Nayomi Goonesekere*
This piece explores the contours of the principle of the common heritage of mankind (“the Principle”) as embodied in the recently concluded text for the BBNJ Treaty, on 4 March 2023, as well as the various provisions of the major law of the sea treaties, with a special focus on treaty negotiations.
In 1967, Ambassador Arvind Pardo of Malta in his seminal address before the United Nations (U.N.) General Assembly stated that “the seabed and the ocean floor are a common heritage of mankind and should be used and exploited for peaceful purposes and for the exclusive benefit of mankind as a whole.” This concept was affirmed in the 1970 U.N. Declaration of Principles Governing the Seabed and Ocean Floor and the Subsoil thereof beyond the Limits of National Jurisdiction. In contrast to competing frameworks, the common heritage of mankind principle (“the Principle”) has strong communitarian and natural law underpinnings. It represents the notion that certain resources which fall outside national jurisdiction and to which all states have access should not be unilaterally exploited by individual states and their nationals, corporations, or other entities. It posits that an international arrangement or regime should govern the utilization of the global commons for the benefit of all humanity. The Principle is multifaceted and its core elements entail the active sharing of benefits, conservation and sustainable development, peaceful use of resources, governance via a common management system, and the obligation to cooperate.
The Principle’s status as customary international law is controversial and represents the conflicting interests of industrialized and developing states (often former colonies) who have disagreed about whether rights to common space resources should vest in all of mankind, rather than in who captured the resource, and whether benefits should be equitably distributed, taking particular notice of developing states’ needs. Amidst this difficulty, the Principle has developed as an undergirding part of international law, through codification activities by the U.N. with respect to the law of the sea, the governance regimes of the moon and outer space, and Antarctica. The recently adopted Biodiversity Beyond National Jurisdiction Treaty (“BBNJ,” “BBNJ Treaty,” or “High Seas Treaty”) and its negotiation history sheds new light on the thorny issue of whether the common heritage of mankind has achieved the status of customary international law. This piece argues that the near-universal support for the common heritage-based regime contained in the BBNJ Treaty adds force to the status of the Principle as custom, especially when coupled with its continuity in international law, both as a part of the 1982 U.N. Convention on the Law of the Sea (“UNCLOS”) and its 1994 Implementation Agreement, which enjoy widespread state acceptance today.
On March 4, 2023, diplomats representing nearly 200 countries took a giant plunge to protect the world’s oceans by endorsing the text of the BBNJ Treaty, which was later adopted by U.N. member states on June 19, 2023. The BBNJ Treaty marks the culmination of nearly 20 years of discussions regarding the conservation and sustainable use of marine areas beyond national jurisdiction, supplementing the UNCLOS. The BBNJ introduces a regime for the protection of biodiversity on the high seas and in the deep seabed, which collectively comprise nearly two-thirds of the world’s oceans. Within this agreement, the Principle that Ambassador Pardo proposed fifty-six years ago appears at the forefront of international treaty-making both through its place in the text of the BBNJ Treaty and the negotiations that preceded its finalization.
The Principle’s inclusion in the BBNJ was not a foregone conclusion. The principle had been removed from a draft of the text as recently as May 17, 2019. However, the centrality of the concept to this new regime governing the high seas and deep seabed is highlighted by the fact that the Principle made its way back into the final text, after strong retaliation by states. During the Third Session of the Intergovernmental Conference (“IGC”) on the BBNJ, the G77, China, Myanmar, Paraguay, Philippines, Thailand, and Malawi asked that the common heritage of mankind be reflected directly in the treaty text to ensure that it was fully operationalized in the relevant parts of the agreement. They stressed that it would help promote sustainable use of the high seas, equitable sharing of benefits, and capacity building in developing countries through financial and technical support. Palestine, issuing a statement on behalf of the G77 and China, reminded the delegates: “We set as our clear goal the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. This goal can only be achieved when guided by the bedrock principle of the Common Heritage of Mankind … [t]he oceans and seas beyond national jurisdiction – common to us all – are to be treasured for the benefits that shall be shared equitably with due regard for future generations.” Speaking on behalf of the African Group, Algeria observed that “adopting a new BBNJ instrument without this principle would be like giving life to a treaty of this importance without a soul, or like putting a ship in the water without a navigational instrument.”
From the start of the BBNJ negotiations in 2004, the question of the Principle’s inclusion in the BBNJ Treaty was a key point of discussion in two respects: first, in connection with its applicability to marine genetic resources in areas located beyond national jurisdiction, i.e., the High Seas, as well as the seabed and ocean floor and subsoil thereof (“the Area”). This is because the treatment accorded to marine genetic resources is one of the core substantive provisions of the BBNJ and seeks to expressly regulate the exploitation of resources such as microorganisms, bacteria, algae, corals, and other living resources. Through the Principle’s adoption, the delegates negotiating the BBNJ sought to place controls on the utilization of marine genetic resources by stipulating fair and equitable access and benefit sharing with developing states that do not have the financial or technical capabilities to collect or sample such resources. Secondly, the BBNJ Treaty as a whole enshrines the Principle both in its preamble and its provisions governing the scope of its application by express mention in the Treaty’s language.
As in the negotiations preceding earlier law of the sea treaties, such as the UNCLOS, the United States asked for the removal of the common heritage principle from the scope of substantive provisions dealing with the utilization of marine genetic resources. However, a number of other states, which include both industrialized and developing states, such as the G77, China, the Caribbean Community, and Indonesia supported the inclusion of the communitarian approach. The G77, China, and the Caribbean Community, who were the Principle’s strongest proponents during negotiations, also submitted written proposals which identified the Principle as one of the general principles that would inform the objectives and implementation of the treaty. By the Fifth (and final) Session of the IGC on the BBNJ delegates made significant progress on definitions of key terms related to marine genetic resources such as “access,” “collection,” and “utilization” in line with proposals submitted by developing states. Delegates also agreed to notify a clearing house mechanism for projects involving collection or sampling of marine genetic resources in areas beyond national jurisdiction. However, diverging views persisted on the establishment of mechanisms for access and benefit-sharing, monetary benefit-sharing, and intellectual property rights – echoing the United States’ views at the First Session of the IGC on the BBNJ that “such a regime [would] stifle or impede exploration, science, innovation, and entrepreneurship.”
Following these negotiations, the substantive provisions of the treaty now reflect the Principle’s core elements. For example, in regulating the exploitation of marine genetic resources, the BBNJ provides that the activities involving “material of marine plant, animal, microbial or other origin containing functional units of heredity of actual or potential value” (used in genetics and microbiology research as well as products such as biochemicals used in medicine, cosmetics, food supplements and industrial processes) “are in the interest of all states and for the benefit of all humanity” and must “tak[e] into particular consideration the interests and needs of developing states” (Article 11). The benefits – both monetary (such as payments for commercialization of products) and non-monetary (such as sharing research results or technology transfer) – arising out of activities involving marine genetic resources and their associated “digital sequence information” like DNA data must be shared fairly and equitably amongst states (Article 14). A clearing house mechanism which is to be established will allow for the monitoring of the collection and use of marine genetic resources (Article 12). The BBNJ thus creates groundbreaking access and benefit-sharing obligations that will require companies to pay for the use of marine genetic resources beyond national jurisdiction for the very first time. Under the existing Convention on Biological Diversity and its Nagoya Protocol, companies were only required to make monetary and non-monetary contributions in order to utilize genetic resources under national jurisdiction from national territories, national seas, and exclusive economic zones.
Further, all provisions of the BBNJ are subject to the overarching principled approach that “n order to achieve the objectives of [the] Agreement, Parties shall be guided by […] (b) the principle of the common heritage of humankind which is set out in the Convention” (Article 7(b)). The Principle is also crystalized in the Preamble, which recognizes the “importance of … a just and equitable international economic order which takes into account the interests and needs of humankind as a whole and, in particular, the special interests and needs of developing states, whether coastal or landlocked.” By incorporating the Principle into key provisions that form the object and purpose of the treaty, the BBNJ drafters have ensured that any future treaty interpretation and application in respect of the BBNJ’s substantive provisions will be guided by the Principle’s overarching values, as confirmed by the customary rules of treaty interpretation enshrined in Articles 31(1) and (2) of the Vienna Convention on the Law of Treaties.
The BBNJ’s embrace of the Principle adds new evidence to the hotly debated question of whether the common heritage of mankind has achieved the status of customary international law. Indeed, Ambassador Pardo’s ultimate objective as a proponent of this Principle was for “the common heritage principle to replace freedom of the seas as the foundation of international law of the sea.” The near-universal support enjoyed by the BBNJ Treaty, which incorporates the Principle in key substantive provisions and as a guiding element of its 76 Articles, provides strong evidence that the common heritage of mankind represents customary international law with respect to areas beyond national jurisdiction.
Briefly revisiting the negotiation and subsequent practice of the UNCLOS and its Implementation Agreement reveals that the strong natural law and communitarian underpinnings of the Principle are evident in these regimes as well. The UNCLOS’s emphasis on the importance of ensuring universal access to deep seabed mineral resources emphasizes the BBNJ and the principle of the common heritage of mankind’s continuity with existing international law.
The Principle’s continuity in international law is specifically highlighted by the rejection of the United States’ opposition to its application to the deep seabed mining regime set out in the UNCLOS. The United States eventually did not ratify the UNCLOS and instead lobbied for the inclusion of more market-oriented features in Part XI of UNCLOS, which provides a regime for the Area, by criticizing stipulations for the mandatory transfer of private technology, the possibility of national liberation movements sharing in benefits, and the absence of assured access for future qualified deep seabed miners to promote development of these resources. Nevertheless, the UNCLOS proceeded with the inclusion of the Principle in its regime for the Area in Articles 136, 137(2) and 140(1). This is especially evident where it declares that “the Area and its resources are the common heritage of mankind” and that activities in the Area are to be carried out for the benefit of mankind as a whole while paying special attention to the interests and needs of developing countries and of peoples who have not attained independence in accordance with U.N. General Assembly Resolution 1514 (XV).
The more market-oriented features advocated for by the United States were subsequently featured in the 1994 Implementation Agreement (amending Part XI of the UNCLOS). The Implementation Agreement renders inapplicable the obligation under the UNCLOS to transfer technology to developing countries and requires the Enterprise (an autonomous operational organ of the International Seabed Authority for the development of its own deep sea mining activities in the Area) to operate through joint ventures on the basis of sound commercial principles. Yet the core provisions in the UNCLOS prohibiting sovereign claims in the Area and requiring equitable sharing of benefits were not lost as a result of these changes. Notwithstanding the modifications effected by the Implementation Agreement, the tenet that the Area and its resources are the common heritage of mankind remains as an overriding and overarching mandate guiding states in the interpretation and application of the relevant provisions of Part XI of the UNCLOS and its Implementation Agreement. Cogently, the Preamble of the Implementation Agreement reaffirms that “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction … as well as the resources of the Area, are the common heritage of mankind.”
Prior to the BBNJ, the UNCLOS and its Implementation Agreement were the only examples of a widely accepted treaty regime specifically incorporating the Principle with respect to the Area and its resources. The customary international law status of the Principle is reinforced by the universal jurisdiction enjoyed by these treaties, as illustrated by the 154 states as well as the European Community, that have ratified the UNCLOS and its Implementation Agreement and have started implementing their provisions embodying the principle of the common heritage of mankind as custom. Moreover, it is a well-known fact that no state has unilaterally pursued deep seabed mining. All activity in the Area has been carried out under the UNCLOS and the Implementation Agreement. The consistency of this state practice has made multilateral agreements such as BBNJ and UNCLOS the “only game[s] in town.”
All of these treaty provisions that incorporate the common heritage principle in different ways have led to the creation of specific common heritage-based regimes that cure much of the historical uncertainty associated with the Principle’s legal status. Through the BBNJ, UNCLOS, and Implementation Agreement, the common heritage of mankind has transformed from a principle to a detailed rule with respect to the law of the sea. This is further highlighted by the context in which the Principle has developed at the U.N. through international treaty negotiations, which has strengthened its influence within international law. Decisionmakers faced with applying the Principle to a legal dispute will now have considerable certainty with respect to its meaning, scope of application and legal status. The broad manner in which the Principle has been adopted in the recent BBNJ regime will likely extend its influence to future management of common space resources such as regional fisheries and international environmental protection.
A perusal of international treaty negotiations which have impacted a large part of the world’s oceans – the seabed and the ocean floor beyond national jurisdiction as well as the high seas and deep seabed – makes it evident that the principle of the common heritage of mankind is now entrenched in the regime for the international commons. The state practice that will follow the adoption of the BBNJ Treaty will add further certainty to the customary international law status of the principle.
*Nayomi Goonesekere is a disputes associate based in London. She holds an LLM in International and Comparative Law from The George Washington University Law School as a Thomas Buergenthal Scholar. She has served as Associate Legal Officer and Judicial Fellow at the International Court of Justice.
