24 Feb Memorandum on the Common Heritage of Mankind and Biodiversity Beyond National Jurisdiction (Part II)
[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.)
In Part I we presented the legal arguments that support including the common heritage principle in the BBNJ Agreement. In Part II we continue by examining the policy choices and values that underlie these formal legal arguments. We conclude by reflecting on the stakes attached to the textual choices facing delegates to the ICG negotiating the BBNJ Agreement in the coming days.
Underlying Policies and Values
There are important policy choices and values underpinning the textual interpretation supporting the inclusion of the common heritage of mankind principle in the BBNJ Agreement. A regime of common heritage of mankind materializes the two central objectives of the Agreement, namely, the conservation and sustainable use of marine biological diversity, on the one hand, and on the other, the establishment of an ocean governance regime that is fair to all countries across the globe.
First, the common heritage of mankind principle is better tailored towards conservation because it ‘encloses’ a global common into a regime of regulated, rather than free access. In this sense, including the principle reinforces regulations and mechanisms in the Agreement aimed at conservation and sustainable use of marine biological diversity, such as the environmental impact assessment obligations contained in Part IV. Moreover, an interpretation attentive to the progressive development of international law would sustain an ecological reconceptualization of the principle transcending its anthropocentric origins. Since its inception during outer space negotiations, the common heritage of mankind principle served not only to place the interest of humankind as a whole at the center, but also to include the interests of future generations as well as global fairness considerations. Today, in light of the current climate, biodiversity and ecological crises, the common heritage of mankind principle embodies a response from the international community that enlarges the scope of moral and political concern, from states, to humanity, to future generations, to nature. Including the principle in the BBNJ Agreement represents a decisive step in the direction of tackling the contemporary ecological crises.
Second, the common heritage of mankind principle also reflects a vision about a fair international community. Since its inception and then its inclusion in UNCLOS, the principle emerged to guide international cooperation and solutions to global problems and challenges in ways that correct for injustices and inequalities. Invoking the interests of humanity as a whole, the common heritage principle calls for the sharing of benefits, especially regarding less affluent and developing countries. Including the principle, therefore, strengthens the rules and mechanisms in the Agreement that establish benefits sharing, technology transfer and capacity-building, among others.
Conversely, the argument that the common heritage of mankind should be excluded from the BBNJ Agreement represents a policy choice in favour of a laissez faire economic and environmental paradigm that has led the world into the current crises. A previous implementing agreement, the Agreement relating to the Implementation of Part XI of UNCLOS (the 1994 Agreement), embodies this unregulated market orientation. Negotiation of this agreement was initiated in the early 1990s when it appeared UNCLOS would receive enough ratifications to come into force despite several developed states having refused to become parties due to their objections to the system set out in Part XI, by which the ISA would administer mining for seabed minerals and redistribute profits generated by such mining. The outcome of these negotiations was a series of significant concessions on the part of developing states, with large parts of Part XI as agreed during UNCLOS III being rewritten in the 1994 Agreement.
The changes made by the 1994 Agreement pursued an ideology of market liberalism that prioritized the ability of private economic operators to access delicate, finite natural resources in as market oriented a manner as possible. If the way the ISA has cooperated with private mining companies has recently been subjected to some scrutiny, it is important to recall the extent to which the 1994 Agreement made the ISA dependent on private mining operators if it is to oversee any resource exploitation at all. To omit the common heritage of mankind principle from the BBNJ Agreement is to again choose to prioritize the ability of private companies to exploit finite and delicate natural resources in as unregulated a manner as possible.
It should be noted that while the arguments presented in this memorandum have been developed in a large body of scholarly literature spanning academic disciplines over the past several decades, the legal arguments advanced by states that have opposed including the common heritage principle in the BBNJ Agreement have a ghostly quality. While they are articulated on a non-attributable basis within negotiating rooms, for the most part they cannot be found in scholarly or public debate. For this reason, it is difficult to subject them to scrutiny.
This memorandum has presented the legal arguments supporting the inclusion of the common heritage of mankind principle in the BBNJ Agreement. A simple textual interpretation of UNCLOS as well as an interpretation based on relevant policy choices and underlying values, support the argument that marine genetic resources, both on the seabed and in the water column beyond national jurisdiction, are a common heritage of mankind.
It is important to note where legal disagreement lies regarding interpretations of relevant international law of the sea norms and principles. The applicability of the common heritage of mankind principle to marine genetic resources beyond the limits of national jurisdiction remains a point of contention in BBNJ negotiations. However, the legal validity of the common heritage of mankind principle and its applicability to the Area is undisputed. This conclusion is uncontroversial for the 168 signatories to UNCLOS. The conclusion is the same, under customary international law, for states that have not ratified UNCLOS. Most states and commentators consider the common heritage principle as part of customary international law, as it reflects a general state practice responding to the conviction that there is an existing and underlying legal obligation (an example as early as 1983). The United States, for example, like every other state of the international community is bound by the common heritage principle under customary international law. Specifically, as the custom was forming the United States never objected to its crystallization. Moreover, the US Congress passed the Deep Seabed Hard Mineral Resources Act, not only recognizing the common heritage of mankind, but also establishing a temporary framework for seabed mining, while an UNCLOS implementation agreement was negotiated. In consequence, while widespread ratification reflects a general practice, the recognition of the principle by a state not party to the treaty – such as the US legislating on the implementation of the principle while implementation was under negotiation – is an expression of the conviction that it is acting according to an underlying legal obligation (identifying this legislation as a sign of opinio juris see, among others, D’Amato).
Current negotiations over the BBNJ Agreement represent a unique opportunity to include the principle of the common heritage of mankind to strengthen the international community’s response to global problems like the protection of marine biological diversity in ways more attuned to sound ideas about economic and environmental thinking, ideas advocated ever more vigorously from the global civil society to the United Nations. Current negotiations also offer an opportunity to developing countries from the Global South, to come together in unity, and under the auspices of the G77, to demand conservation of marine genetic biodiversity and a fair ocean governance regime. It is because of the vision of international lawyers, diplomats and leaders of the Global South that since the 1950s the international community, overcoming the particular interests of a limited number of affluent states, has recognized humanity’s collective destiny and responsibility in relation to goods, spaces or beings held in common, like nature, the oceans, the outer space. Invoking the legacies of Aldo Cocca, Arvid Pardo and so many others, the Global South reaffirms the common heritage of mankind today.