporations under free market principles, sidelining the protection of delicate seabed ecosystems and the fair distribution of benefits arising from the exploitation of a common good.
Obligations Deriving from UNCLOS to Implement the Common Heritage of Mankind Principle
In the draft text from which this resumed session of IGC 5 has departed, the common heritage of mankind principle is included, in square brackets, as paragraph (b) of article 5 ‘General principles and approaches.’ Language referencing the principle is also found in the preamble, and again within square brackets as paragraph (5) of article 9, ‘Activities with respect to marine genetic resources of areas beyond national jurisdiction’.
There are two formal legal arguments for removing these square brackets and including the principle, and all instances of language referencing it, in the preamble and operative paragraphs of the treaty text, and particularly for identifying it as a principle in article 5. These arguments also support the conclusion that because they are specified under UNCLOS, there is no formal legal reason freedoms of the high seas should be referenced in the preamble or in operative paragraphs of the treaty. Both arguments are based on textual interpretations of UNCLOS, the treaty the BBNJ Agreement is intended to implement.
The first legal argument maintains that activities with respect to marine genetic resources in the seabed and ocean floor beyond the limits of national jurisdiction, fall within the scope of the common heritage of mankind principle under UNCLOS. The second argument maintains that activities with respect to marine genetic resources beyond the limits of national jurisdiction in waters subjacent to the seabed and ocean floor, do not fall within the freedoms of the high seas under UNCLOS. Each will be addressed in turn.
The Location and Nature of the Marine Genetic Resources
The first legal argument turns on the location and nature of the resources of areas beyond national jurisdiction, the sustainable use of which the BBNJ Agreement is intended to regulate.
I. The Location of Marine Genetic Resources
Regarding location, the principal category of resource exploitation that will be regulated by the BBNJ Agreement is bioprospecting for marine genetic resources. To the extent that these living marine organisms are harvested from the seabed, bioprospecting falls clearly within the space defined by UNCLOS as “the Area:” ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’ (UNCLOS, article 1(1)). Art 136 of UNCLOS declares that ‘the Area and its resources are the common heritage of mankind.’ On this textual basis alone, it may be concluded that activities with respect to marine genetic resources beyond national jurisdiction fall within the scope of the common heritage of mankind. This is analogous to the way that sedentary living species in areas under national jurisdiction fall within the legal regime governing the continental shelf (highlighting this analogy: Pfirter).
In the UNCLOS regime, the common heritage of mankind is a jurisdictional principle that is centrally concerned with resource exploitation for the benefit of mankind as a whole. It is a mechanism for allocating jurisdiction to determine who can exploit which resources, where they can do so, and for ensuring conservation and equitable exploitation of these resources (see: Feichtner). The specific exploitation regime then established by Part XI of UNCLOS allocates jurisdiction to the International Seabed Authority (ISA) to determine which entities can exploit seabed mineral resources, under what conditions. As a result of this functional quality of the common heritage of mankind principle, the BBNJ Agreement implements UNCLOS as the Agreement establishes a specific regime for the conservation and sustainable use of marine biological diversity.
That the BBNJ Agreement implements UNCLOS is particularly relevant in relation to the common heritage of mankind. According to Article 311(6) of UNCLOS ‘States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof.’ This unusual and significant provision prohibiting UNCLOS States Parties from becoming party to any succeeding agreement amending or derogating from the common heritage of mankind principle, clearly limits the scope of the BBNJ Agreement. This provision was included to respond to the demand made by several delegations to UNCLOS III that the common heritage principle be recognized as a jus cogens norm (one recognized as so fundamental that international law prohibits derogation) in the treaty text.
The parameters of the BBNJ negotiations are already constrained by the fact that what is being negotiated is an implementing agreement, an instrument intended to implement detailed aspects of an overarching parent treaty, but these constraints harden significantly due to article 311(6). An agreement that permitted alienation of part of the common heritage of mankind by means of failing to recognize the jurisdiction of this principle would clearly contravene article 311(6).
II. The Nature of Marine Genetic Resources
Regarding the nature of marine genetic resources in the BBNJ Agreement, there is sufficient textual support to argue that these resources are included in the common heritage principle under UNCLOS. A qualification that has fostered interpretive confusion with regard to the legal status of seabed marine genetic resources is found in article 133(a) of UNCLOS, which states that for the purposes of Part XI, ‘“resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules’.
However, article 136 of UNCLOS defines not only the ‘resources’ of the Area, but the Area as a whole, as the common heritage of mankind. The preparatory works of UNCLOS III support the conclusion that by introducing a definition of resources the drafters did not intend to exclude non-mineral resources of the Area from the scope of the common heritage of mankind. In fact, while its content was contested, agreement was widespread across all delegations, including developing and developed countries, that the common heritage of mankind principle should apply at a minimum to the Area in an unrestricted manner (see the drafting history concerning the common heritage of mankind).
Moreover, in early sessions of UNCLOS III, as delegates drew on General Assembly Resolution 2749 (XXV), the ‘Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction’, resources were very broadly understood and discussion frequently explicitly addressed organic and inorganic resources of the Area without controversy. As the sessions progressed, mining for mineral resources, the only resources thought recoverable from the Area in the 1970s, became a preoccupation of delegates as provisions were added to Part XI that set out in ever more exhaustive technical detail the terms under which mining could be undertaken. It was in this context of greater and greater technical elaboration of the way mining would be regulated that the article 133(a) definition of resources was added, without, however, the idea that non-mineral resources should be excluded from the scope of the common heritage of mankind being raised. The text still evinces that the drafters were not concerned with such an act of exclusion. While the narrow definition of ‘resources’ is explicitly limited in its application to Part XI, ‘activities in the area’ are defined without this caveated understanding of resources, for the purposes of the whole convention, in article 1(3) as ‘all activities of exploration for, and exploitation of, the resources of the Area’.
The Common Heritage of Mankind Principle
The second legal argument maintains that the common heritage of mankind principle extends to bioprospecting for marine genetic resources occurring in the water column. Put simply, bioprospecting is not an activity included within the high seas freedoms determined by article 87 of UNCLOS. Of the freedoms enumerated in article 87(1), it would seem to resemble marine scientific research (on this, and on the clear distinction between fishing and bioprospecting see: Scovazzi). However, this freedom is subject to the terms of Part XIII. Article 248 of that Part specifies that, ‘Marine scientific research activities shall not constitute the legal basis for any claim to any part of the marine environment or its resources’. Bioprospecting for marine genetic resources for the purpose of creating products for commercial sale, relying for legal authority on a claim to be marine scientific research, would seem to violate this prohibition. Moreover, the preparatory works of UNCLOS III recurrently evince a strong view among the drafters that provisions concerning marine scientific research were not intended to provide licence for commercial activities.
The argument that bioprospecting for marine genetic resources in the water column of areas beyond national jurisdiction is a customary high seas freedom unenumerated in UNCLOS is unsustainable. Under customary international law, high seas freedoms extend to activities in relation to non-excludable goods, that is, activities that do not diminish the ability of others to exercise the same freedoms, like navigation or fishing (even if contemporary scientific knowledge tells us that overfishing, for example, does so).
Bioprospecting for marine genetic resources is incompatible with high seas freedoms because it creates excludable private goods. This is the case not only because ownership of the genetic information that constitutes the value at the core of this activity is very much exclusive and protected from reproduction by intellectual property laws, but also because if this activity is treated as a high seas freedom it would confer a right to privatize common goods on a small number of private actors with ownership of advanced technology and their host States, to the exclusion of much of the rest of the world. This would be an unsurprising outcome, because the high seas structurally favour dominant market economies of developed countries that have the resources to exercise the high seas freedoms.
It should be noted that before UNCLOS III, some developed countries argued that seabed mining was a high seas freedom. This argument was ultimately rejected, as should the suggestion that bioprospecting for marine genetic resources in the water column is a high seas freedom. As Dire Tladi has concluded: ‘there is no a priori reason why an implementing agreement could not provide for the application of the common heritage of mankind principle, subject to certain limited freedoms of the high seas as specifically spelled out in [UNCLOS]’.
A body of contemporary interdisciplinary scholarship recurrently notes the challenges to ocean conservation created by the spatial boundaries instated by UNCLOS, and the artificial distinctions between different categories of living organisms and geological features that in fact constitute intimately interconnected ecosystems. Cognizant of this knowledge, it is desirable that marine genetic resources in the water column and of the seabed be subject to a unified legal regime. In consequence, marine genetic resources in both the water column and the Area should be regarded as a common heritage of mankind, for extending the regime of the high seas to bioprospecting for marine genetic resources of the Area would be in clear violation of UNCLOS article 311(6). States Parties to UNCLOS could not become parties to an agreement that permitted alienation of part of the Area through non-recognition of the common heritage of mankind.