Common heritage of humanity is a principle ofinternational law that holds the defined territorial areas and elements of humanity's common heritage (cultural andnatural) should be held in trust forfuture generations and be protected from exploitation by individualnation states orcorporations. Some possible examples include global communication between individuals over theinternet andgeostationary orbit over thehigh seas.
It is also termed thecommon heritage of mankind,common heritage of humankind orcommon heritage principle.
In tracing the origins of the common heritage principle, it is important to distinguish its history as a term from itsconceptual history. The common heritage principle was developed under different names, including common "heritage", common "property", and common "patrimony" of mankind. These terms have at times described different concepts; for instance, in 1813 the "property of mankind" might mean the arts and sciences,[1] rather than items or areas. By the early 20th century, "common heritage" and similar terms usually referred to areas and the resources in them,[2] while other referents had become known under terms like "cultural heritage of all mankind", such as in the preamble to the 1954Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.[3]
Conceptually, the common heritage arose in response to theRoman civil law principle ofres communis, which described items or areas that anyone could access or use, but none could own.[4] Common heritage instead described areas or items that were owned by humanity as a collective. For example, in his essayToward Perpetual Peace,Immanuel Kant claimed that the expansion of hospitality with regard to "use of the right to the earth's surface which belongs to the human race in common" would "finally bring the human race ever closer to a cosmopolitan constitution".[5]
The first known use ofCommon Heritage of Mankind by a state representative in the United Nations, constitutingstate practice, was at theFirst UN Conference on the Law of the Sea byPrince Wan Waithayakon ofThailand in 1958.[6] The role of 'mankind' as a legal subject was mentioned in negotiations for the 1967Outer Space Treaty, and mentions of 'mankind' appear across the space treaties.[7] 'Mankind' as a subject in international law also appears in the Preamble of theUnited Nations Charter, the Preamble of theNorth Atlantic Treaty (1949) and theTreaty on the Non-Proliferation of Nuclear Weapons (1968).[8]
In 1970,United Nations General Assembly Resolution 2749, theDeclaration of Principles Governing the Seabed and Ocean Floor, was adopted by 108 nation states and stated that the deep seabed should be preserved for peaceful purposes and is the "Common Heritage of Mankind."[9]
In 1982, the Common Heritage of Mankind concept was stated to relate to "the seabed and ocean floor andsubsoil thereof, beyond the limits of national jurisdiction" under Article 136 of theUnited NationsLaw of the Sea Treaty (UNCLOS).[10]
In his book titledCries of the Sea: World Inequality, Sustainable Development and the Common Heritage of Humanity, Payoyo argues that thecommon heritage of humanity principle in Part XI of theLaw of the Sea Treaty should favour developing states who were the voice ofconscience in establishing it, and not merely in some transient 'affirmative action' manner.[11] He claims, however, that the 1994Implementation Agreement facilitated control by industrialised countries of theInternational Seabed Authority (ISA), allowing access by the private sector to the deepsea bed and inhibiting constructive dialogue on sustainable development.[12]
In July 2024, during the International Seabed Authority’s 29th General Assembly,Palau's PresidentSurangel Whipps Jr., in his address entitled Upholding the Common Heritage of Humankind," emphasized the importance of safeguarding the ocean from exploitation and modern-day colonialism.[13][14][15]
Former Maltese AmbassadorArvid Pardo, one of the founders of thecommon heritage of humanity concept under international law, has claimed that it challenges the "structural relationship between rich and poor countries" and represents a "revolution not merely in the law of the sea, but also in international relations".[16] One of the main architects of the principle under internationalspace law has claimed that it is "the most important legal principle achieved by man throughout thousands of years during which law has existed as the regulating element of social exchange".[17] This praise relates to the fact thatinternational law in thecommon heritage of humanity principle is seeking to protect, respect and fulfill the interests of human beings independently of any politically motivatedsovereign state; the concept covering all humans wherever they are living, as well as future generations.[8][18]
Jennifer Frakes has identified five core components of the Common Heritage of Humanity concept.[19] First, there can be no private or public appropriation; no one legally owns common heritage spaces. Second, representatives from all nations must manage resources contained in such a territorial or conceptual area on behalf of all since a commons area is considered to belong to everyone; this practically necessitating a special agency to coordinate shared management. Third, all nations must actively share with each other the benefits acquired from exploitation of the resources from the commons heritage region, this requiring restraint on the profit-making activities of private corporate entities; this linking the concept to that ofglobal public good. Fourth, there can be no weaponry or military installations established in territorial commons areas. Fifth, the commons should be preserved for the benefit of future generations, and to avoid a "tragedy of the commons" scenario.[19] Academic claims have been made that where the principle requires the establishment of an international resource management regime, prior to establishment of such a regime amoratorium on resource exploitation should be enforced.[20][21] Such a position does not appear to have been supported by most states during the respective drafting negotiations.[22]
| Outer space(including Earthorbits; theMoon and othercelestial bodies, and their orbits) | |||||||
| nationalairspace | territorial waters airspace | contiguous zone airspace[citation needed] | international airspace | ||||
| land territory surface | internal waters surface | territorial waters surface | contiguous zone surface | Exclusive Economic Zone surface | international waters surface | ||
| internal waters | territorial waters | Exclusive Economic Zone | international waters | ||||
| land territoryunderground | Continental Shelf surface | extended continental shelf surface | international seabed surface | ||||
| Continental Shelf underground | extended continental shelf underground | international seabed underground | |||||
A similar principle of international law holds that the world'scultural and natural heritage (as nominated for listing by nation states) must be protected by states parties to theUNESCOWorld Heritage Convention.[23]
A case study in the use of these provisions was provided by theFranklin Damnon-violent protest campaign against the construction of a dam ofAustralia's last wild river; they being held by theAustralian High Court to provide a valid basis for legislation protecting theFranklin River. Justice Lionel Murphy wrote in that case (Commonwealth v Tasmania) about the Common Heritage of Humanity principle: "The preservation of the world's heritage must not be looked at in isolation but as part of the co-operation between nations which is calculated to achieve intellectual and moral solidarity of mankind and so reinforce the bonds between people which promote peace and displace those of narrow nationalism and alienation which promote war ... [t]he encouragement of people to think internationally, to regard the culture of their own country as part of world culture, to conceive a physical, spiritual and intellectual world heritage, is important in the endeavour to avoid the destruction of humanity."[24]
The UNESCOUniversal Declaration on the Human Genome and Human Rights declares in Article 1 that: "Thehuman genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity." Article 4 states: "The human genome in its natural state shall not give rise to financial gains."[25] Such Declarations do not create binding obligations underinternational law (unless over time there is sufficientopinio juris and state practise to make them part ofinternational customary law) so the impact of such principles ofcommercialisation of thehuman genome will be problematic.[26] Whether the principle prohibits thepatenting of thehuman genome is contested by the corporate sector.[27]
Proclaimed on November 12, 1997, theUNESCODeclaration on the Responsibilities of the Present Generations Towards Future Generations is an international agreement (potentially part of international customary law) which includes provisions related to thecommon heritage of mankind.[28]
'The present generations have the responsibility to bequeath to future generations an Earth which will not one day be irreversibly damaged by human activity. Each generation inheriting the Earth temporarily should take care to use natural resources reasonably and ensure that life is not prejudiced by harmful modifications of the ecosystems and that scientific and technological progress in all fields does not harm life on Earth.'
— UNESCO,Declaration on Future Generations Article 4
'With due respect for human rights and fundamental freedoms, the present generations should take care to preserve the cultural diversity of humankind. The present generations have the responsibility to identify, protect and safeguard the tangible and intangible cultural heritage and to transmit this common heritage to future generations.'
— UNESCO,Declaration on Future Generations Article 7
'The present generations may use the common heritage of humankind, as defined in international law, provided that this does not entail compromising it irreversibly.'
— UNESCO,Declaration on Future Generations Article 8
'1. The present generations should ensure that both they and future generations learn to live together in peace, security, respect for international law, human rights and fundamental freedoms.
2. The present generations should spare future generations the scourge of war. To that end, they should avoid exposing future generations to the harmful consequences of armed conflicts as well as all other forms of aggression and use of weapons, contrary to humanitarian principles.'
— UNESCO,Declaration on Future Generations Article 9
The declaration affirms in itspreamble that Indigenous Peoples contribute to humanity's common heritage.
It was argued at theWorld Summit on the Information Society and has been advocated by academics that global communication between individuals over theinternet should be regarded as part of the Common Heritage of Mankind.[29] Equatorial countries have proposed that thegeostationary orbit over thehigh seas should be declared thecommon heritage of mankind.[30]
Kemal Baslar has stated that the Common Heritage of Mankind principle "is a philosophical idea that questions the regimes of globally important resources regardless of their situation, and requires major changes in the world to apply its provisions. In other words, the application and enforcement of the common heritage of mankind require a critical reexamination of many well-established principles and doctrines of classicalinternational law, such as acquisition of territory, consent-based sources of international law,sovereignty,equality,resource allocation and international personality."[31]
Thecommon heritage of humanity principle in international law has been viewed as one solution to thetragedy of the commons dilemma described in an influential article by that name written byGarrett Hardin in the journalScience in 1968.[32][33] The article critically analyzes a dilemma in which multiple individuals, acting independently after rationally consulting self-interest, ultimately destroy a shared limited resource even when each acknowledges that outcome is not in anyone's long-term interest. Hardin's conclusion that commons areas are practicably achievable only in conditions of low population density and so their continuance requires state restriction on the freedom to breed, created controversy particularly through his deprecation of the role ofconscience in achieving justice and equality in society.[34] Hardin's views have been noted by scholars and policy-makers supporting privatization of common spaces and suggestingeconomic rationalism on such social and ecosystems.[35]
The extent to which the Common Heritage of Mankind principle does or should control the activities of privatemultinational corporations as well asnation states, particularly with regard tomining activities, remains controversial.[36]Least developed nations often see the principle as a means of protecting critical resources from exploitation by capitalist nations and their corporations.[19] As world oil, coal and mineral reserves are depleted there will be increasing pressure to commercially exploit Common Heritage of Mankind areas.[37] It appears at the present time that exploration of outer space is unlikely to initially proceed under the jurisdiction of a supranational organization, but rather through the coordination of national space programs.[38] It has been argued that photosynthesis in its natural or artificial forms should be considered the common heritage of humanity.[39]
Declaring the "riches of the sea" and the "immense wealth of the Antarctic region" "the patrimony of the whole human race.;League of Nations Conference for the Codification of International Law (1930-05-02). "3". Final Act of the Conference for the Codification of International Law (Report). Vol. 5. League of Nations. p. 15.
Calling maritime resources the "common patrimony of mankind"
Thus, the following things are by natural law common to all—the air, running water, the sea, and consequently the seashore. No one therefore is forbidden access to the seashore, provided he abstains from injury to houses, monuments, and buildings generally; for these are not, like the sea itself, subject to the law of nations.Fenn, Percy Thomas (1925)."Justinian and the Freedom of the Sea".The American Journal of International Law.19 (4):716–727.doi:10.2307/2188310.ISSN 0002-9300.JSTOR 2188310.
