Common Heritage of Mankind Principle
COMMON HERITAGE OF MANKIND PRINCIPLE
The Common Heritage of Mankind Principle (CHP) as it was presented to the United Nations General Assembly in various declarations and treaties, and as it is understood in the early-twenty-first century, affirms that the natural resources of the deep seabed and of outer space are held in common by all nations, and should be distributed equitably for the benefit of all humankind. Specifically the CHP of the 1979 Treaty Governing the Activities of States on the Moon and Other Celestial Bodies (The Moon Treaty), refers to: the equitable sharing of outer space resources; the nonappropriation of in-place resources particularly with regard to outer space mining activities; and the institution of an international regime to supervise commercial activities in space.
The CHP was presented with the understanding that it was crucial to plan for future exploration and uses of these important regions in order to insure not only an equitable distribution of their natural resources, but to prevent conflicts among nations as have occurred during earlier eras of exploration. Proponents of the CHP believe the principle confers on a region the designation of domino util or beneficial domain that should be legally defined as res communis humanitatis, a common heritage that is not owned by any nation, but from which all nations may garner profits and benefits.
Notions designating global resources as the common property of humankind (res communis) are not new, particularly in relation to the oceans, but date back more than 400 years. During the great age of discovery in the fifteenth century, Spain and Portugal claimed sovereignty over the high seas in accordance with the Papal Bull of 1493. This Bull established the border between Portuguese and Spanish waters "by a meridian line running 100 leagues west of the Azores, through both poles." In the late 1500s, however, the Protestant, seafaring nations of England and Holland challenged these claims of exclusive sovereignty over the oceans. Elizabeth I, in 1577, specifically dismissed Spanish claims of sovereignty over the high seas by "declaring that the sea, like the air, was common to all mankind and that no nation could have title to it" (Schachter 1959, p.
10). This began the establishment of the principle of freedom of the seas, or open access and nonappropriation in maritime law, which later was seen as a positive-sum game that encourages the usage and development of ocean resources as well as international trade for the common interest of nations (DeSaussure 1989, p. 29).
The International Geophysical Year (IGY) was a main motivating factor behind the development of contemporary legal notions concerning open access and common property as applied to new territories such as Antarctica, the deep seabed, and outer space. The international scientific investigations conducted during 1957 and 1958 were enormously successful, and created a new paradigm for international prestige through cooperation in quality scientific research. In fact, the collaborations forged during the IGY fostered the formation of a number of new international committees and agreements including the 1958 United Nations General Assembly Conference in Geneva on the Law of the Sea, which reaffirmed the freedom of the high seas and began negotiations concerning the natural resources of the continental shelf and deep seabed; the 1959 Antarctic Treaty; the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS); and ultimately the 1967 Outer Space Treaty containing the Common Benefit Principle (a modified res communis), which mandates that space exploration and the utilization of its resources be "for the benefit and in the interests of all countries."
The Law of the Sea and the Moon Treaty
During the late 1960s, the development of new technologies capable of taking commercial advantage of natural resources in the deep seabed and outer space, rendered the common benefit and nonappropriation clauses of earlier treaties obsolete. Ambassador Arvid Pardo of Malta introduced to the United Nations in 1967 a declaration related to the peaceful uses of the seabed and ocean floor that referred to these areas as a common heritage of humankind (Gorove 1972). According to Pardo, the CHP would establish "an administrative process whereby benefits derived from the resources of the [ocean] would be used for the common advantage of all peoples without regard to conditions of poverty or of wealth"; require supplementary programs of environmental protection to insure that the ocean's resources would be "passed on to succeeding generations"; and imply that the ocean and its resources "will be used exclusively for peaceful purposes" (Christol 1976, p.
44.) This declaration was accepted by the United Nations General Assembly without major criticism, and work began on the Declaration of Principles Governing the Sea-bed, the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction, which was presented to the General Assembly in 1970.
The opening of outer space territories and resources to the possibility of commercial ventures also raised new questions with regard to the activities of states and private entities in outer space. The Common Benefit Principle of the 1967 Outer Space Treaty in combination with its nonappropriation clause in Article 2 left open certain questions concerning sovereignty and property rights in relation to permanent space stations, lunar stations, and astral and lunar mineral resources. The CHP was offered as a complementary principle that would fill these legal gaps by defining the nature and use status of outer space and its resources; clarifying the rights and obligations of states and private entities in relation to these resources; and providing regulatory guidelines that would reduce the monetary risks of commercial space ventures. In 1972 the United States made a formal presentation to the COPUOS committee working on the Moon Treaty draft advocating inclusion of the CHP into the treaty text.
Implications for Science and Technology
The possible implications of the CHP for advancement of science and technology can be found in the debate between First and Third World nations as to the effects the implementation of this principle might have on the commercial development of space resources and the technologies that access them.
As committee work on the Moon Treaty continued, controversy grew in the United States concerning the CHP and its implications for the development, use, and allocation of outer space resources. There was considerable debate on both the definition of what the equitable sharing of resources meant under the CHP, and whether or not that sharing included access to space technology. In particular, a swarm of small but powerful U.S. space interests, especially the L-5 Society, began to publicly protest against the treaty, and managed to challenge the original U.S. position in several important areas.
Consequently U.S. representatives began arguing that the implementation of the CHP, with its mandate for profit sharing through an international regime, would be a disincentive to capital investment by private enterprise in the development of space resources and technologies. In addition, the principle's affirmation of equitable sharing and open access to space resources and technologies would bring about static inefficiency in the development of these resources, resulting in fewer benefits being produced for all concerned. Finally the equitable sharing of space technologies would be a threat to national security, both undermining the economic base of the United States and supplying potentially unstable nations with technology that had possible dual-use military applications.
Third World nations argued that the CHP did not constitute a disincentive to space resource development because its provisions were designed to grant positive rights that would allow humankind to exploit the benefits of space resources for the first time (Cocca 1973). This was a clear improvement to the 1967 Outer Space Treaty that specifically excluded the possibility of appropriating these resources. In addition, the CHP authorizes an equitable, not an equal, sharing of profits, and contains a compromise clause that balances the distribution of benefits by taking into consideration both the needs of Third World countries, and the efforts put forth by the nations or entities developing these specific resources.
Third World nations also argued that the international regime, rather than obstructing the development of space resources, actually furnishes a system capable of facilitating cooperative space ventures between nations for the accessing of space resources. Moreover the mitigation of Third World underdevelopment and external dependency on the First World through the equitable sharing of outer space resources would in reality further international cooperation and reap greater economic benefits for all nations. In fact, economic research studies have recommended that "for the sake of American commercial competitiveness in space," the United States should maintain lenient policies in relation to international technology transfers and encourage the cooperative exchange of information among scientists from all nations as a means of accelerating technological innovation (Corson 1982, pp. 59–61).
Status and Assessment
The Moon Treaty, with its common heritage language, spent seven years in the COPUOS working committee before it was finally passed by consensus and sent to the UN General Assembly in 1979 for a vote, where it was adopted by all 152 member nations. However the Moon Treaty was subsequently ratified by only thirteen nations, and while it is technically in force in 2004, the lack of support by First World, spacefaring nations has undermined the treaty's inherent authority, and ultimately created a large and growing gap between the uses of space resources and technologies and the adequacy of the laws regulating them.
In the absence of an accepted system of international space law, nations have been turning to the formation of their own domestic law to furnish at least some legal guidance and security for the conduct of space activities (Goldman 1988, p. 85). Domestic space law, however, generates even more complex issues of compliance, particularly given the international nature of outer space and space activities. Questions regarding whose law will apply for joint space ventures such as the international space station, or in areas of liability for space accidents occurring between states, will be extremely troublesome to answer.
Yet the compromises that occurred during the laborious process of consensus in developing the Moon Treaty and the CHP were made to "assure developed and developing nations the opportunity to benefit from space activities" taking place within a commonly held region beyond national territorial boundaries (Jasentuliyana 1984, p. 4). The Moon Treaty offered an indispensable legal framework for maintaining international stability and clarifying the expectations of the international community, thereby reducing the potential for conflict, creating a safer investment climate for both government and private entities, and furnishing an organizational mechanism for cooperative commercial ventures in outer space (Jasentuliyana 1980, pp. 6–7; Goldman 1985, p. 85).
Consequently First World suspicions regarding the CHP and its mandate for the equitable sharing of space resources and technologies, along with the belief that open access, and/or cooperative ventures with less qualified Third World nations would lead to the inefficient development of these resources, ended an unprecedented era of international collaboration in scientific exploration, technological advancement, and the development of positive international law.
KIM ALAINE RATHMAN
Christol, Carl. (1976). "The Legal Heritage of Mankind: Capturing an Illusive Concept and Applying it to World Needs." In Proceedings of the XVIII Colloquium on the Law of Outer Space. Paris: International Institute for Space Law.
Cocca, Aldo A. (1973). "The Principle of the Common Heritage of All Mankind as Applied to Natural Resources form Outer Space and Celestial Bodies." In Proceedings of the XVIth Colloquium on the Law of Outer Space. Paris: International Institute for Space Law.
Corson, Dale. (1982). Scientific Communication and National Security. Panel on Scientific Communication and National Security. Committee on Science, Engineering, and Public Policy. Washington, DC: National Academy Press.
DeSaussure, Hamilton. (1989). "Maritime and Space Law, Comparisons and Contrasts: An Oceanic View of Space Transport." In Outer Space: Problems of Law and Policy, ed. Glenn Reynolds and Robert Merges. Boulder, CO: Westview Press.
Goldman, Nathan. (1985). "The Moon Treaty: Reflections on the Proposed Moon Treaty, Space Law, and the Future." In People in Pace: Policy Perspectives for a Star Wars Century, ed. James Katz. New Brunswick, NJ: Transaction Books.
Goldman, Nathan. (1987). "Transition of Confusion in the Law of Outer Space." In International Space Policy: Legal, Economic, and Strategic Options for the Twentieth Century and Beyond, ed. Daniel Papp and John McIntyre. New York: Quorum Books.
Goldman, Nathan. (1988). American Space Law, International and Domestic. Ames: Iowa State University Press.
Gorove, Stephen. (1972). "The Concept of the Common Heritage of Mankind: A Political, Moral or Legal Innovation?" San Diego Law Review 9: 390–403.
Jasentuliyana, Nandasiri. (1980). "A United Nations Perspective of the Moon Agreement." Paper presented at the Seminar on the United Nations Moon Treaty, Center for Strategic and International Studies, Georgetown University, Washington, DC, February 19.
Jasentuliyana, Nandasiri. (1984). "Conditions Essential for the Peaceful Uses of Outer Space: The Moon Treaty," Paper presented at the symposium cosponsored by the United Nations and the International Institute of Space Law, Peace Palace, The Hague, Netherlands, March 12–15.
Jasentuliyana, Nandasiri, ed. (1992). Space Law: Development and Scope. Westport, CT: Praeger.
McDougall, Walter A. (1985). ... The Heavens and the Earth: A Political History of the Space Age. New York: Basic Books.
Reynolds, Glenn, and Robert Merges, eds. (1989). Outer Space: Problems of Law and Policy. Boulder, CO: Westview Press.
Schachter, Oscar. (1959). "Who Owns the Universe?" In Space Law: A Symposium. Washington, DC: Government Printing Office. Space Law: A Symposium was prepared at the request of Honorable Lyndon B. Johnson, Chairman Special Committee on Space and Astronautics, U.S. Senate, 85th Congress, 2nd Session.
Vicas, Alex. (1980). "Efficiency, Equity and the Optimum Utilization of Outer Space as a Common Resource. Annals of Air and Space Law 5: 589–609.