The principle of common heritage of mankind in the new law of the sea: An African perspective based on Nasila S. Rembe’s work

Trabajo Universitario , 2006 , 71 Páginas , Calificación: B+

Derecho - Derecho europeo e Internacional, Derecho internacional privado

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.

Inhaltsverzeichnis (Table of Contents)

• 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

Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)

This thesis examines the legal significance of the principle of Common Heritage of Mankind from an African perspective, analyzing its evolution from the Freedom of the High Seas concept to its incorporation into the New Law of the Sea. It focuses on the African demands formulated by Nasila S. Rembe, who reflected the views of the Group of 77, particularly regarding the peaceful use of the seabed, rational resource exploitation, and minimizing negative economic impacts.

• The principle of Common Heritage of Mankind (CHOM)
• The New Law of the Sea and its impact on Africa
• African demands regarding the seabed and resources
• The historical development of the concept of CHOM
• The legal character of CHOM in international law

Zusammenfassung der Kapitel (Chapter Summaries)

This thesis explores the historical development and legal significance of the principle of Common Heritage of Mankind (CHOM) in international law, particularly through an African lens. The introductory chapter establishes the thesis's aim, its significance, and its methodology. Chapter Two defines CHOM, while Chapter Three explores its municipal and international precedents. Chapter Four delves into the first codification of the Freedom of the High Seas, followed by an examination of Arvid Pardo's proposal in the context of the 1960s in Chapter Five. Chapter Six compares the legal nature of CHOM to older concepts of the High Seas. Chapter Seven highlights Africa's objectives in the UNCLOS III, focusing on the peaceful usage of the seabed, rational resource exploitation, and minimizing adverse economic effects. Chapter Eight investigates the implementation of CHOM within the 1982 Convention, addressing key aspects such as non-appropriation, international management, benefit sharing, and preservation for future generations. Chapter Nine examines the reflection of African demands in the 1982 Convention. Chapter Ten looks at the development of the Law of the Sea after the 1982 Convention, while Chapter Eleven delves into the legal character of the principle, exploring its potential as Jus Cogens or customary international law. Chapter Twelve explores the possibility of implementing CHOM. Chapter Thirteen analyzes the 1994 Agreement, focusing on its effects on production policies, technology transfer, decision-making processes, financial contributions, and economic aid. Chapter Fourteen summarizes the situation after 1994, examining the implementation of Africa's demands regarding the seabed, resource exploitation, economic effects, and democratic machinery.

Schlüsselwörter (Keywords)

The key concepts and terms explored in this thesis include the principle of Common Heritage of Mankind, the New Law of the Sea, African perspectives on international law, the development of the Law of the Sea, the seabed and its resources, the historical evolution of the High Seas, the UNCLOS III, and international governance of the oceans.

• Universidad: University of Dar es Salaam (Faculty of Law)
• Curso: Law of the Sea
• Calificación: B+
• Autor: LL.M. Timo Knaebe (Autor)
• Año de publicación: 2006
• Páginas: 71
• No. de catálogo: V59320
• ISBN (Ebook): 9783638532983
• ISBN (Libro): 9783638694254
• Idioma: Inglés
• Etiqueta: African, Nasila, Rembe’s