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 THEIVM
Ttotutr
MARINE
MARTINUS ANDCOARAL
NJJHOFF The InternationalJournalof LAW
PU B L I S H E R s Marine and Coastal Law 27 (2012)733-742 briil.comlesru

The Common Heritage of Mankind

Michael W. Lodge*
Deputy to the Secretary-General and Legal.Counsel,
International Seabed Authority, Kingston, Jamaica

Abstract
One of the key features of the 1982 UN Convention on the Law of the Sea is its recognition
that the seabed and its resources beyond national jurisdiction are the common heritage of
mankind. Part XI of the Convention gives precise legal meaning to this term. The Interna-
tional Seabed Authority is responsible for implementing the common heritage principle. Since
the Authority was established in 1994, a comprehensive legal regime for the Area has been
established. Despite initial problems, the international machinery for the administration of
this regime is functioning well. The Authority has made good progress, on the basis of the
evolutionary approach set out in the 1994 Agreement, in elaborating a regulatory regime for
access to the resources of the Area. Much more work remains to be done, however; in particu-
lar, if the economic benefits of the common heritage are to be realized.

Keywords
common heritage of mankind; deep seabed mining; Part XI 1982 UN Convention on the Law
of the Sea

Introduction

The idea that one or more parts of the global commons should be considered
the "common heritage of mankind" was not new even in 1967, which is when
Ambassador Pardo of Malta made his famous proposal to the First Committee
of the General Assembly that the time had come to declare "the seabed and
the ocean floor a common heritage of mankind", not subject to national
appropriation and reserved exclusively for peaceful purposes, with their
resources to be used in the interests of mankind.'

* The views expressed in this paper are those of the author and do not necessarily reflect the
position of the International Seabed Authority.
' In the same year that Ambassador Pardo addressed the General Assembly, the World Peace
through Law Conference adopted a resolution (Resolution No. 15) calling on the United
Nations to declare the high seas the common heritage of mankind and issue a proclamation
declaring the non-fishery resources of the high seas and the seabed to be made subject to the
jurisdiction and control of the United Nations on behalf of mankind as a whole. This resolution
@ Koninklijke Brill NV, Leiden, 2012 DOI: 10. 1163/15718085-12341248
 MW Lodge /
734 The InternationaljournalofMarine and CoastalLaw 27 (2012) 733-742

Whilst this is often identified as the defining moment that was to lead to
the decision to convene the Third United Nations Conference on the Law of
the Sea (UNCLOS III), Ambassador Pardo was in many ways merely reflect-
ing the spirit of the times in an era where there was intense interest in the
materialization of common interests in common resources through global
regimes.2 Indeed, in broad terms, the idea of a common interest of mankind
can be identified in the development of international agreements across mul-
tiple sectors in the second half of the twentieth century, including human
rights, cultural heritage, labour, public health, telecommunications, outer
space, Antarctica and the environment. 3
Nevertheless, it was in the context of the 1982 United Nations Convention
on the Law of the Sea (the Convention; 1833 UNTS 397) that the common
heritage principle was to be stated explicitly. Today, thirty years after the adop-
tion of the Convention, it seems appropriate to reflect on the way in which
the common heritage principle has been implemented in practice, particularly
in relation to the mineral resources of the deep seabed.

What Is the Common Heritage Principle?

It is notoriously difficult to attach precise legal meaning to statements of broad

principle and the common heritage principle is no exception. Many different
views and legal interpretations have been assigned to precisely defining the
scope and content of the obligations and responsibilities that the phrase may
encompass and some writers have even speculated on the customary interna-
tional law status of the concept. As far as the law of the sea is concerned,
however, the common heritage principle finds its expression as a legal concept
exclusively in Part XI of the Convention, specifically in Articles 136 to 141.

was quoted by Ambassador Pardo in his presentation of the Maltese proposal to the First
Committee (A/C.1/PV 1515, 1 November 1967, para. 104).
2 R. Wolfrum, 'The Principle of the Common Heritage of Mankind' (1983) 43 ZeitschriftjAr

aus/andischesoffientliches Recht under Volkerrecht 312-337. For a discussion of the history of the
common heritage principle see H. Tuerk, 'The Principle of the Common Heritage of Man-
kind', Chapter 3 in Refctions on the ContemporaryLaw ofthe Sea (Martinus Nijhoff, Leiden,
2012); Satya N. Nandan, Michael Lodge and Shabtai Rosenne, The Development ofthe Regime
for Seabed Mining (International Seabed Authority, Kingston, Jamaica, 2002) 3-23.
3 A. Kiss, 'The Common Heritage of Mankind: Utopia or Reality' (1984-1985) 40 Int'l .
423-441.
4 The basic content of what would become the common heritage of mankind principle as
embodied in the Convention was largely contained in the operative paragraphs of the Declara-
tion of Principles Governing the Sea-bed and Ocean Floor and the Subsoil Thereof, beyond
the Limits of National Jurisdiction, adopted by the General Assembly on 17 December 1970
 MW Lodge /
The InternationalJournalofMarineand CoastalLaw 27 (2012) 733-742 735

Article 136 provides that the Area (defined elsewhere as the seabed beyond
national jurisdiction and the subsoil thereof) and its resources are the com-
mon heritage of mankind. This is regarded as such a fundamental principle
that Article 311(6) prohibits States Parties to the Convention from making
any amendments to the basic principle relating to the common heritage or
from becoming party to any agreement in derogation thereof.'
Articles 137, 140 and 141 elaborate upon Article 136 and in so doing bring
some degree of legal clarity to the concept of common heritage. Article 137(1)
provides that no State shall claim or exercise sovereignty or sovereign rights
over any part of the Area or its resources, nor shall any State or natural or
juridical person appropriate any part thereof. Article 137(2) vests all the rights
in the resources of the Area in mankind as a whole and provides that these
rights are to be exercised through the Authority, on behalf of mankind as a
whole.' Article 137(3) underlines the fact that no claim, acquisition or exer-
cise of rights with respect to minerals recovered from the seabed by any State
(not just States Parties to the Convention) or any natural or juridical person
shall be recognized other than in accordance with Part XI.
Article 140 provides that activities in the Area' (a term of art for deep sea-
bed mining) shall be carried out for the benefit of mankind as a whole, irre-
spective of the geographical location of States, whether coastal or landlocked,
and taking into particular consideration the interests and needs of developing
States and of people who have not yet attained full independence or other
self-governing status. To give effect to this aspiration, the Authority is tasked
with the development of a mechanism to provide for the equitable sharing, on
a non-discriminatory basis, of financial and other economic benefits derived
from deep seabed mining.
Article 141 provides that the Area shall be open to use exclusively for peace-
ful purposes by all States. Initially, the demilitarization of the seabed formed
one of the key elements of the Maltese initiative of 1967. At the behest of the

(Resolution 2749 (XXV) 17 December 1970). By and large, these principles were retained
throughout UNCLOS III, during which discussions focused mainly on the nature of the
international machinery to be established for the purposes of managing the common heritage.
I Wolfrum, op. cit., supra n. 3. Some States actually favoured declaring the common heritage
to be part of thejus cogens and in fact an informal proposal to this effect was made by Chile
(UN Doc. A/CONF.62, GP/9, 5 August 1980).
As a counterpoint to this, Article 157(1) emphasizes that the Authority is "the organization
through which States Parties shall organize and control activities in the Area", suggesting that
the participants with respect to the utilization of the common heritage are intended to be
States, and not mankind itself as a subject of international law (see Wolfrum, op. cit. supra
n. 3, at 319).
7 "Activities in the Area" is defined in Article 1(3) of the Convention as "all activities of explo-

ration for, and exploitation of, the resources of the Area."

 MW Lodge /
736 The InternationalJournalofMarineand CoastalLaw 27 (2012) 733-742

United States and the Soviet Union, however, the matter was referred to the
Disarmament Conference, which resulted in the Sea-Bed Arms Control Treaty
of 1971.' Whilst this treaty prohibits the use of specified weapons in a speci-
fied environment, Article 141 of the Convention, as read with Article 301, is
generally understood as prohibiting the use of the seabed for aggressive activ-
ities in the sense of Article 2 of the UN Charter rather than a complete prohi-
bition on all military activities.9

How Has the Common Heritage Principle Been Implemented in Practice?

The Convention took a long time to enter into force, although that did not
prevent a large number of States from applying some of its provisions imme-
diately, especially those allowing an extension of national jurisdiction. One of
the main obstacles to its timely entry into force was objection on the part of
most of the industrialized States to the deep seabed mining provisions con-
tained in Part XI. In large measure these objections stemmed from radically
different interpretations of the common heritage principle. o
As is well known, the problems with Part XI were resolved through infor-
mal consultations initiated by the Secretary-General of the United Nations
and resulted in the adoption in 1994 of the Implementation Agreement on
Part XI." The Agreement enabled the Convention to enter into force in
November 1994, which also marked the formal inauguration of the Interna-
tional Seabed Authority as an autonomous international organization.
The Authority is now in its eighteenth year of existence, although it did not
begin to function independently as an autonomous institution until 1997.
The first years of the Authority's existence were mainly devoted to resolving
the institutional issues necessary to ensure its independent functioning as an
autonomous organization. It is not necessary to touch on these issues here as

' Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of
Mass Destruction on the Sea-Bed and Ocean Floor and the Subsoil thereof. 955 United
Nations Treaty Series 115, entered into force 18 May 1972.
9 Wolfrum, op. cit. supra n. 3, at 320.
' See, for example, L.F.E. Goldie, 'A Note on Some Diverse Meanings of "The Common
Heritage of Mankind"' (1983) 10 Syracuse Journal of International Law and Commerce
69-112.
" Agreement relating to the Implementation of Part XI of the United Nations Convention on
the Law of the Sea of 10 December 1982 (33 ILM 1309 (1994)), annexed to General Assem-
bly Resolution A/48/263.
 M.W Lodge /
The InternationalJournalof Marineand CoastalLaw 27 (2012) 733-742 737

they have already been amply covered elsewhere. 2 What is important is to

evaluate the extent to which the Authority has succeeded in giving effect to
the principle of the common heritage of mankind.

Legal Status of the Area

The first major milestone in the work of the Authority was the conversion of
all the claims to exploration sites registered under the pioneer regime that had
applied pending entry into force of the Convention into legally binding con-
tracts of limited duration in accordance with the Convention. 3 This was done
through the adoption in July 2000 of regulations governing exploration for
polymetallic nodules, which also included standard clauses for contracts. The
significance of this act as far as the common heritage principle is concerned
cannot be overstated. It not only brought the pioneer regime to a definitive
end, but also brought all existing seabed-mining interests into the single legal
regime established by the Convention and the 1994 Agreement.
Since the adoption of the first set of exploration regulations, the Council of
the Authority has also adopted regulations governing prospecting and explo-
ration for polymetallic sulphides. Regulations relating to cobalt-rich crusts
have also been elaborated and it is anticipated that they will be adopted in
2012. The situation now is that the Authority has issued a total of eleven con-
tracts for exploration in the international seabed Area. 4 These contracts cover
a total area of 770,000 square kilometres of the deep seabed. The licensed
entities include States (Republic of Korea and India), state enterprises (Yuzh-
morgeologiya of the Russian Federation, China Ocean Mineral Resources
R&D Association (COMRA) of China, Deep Ocean Resources Development
Co., Ltd (DORD) of Japan, Interoceanmetal Joint Organization, Ifremer of
France and Federal Institute for Geosciences and Natural Resources (BGR) of
Germany) and more recently private sector entities (Nauru Ocean Resources
Inc. and Tonga Offshore Mining Ltd.). As of June 2012, five further applica-
tions for exploration contracts have been submitted and are under consider-
ation by the Authority.

12 M.C. Wood, 'The International Seabed Authority: The First Four Years' (1999) 3 Max
Planck Yearbook of UnitedNations Law 173-241.
" A special expedited procedure for this purpose was contained in paragraph 6(a)(ii) of section I
of the Annex to the 1994 Agreement. Full details are set out in document ISBA/4/A/I /Rev.2.
14 At the time of writing, 11 contracts had been issued. One further application (by the Rus-
sian Federation) has been approved, but the contract had not yet been signed.
 MW Lodge /
738 The InternationalJournalofMarine and CoastalLaw 27 (2012) 733-742

Contrary to initial fears, there are no current claims to seabed mining sites
outside the Convention regime. All pre-existing claims have been brought
within the single regime created by the Convention and the 1994 Agreement
and, furthermore, a number of fresh claims have been made by new investors
under that single regime, including for new resources that were not even con-
sidered during UNCLOS III. This not only underlines the near-universal
acceptance of the Convention regime, but also indicates a degree of confi-
dence in the system as it has been developed through the Authority. To this
extent, the implementation of the elements of the common heritage principle
that are reflected in Articles 136 and 137 of the Convention must be consid-
ered an unqualified success.

Benefit of Mankind

The common heritage principle also includes a number of closely related ele-
ments, which may loosely be termed 'the benefit of mankind'. These include
equal participation, rational use of resources, environmental stewardship and
equitable sharing of financial and economic benefits. In relation to these, the
achievements of the Authority may be considered more critically.
It is hard to avoid the conclusion that developing countries have precious
little to show for more than fifteen years of effort. No commercial mining has
yet taken place and no financial benefits have yet accrued from the Area. It is
also worth recalling that, in the process of achieving the 1994 Agreement,
major concessions were made in order to provide an incentive for industrial-
ized countries to accept the Convention. These concessions included, for
example, abandonment of the fixed fee of $1 million per year for mining con-
tracts provided for in Annex III of the Convention," as well as a reduction of
50 per cent in the fees payable by applicants for exploration contracts.' 6
On the positive side of the equation, the approval of exploration contracts
in 2011 for private sector entities sponsored by developing States appears, at
first blush, to provide an avenue for equal participation by these States in deep
seabed mining that is fully in accordance with the principles set out in the
1994 Agreement. The contracts in question were awarded to Nauru Ocean
Resources Inc., a commercial entity sponsored by Nauru, and Tonga Offshore
Mining Ltd., a company sponsored by Tonga. Both contracts are for explora-
tion in reserved areas, which are those areas designated by contractors

'5Convention, Annex III, Article 13(3).

" 1994 Agreement, Annex, section 8, paragraph 3.
 M.W Lodge /
The InternationalJournal ofMarine and CoastalLaw 27 (2012) 733-742 739

sponsored by developed States and held in a 'site bank' by the Authority for
future use by the Enterprise or by developing States, either by themselves or
in a joint venture with the Enterprise.17
It could be said that this form of commercial venture represents a rational
use of areas of the seabed that have been specifically set aside for this purpose.
On the other hand, during the review of the applications in the Council of the
Authority, a number of concerns were expressed as to the real benefits to the
sponsoring States, and to the regime as a whole, of this type of commercial
venture.18 At this stage, the best conclusion may be that it is too early to say
whether this type of arrangement provides a viable precedent for the future
participation of developing countries in deep seabed mining. Much will
depend on whether these ventures are successful in producing long-term eco-
nomic benefits for the sponsoring States and for the Authority.
As far as financial benefits to the Authority and its member States are con-
cerned, the major problem is that the Authority has so far not developed any
regulatory system for exploitation. The Convention itself contained a detailed,
highly prescriptive model covering the financial terms for exploitation
(although it is interesting that few of the other aspects would need to be regu-
lated and managed during the exploitation phase), but these were eliminated
by the 1994 Agreement, as it was realized that they were outdated, impractical
and largely unworkable. Instead, the 1994 Agreement contains a set of general
principles to guide the financial terms of seabed mining. These require, for
example, that the system of payments to the Authority should be fair both to
contractors and to the Authority and that the rates of payment shall be within
the range of those prevailing in respect of land-based mining of the same or
similar minerals in order to avoid giving seabed miners a competitive advan-
tage or disadvantage. 9 The difficulty the Authority faces is that no serious

1 Each application for an exploration contract for polymetallic nodules must contain two
areas of equal estimated commercial value. One of these areas is awarded to the contractor; the
other is 'reserved' for use by the Enterprise or by a developing State member of the Authority
or a natural or juridical person sponsored by a developing State. The idea behind this system
is that developing countries are thereby relieved of the burden of carrying out costly and tech-
nologically challenging survey and prospecting work. Convention, Annex III, Articles 8 and 9;
1994 Agreement, Annex, section 2, paragraph 5.
" During the discussion in the Council, States expressed different views as to what is meant
by the term "effective control" in Article 153, paragraph 2(b) of the Convention in the context
of a multinational corporation establishing a subsidiary company in a developing country.
Whilst some States, including Germany and Netherlands, expressed the view that "control"
must refer to economic control as well as regulatory control, others considered that regulatory
control, as demonstrated by a certificate of sponsorship from the developing country con-
cerned, was sufficient.
" 1994 Agreement, Annex, section 8.
 MW Lodge /
740 The InternationalJournalofMarine and CoastalLaw 27 (2012) 733-742

commercial miner is likely to be willing to make the substantial investments

required unless and until they understand the financial risks involved, which
includes the fiscal regime. It is important, therefore, that the Authority begins
to develop an exploitation code at the earliest opportunity. A proposal to this
effect is before the Council in 2012 and it is to be hoped that the Council will
act decisively and allocate time and resources to the timely development of a
comprehensive code for exploitation.
Whilst attention will inevitably focus on the financial and economic ben-
efits of seabed mining, 20 it must not be overlooked that sharing of increased
scientific knowledge of the deep seabed, as well as better environmental stew-
ardship, are also benefits accruing to mankind as a whole.2 1 In these areas, the
Authority has achieved a great deal-and certainly more than was originally
anticipated in 1994. These achievements include a series of international
workshops on scientific matters, as well as technical studies on various issues.
The Authority has also sponsored a number of major international scientific
initiatives, such as a geological model of the Clarion-Clipperton Zone22 and
the Kaplan Project to study species range and biodiversity in the same region.
Projects such as these, drawing upon many of the best scientists in the world
and with the full participation of scientists from developing countries, repre-
sent hugely important scientific research that will contribute to a much better
understanding of the deep ocean environment for the benefit of future
generations. The same scientific research has also formed the basis for the
formulation of a comprehensive environmental management plan for the
Clarion-Clipperton Zone which includes a proposal to establish a representa-
tive network of areas of "particular environmental interest" as one of a suite of
measures designed to ensure effective protection for the marine environment
from harmful effects arising from deep seabed mining.

2 The Convention appears to make a clear distinction between financial benefits on the one
hand and economic benefits on the other hand. Financial benefits would presumably include
such things as royalties on minerals and fees. Economic benefits could be wider and may
include, for example, participation in production-sharing systems, but also the general benefit
to mankind of greater availability of key strategic metals such as copper, cobalt, nickel, man-
ganese and rare earth elements, as well as generating employment.
21 Kiss, op. cit. supra n. 4, at 438.
22The Clarion-Clipperton Zone is an area of the seabed of the Pacific Ocean between Baja

California and Hawaii approximately 4.5 million square kilometres in size and containing
abundant deposits of polymetallic nodules. A Geological Model of the Polynerallic Nodule
Deposits in the Clarion-ClippertonFractureZone, ISA Technical Study No. 6, (ISA, Kingston,
Jamaica, 2010).
23 M.W Lodge, 'Current Legal Developments: International Seabed Authority' (2011) 26
IJMCL 463-480.
 M.W Lodge /
The InternationalJournalofMarine and CoastalLaw 27 (2012) 733-742 741

Future of the Common Heritage Principle

In recent years, the nature and extent of the common heritage principle has
once again become a subject for discussion in the context of the management
of marine biodiversity, and specifically marine genetic resources, in areas
beyond national jurisdiction. As these discussions have progressed, clear dif-
ferences in the positions taken by States have emerged. Whilst it is generally
agreed that the Convention provides the overarching legal framework for con-
servation and management of marine resources, views are deeply divided on
the adequacy of that framework and the means of implementation. On the
one hand, some States argue that marine genetic resources should be consid-
ered part of the common heritage of mankind, in the same way as the mineral
resources of the deep seabed, even though the regime in Part XI of the Con-
vention specifically excludes from its ambit anything other than mineral
resources. That is, marine genetic resources should not be subject to appro-
priation, but should be administered through an international regime which
also provides for the equitable sharing of financial and other economic bene-
fits from such resources. Others, such as the United States, argue that marine
genetic resources are essentially open-access resources, like high seas fisheries,
and that the list of high seas freedoms set out in Article 87 of the Convention
is not intended to be exhaustive.
In many ways these differences echo the discussions of the 1960s in relation
to the deep seabed and are likely to be equally difficult to resolve. As Tuerk
points out, as far as benefit-sharing is concerned, developing countries should
probably not set their expectations too high, given the experience with the
deep seabed regime. An additional consideration is that, unlike minerals,
genetic resources themselves are not valuable-rather it is the product of
extensive research and development that may be valuable.24 In this regard,
Beurier, amongst others, has suggested that the Authority may have a role to
play in ensuring that marine scientific research for genetic resources is carried
out for the benefit of mankind as a whole in accordance with Article 143 of
the Convention, and so as to ensure effective protection of the marine envi-
ronment, including rate and fragile ecosystems (Articles 192 and 194).25

24 Tuerk, op. cit. supra n. 3, at 48.

25 Jean-Pierre Beurier and Gwenadle Proutikre-Maulion, 'Should the international regime on
access and benefit-sharing of high seas resources be redefined?' (2009) 35(1-2) Ocianis 135-154.
 MW Lodge /
742 The InternationalJournalofMarine and CoastalLaw 27 (2012) 733-742

Conclusions

As far as the implementation of the common heritage principle by the Author-

ity is concerned, it is suggested that there is cause for modest optimism. The
international community has succeeded in establishing a comprehensive legal
regime for the Area, under which the Area is reserved exclusively for peaceful
purposes, and which is linked to a coherent management regime through
international machinery (the Authority) established for that purpose. Despite
initial problems, and an overdue gestation, the international machinery is
functioning well. The legal regime has been almost universally accepted by
States and there can no longer be any doubt as to the validity of claims made
to areas of the seabed outside the single legal regime established by the Con-
vention and the 1994 Agreement. The Authority has made good progress, on
the basis of the evolutionary approach set out in the 1994 Agreement, in
elaborating a regulatory regime for access to the resources of the Area that
emphasizes the precautionary approach and the need for ecosystem-based
management of the resources of the Area. In this regard, the prolonged delay
in the commercialization of seabed mining has had an inadvertent but never-
theless beneficial effect.
Much more work remains to be done. In particular, if the economic bene-
fits of the common heritage are to be realized, it is essential that the Authority
move expeditiously to begin to develop a coherent and commercially viable
code for exploitation of marine mineral resources. The regime must be viable,
in the sense that it must offer appropriate commercial incentives to investors
to begin to exploit the mineral resources of the Area, but it must also be
fair and equitable and in particular it should not facilitate those who have to
take more.