Hailed as a milestone in the development of international relations and sparked by the remarks of the Ambassador of Malta — Arvid Pardo — at the United Nations General Assembly, besides the 1982 United Nations Convention on the Law of the Sea, the principle of Common Heritage of Mankind found entry in numerous international treaties.
Changing the conception of the Freedom of the High Seas as brought about some 400 years ago by Dutch Lawyer Hugo Grotius and ‘ruling the world’ ever since, this paper analyzes the legal significance of the principle from an African perspective.
Based on the notions brought forward by the Group of 77, of which the African contribution to the Third United Nations Conference on the Law of the Sea was part, Nasila S. Rembe formulated the following African demands for the translation of the concept of Common Heritage of Mankind into the envisaged New Law of the Sea. These are namely: the usage of the seabed for exclusively peaceful purposes, ensuring the rational exploitation of the resources, and the minimization of likely adverse economic effects.
Following the historical developments between the 1958 Geneva Conventions and the aftermath of the 1994 Agreement Relating to the Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea, adopted as United Nations General Assembly Resolution 48/263, the paper examines the legal character of the principle of Common Heritage of Mankind in different stages and to which extend the African demands were met.
The significant changes mainly to Part XI of the 1982 United Nations Convention on the Law of the Sea brought about by the 1994 Agreement Relating to the Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea — which however let to the universal international accession to the New Law of the Sea — are seen as disadvantageous to the African aspirations for a new international economic order.
Concluding, this work contents that today’s New Law of the Sea has rendered the Principle of Common Heritage of Mankind to an empty term by — albeit its prominent position — eliminating any binding effect on the states, thus severing itself from the idea of an international utility and returning to the “Old” Law of the Sea.
Table of Contents
ABBREVIATIONS/LANGUAGE
USAGE OF TERMS
Chapter One: Introduction
1.1 Aim of Study
1.2 Significance of Examination
1.3 Existence of a General African Position?
1.4 Literature Review
1.5 Methodology
Chapter Two: Definition
Chapter Three: Municipal and International Precedents
3.1 Municipal Precedents
3.2 International Precedents
Chapter Four: The First Codification of the Freedom of the High Seas
Chapter Five: Pardo’s Proposal in the Context of the 1960s
Chapter Six: Legal Nature in Comparison to Old Concepts of the High Sea
Chapter Seven: Africa’s Aims in the UNCLOS III
7.1 Seabed
7.1.1 The Usage of the Seabed for Exclusively Peaceful Purposes
7.1.2 Ensuring the Rational Exploitation of the Resources
7.1.3 The Minimization of Likely Adverse Economic Effects
7.2 The High Seas above the Seabed
Chapter Eight: The Implementation of CHOM in the 1982 Convention
8.1 Non-Appropriation of the Seabed
8.2 International Management
8.3 Sharing of Benefits
8.4 Reservation of the Seabed for Peaceful Purposes
8.5 Preservation for Future Generations
Chapter Nine: Reflection of Africa’s Demands in the 1982 Convention
Chapter Ten: The LOS after the 1982 Convention
Chapter Eleven: The Legal Character of the Principle
11.1 Jus Cogens?
11.2 Customary Public International Law?
Chapter Twelve: Possibility of Implementation
Chapter Thirteen: The 1994 Agreement
13.1 Policy of Production — Elimination of Production Limitations
13.2 Elimination of Mandatory Transfer of Technology
13.3 Change of Decision-Making in the Council
13.4 Reduction of Financial Contributions of Corporations
13.5 Funds for Economic Aid
Chapter Fourteen: Summary — The Situation Since 1994
14.1 The Usage of the Seabed for Exclusively Peaceful Purposes
14.2 Ensuring the Rational Exploitation of the Resources
14.3 The Minimization of Likely Adverse Economic Effects
14.4 Democratic Machinery
Chapter Fifteen: Conclusion — Contemporarily a “Just” System as Envisaged by Africa?
Objectives and Thematic Scope
This thesis examines the legal significance and the implementation of the "Common Heritage of Mankind" (CHOM) principle within the Law of the Sea, specifically from an African perspective as influenced by the work of Nasila S. Rembe. The study explores whether the modern maritime legal framework truly aligns with the development aspirations of African nations or if it has hollowed out the principle.
- The historical transition from the Grotian "Freedom of the High Seas" to the CHOM principle.
- African demands for equitable resource exploitation, peaceful seabed usage, and economic protection.
- The structural impact of the 1982 UNCLOS and the 1994 Agreement on these aspirations.
- The legal character of CHOM as a norm of international law or mere policy statement.
Auszug aus dem Buch
CHAPTER ONE: Introduction
The known resources of the seabed and of the ocean floor are far greater than the resources known to exist on dry land. The seabed and the ocean floor are also of vital and increasing strategic importance. [...] Some countries may therefore be tempted to use their technical competence to achieve near-unbreakable world dominance through predominant control over the seabed and the ocean [...] [floor, which] will lead to a competitive scramble for sovereign rights over the land underlying the world’s seas and oceans, surpassing in magnitude and in its implication last century’s colonial scramble for territory in Asia and Africa.
For most people however, being more concerned with the visible surface of the ocean and originating not from the regions most likely to be affected by this “scramble,” the expression “Freedom of the High Seas” has solely a positive sound. It is the freedom mankind longs for: wide open space, together with savagery, the untamable roaring, the salty air which lets one breath freer and makes the heart beat faster.
This perception dates back nearly 400 years, to a time, when Dutch lawyer, philologist, theologian, poet and politician Hugo Grotius published his visionary dissertation “Mare liberum.” This point of view proved to be too visionary for the hegemine maritime powers of the time, which were entangled in the emerging concept of ‘sovereignty of State,’ and initially challenged Grotius’ allegedly absolute liberal conception.
Summary of Chapters
Chapter One: Introduction: Outlines the strategic importance of the seabed and the historical context of the "Freedom of the High Seas" vs. the "Common Heritage of Mankind."
Chapter Two: Definition: Defines the core concepts of "common heritage" and "mankind," including their geographical and temporal dimensions.
Chapter Three: Municipal and International Precedents: Explores existing precedents in municipal land laws and early international efforts to manage shared natural resources.
Chapter Four: The First Codification of the Freedom of the High Seas: Analyzes the 1958 Geneva Convention and the early concerns regarding nuclear testing and deep-sea exploitation.
Chapter Five: Pardo’s Proposal in the Context of the 1960s: Discusses the historical shift during the 1960s, driven by Arvid Pardo’s speech and changing geopolitical conditions.
Chapter Six: Legal Nature in Comparison to Old Concepts of the High Sea: Compares the traditional res communis omnium with the newer, more comprehensive CHOM principle.
Chapter Seven: Africa’s Aims in the UNCLOS III: Details the specific objectives of African states, focusing on peaceful use, rational exploitation, and economic stability.
Chapter Eight: The Implementation of CHOM in the 1982 Convention: Evaluates how the 1982 LOS Convention attempted to translate CHOM into a governing treaty regime.
Chapter Nine: Reflection of Africa’s Demands in the 1982 Convention: Assesses the extent to which the 1982 Convention addressed the core African aspirations.
Chapter Ten: The LOS after the 1982 Convention: Examines the challenges faced by the 1982 Convention, particularly the resistance from major industrialized nations.
Chapter Eleven: The Legal Character of the Principle: Investigates the ongoing debate over whether CHOM constitutes a peremptory norm (jus cogens) or customary international law.
Chapter Twelve: Possibility of Implementation: Discusses the practical challenges of implementing such an abstract principle within a diverse international community.
Chapter Thirteen: The 1994 Agreement: Reviews the revisions made to the 1982 Convention, specifically addressing the changes to production policies and decision-making.
Chapter Fourteen: Summary — The Situation Since 1994: Summarizes the current state of affairs and the divergence from original African demands.
Chapter Fifteen: Conclusion — Contemporarily a “Just” System as Envisaged by Africa?: Provides a final verdict on the current state of the international maritime regime regarding fairness and the "Common Heritage of Mankind."
Keywords
Common Heritage of Mankind, CHOM, Law of the Sea, UNCLOS, African Perspective, International Maritime Law, Seabed Mining, Sovereignty, Developing Countries, Resource Management, International Economic Order, 1994 Agreement, Legal Norms, Equity, Jus Cogens.
Frequently Asked Questions
What is the primary objective of this work?
This thesis aims to analyze the legal significance of the "Common Heritage of Mankind" (CHOM) principle in the Law of the Sea, evaluating whether the current international framework truly reflects the aspirations and demands of African nations.
What are the core thematic areas discussed in the book?
The core themes include the historical shift in ocean governance, the specific development demands of African states within UNCLOS, the implementation of CHOM within the 1982 Convention, and the subsequent adjustments made by the 1994 Agreement.
What research methodology does the author apply?
The author employs a comprehensive literature-based methodology, collecting material from various law centers, institutional libraries (such as the University of Dar es Salaam and Cologne), and analysis of UN documents and recent international developments.
What is the central research question?
The research question asks whether the translation of the abstract concept of CHOM into legal principles within the "New Law of the Sea" (especially post-1994) actually protects the interests of developing nations or remains a hollow phrase.
What does the main body of the work cover?
The main body covers the definition of the principle, its historical precedents, the negotiation process of UNCLOS III, the specific demands of the Group of 77/African states, and the legal analysis of the 1982 Convention and the 1994 Agreement.
Which keywords best characterize this research?
Key terms include Common Heritage of Mankind, Law of the Sea, UNCLOS, African development aspirations, international economic order, seabed exploitation, and legal norms.
How does the 1994 Agreement affect the CHOM principle?
The 1994 Agreement effectively watered down many of the original provisions of the 1982 Convention that favored developing nations, such as mandatory technology transfers and production limitations, in order to gain the support of industrialized nations.
What is the author's conclusion regarding the current state of CHOM?
The author concludes that the principle, as implemented in the post-1994 era, has been rendered largely symbolic, failing to establish the equitable economic order initially envisioned by African delegates.
- Quote paper
- LL.M. Timo Knaebe (Author), 2006, The principle of common heritage of mankind in the new law of the sea: An African perspective based on Nasila S. Rembe’s work, Munich, GRIN Verlag, https://www.grin.com/document/59320
