The concept of common heritage of humankind – A legal framework for the
sustainable development of the deep seabed?
Master Thesis Charlotte Fabricius Student number 12336343 Email: charlotte.fabricius@posteo.de University of Amsterdam 24 July 2020
Amsterdam Law School
Master Public International Law (International and European Law) Supervisor: dr. mr. P.A. Hildering
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Abstract
The mineral resources in the deep seabed are known to contain valuable metals like cobalt, nickel, and platinum. These are widely used as raw materials for modern technologies, such as solar panels, mobile phones, and wind turbines. The very high demand of the industry for these raw materials and recent scientific and technological progress have made the exploitation of deep seabed minerals a realistic possibility in the near future. This has resulted in a revived interest in the regulation of mining operations in the deep seabed by states, private actors, and researchers.
The use of and access to mineral resources of the deep seabed beyond national jurisdiction (the Area) is governed by the concept of common heritage of humankind (CH). It was introduced into the legal debate by states more than 50 years ago against the backdrop of the Cold War and decolonialisation. Regarding the Area and its mineral resources, the CH established an international management system under Part XI UNCLOS. This includes, among other aspects, the prohibition of appropriation of the Area and its resources, an obligation of non-harmful use, and the obligation to equitably share the benefits derived from the use of the deep seabed. The International Seabed Authority (ISA) was set up to regulate the activities in the Area.
Since knowledge and concern about environmental issues has increased substantially after the introduction of the CH, the question arises to what extent it can be applied to the current situation. Contemporary debates on the regulation of resources cannot be comprehensively held without referring to the concept of sustainable development. Does the concept of common heritage of humankind have the potential to contribute to using the deep seabed in alignment with sustainable development?
The thesis provides a descriptive analysis of the concept of common heritage of humankind in its application to the deep seabed. The concept of sustainable development is introduced as global policy objective. Linking the two concepts, the thesis explores important elements of sustainable development included in the conceptualisation of the common heritage of humankind. Going beyond the draft exploitation regulations of the ISA, the thesis examines general conditions for a sustainable development of the deep seabed. Knowledge gaps especially regarding economic and environmental effects complicate the regulation of exploitation activities in the Area. General considerations of the circumstances under which exploitation activities could be allowed are needed for the CH to contribute to a sustainable development of the oceans. This includes questioning deep-seabed mining altogether.
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Table of Contents
Abstract ... I Table of Contents ... II List of Abbreviations ... III
I. Introduction ... 1
II. The concept of common heritage of humankind and the deep seabed ... 3
1. Literal interpretation of Article 136 UNCLOS as starting point ... 3
2. The legal status of the common heritage of humankind in relation to the deep seabed .. 5
3. Five defining aspects of the concept of common heritage of humankind ... 6
a) Preservation for future generations ... 7
b) Non-harmful use of the Area and its resources ... 8
c) International management of the Area ... 10
d) Equitable benefit sharing ... 11
e) The prohibition of appropriation ... 12
f) The CH as regulating concept for the Area ... 13
III. The concept of sustainable development ... 14
1. Key elements of sustainable development ... 15
a) The three pillars of sustainable development ... 15
b) “Meet the need of the present”... ... 16
c) “without compromising the ability of future generations to meet their own needs” ...17
d) Integrating the different dimensions ... 17
2. Legal status of the concept of sustainable development ... 18
3. Sustainable development as global policy objective ... 19
IV. Linking the concept of common heritage of humankind with the concept of sustainable development ... 19
1. Elements of sustainable development in the concept of common heritage of humankind ...20
a) Preservation for future generations ... 20
b) Non-harmful use of the Area and its resources ... 21
c) Benefit-sharing ... 21
d) International management and non-appropriation ... 22
e) Interim findings ... 23
2. General considerations regarding the sustainable development of the deep seabed ... 24
a) Ecological uncertainties ... 25
III c) Economic considerations ... 27 d) Interim findings ... 28 3. Further considerations ... 29 V. Conclusion ... 31 Bibliography ... 32 List of Abbreviations
ABNJ Areas beyond national jurisdiction
CH Common heritage of humankind
DSM Deep-seabed mining
EEZ Exclusive Economic Zone
EIA Environmental Impact Assessment
EU European Union
ICJ International Court of Justice
ILA International Law Association
ISA International Seabed Authority
ITLOS International Tribunal for the Law of the Sea
IUCN International Union for Conservation of Nature and Natural Resources
MOON Moon Agreement
OECD Organisation for Economic Co-operation and Development
OST Outer Space Treaty
Part XI Part XI of the United Nations Convention on the Law of the Sea
SDC Seabed Disputes Chamber
SDG Sustainable Development Goal
UNCLOS United Nations Convention on the Law of the Sea
UN United Nations
UNFCCC United Nations Framework Convention on Climate Change
UNGA United Nations General Assembly
VCLT Vienna Convention of the Law of Treaties
WTO World Trade Organisation
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I. Introduction
The development of advanced technology and so-called green technology products causes a constantly growing demand for metals like cobalt, platinum, or tellurium.1 Products like mobile phones, photovoltaic solar cells, and devices to store solar energy contain these rare metals.2 New ways are constantly sought to meet the demand for raw-materials. Resources that have attracted considerable interest in that regard are mineral resources of the deep seabed.3 Due to the latest scientific development their use is being frequently debated again.4 Technological advancements have made their exploitation a realistic possibility and the first seabed mining explorations have been carried out within the Exclusive Economic Zone (EEZ)5 of individual states.6 In contrast to resources within the EEZ of states, mineral resources in the deep seabed beyond national jurisdiction7 cannot simply be exploited by individual states. Their use was
placed under a specific legal regime based on the concept of common heritage of humankind (CH).
With the growing state interest in maritime mineral resources in the 1960s evolved the fear of a race for the so far unregulated deep seabed and its resources. Developing states were concerned to be put at a disadvantage by developed states that had the financial and technological means for deep-seabed mining.8 This situation led to the declaration of the Area and its resources to be common heritage of mankind by the UN General Assembly.9 To use a more contemporary and integrating but equally suitable term, ‘mankind’ is replaced in this thesis by ‘humankind’.10 The common heritage of humankind later entered the 1982
Convention of the Law of the Sea. The CH also influenced the regulation of Outer Space and
1 cf Hein, 2012, p 1; Petersen et al, 2016, p 175. 2 Hein et al, 2013, p 2, cf Table 1.
3 Resources are defined as „material from nature having potential economic value or providing for the
sustenance of life“. (Garner, 2004, p 1056).
4 cf ISA, 2013, paras 1-3.
5 The EEZ designates an area within the sea that is adjacent to the territorial waters of a state. In that zone the
respective state has the sovereign rights for the purpose of exploring and exploiting and managing of the natural resources. cf Articles 55, 56 UNCLOS.
6 Japan accessed a mineral deposit at 1,600 m below sea level in August 2017, cf
https://www.japantimes.co.jp/news/2017/09/26/national/japan-successfully-undertakes-large-scale-deep-sea-mineral-extraction/#.XsuF7MBCTIV; https://www.theguardian.com/environment/2018/apr/18/deep-sea-mining-possibly-as-damaging-as-land-mining-lawyers-say; The project Solwara I within the EEZ of Papua New Guinea failed in 2019 when the Canadian mining company Nautilus which operated the project encountered mayor financial problems, cf https://www.theguardian.com/world/2019/sep/16/collapse-of-png-deep-sea-mining-venture-sparks-calls-for-moratorium.
7 Defined as ‘the Area‘ by Article 1 (1) UNCLOS. 8 Scovazzi, 2020, p 215.
9 Declaration of Principles Governing the Sea-Bed and the Ocean Floor, cf UN, 1970.
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was introduced into the Moon Treaty.11 However, only under UNCLOS has it been further outlined and developed.12
The common heritage of humankind was introduced more than 50 years ago against the backdrop of an international debate very different from today’s. Contemporary discourses about resources and the threat of overexploitation in the light of continuous population growth are mostly placed in the framework of sustainable development.13 That notion emerged about 40 years ago, when states realised that biological resources were not infinite. Neither is the capacity of earth to provide those resources and to fulfil the needs of all people.
Since the knowledge and concern about environmental issues has increased substantially after the introduction of the CH, the question arises to what extent it can be applied to the current situation. Does the concept of common heritage of humankind have the potential to contribute to using the deep seabed in alignment with sustainable development?
From this overall question, three sub-questions are derived that are answered throughout the chapters: What is the content of concept of common heritage of humankind in relation to the deep seabed? What does the concept of sustainable development entail? Which results can be deduced from the link between the concept of common heritage of humankind and the concept of sustainable development?
Chapter II offers a descriptive analysis of the concept of common heritage of humankind. A special focus of the analysis is on the deep seabed. The chapter begins with an interpretation of Article 136 UNCLOS. It continues with an assessment of the legal status of the CH in relation to the deep seabed. It closes by outlining key elements contained in the concept of the common heritage of humankind. Chapter III describes the concept of sustainable development as framework for environmental discourses. It analyses its main elements and defines sustainable development as a global objective. On that basis, chapter IV explores the link between the concept of common heritage of humankind and the concept of sustainable development. It applies the results to derive consequences for a sustainable development in the deep seabed. The thesis deduces further considerations how the concept of common heritage of humankind can align sustainable development with activities in the deep seabed. Chapter V summarises the findings of the preceding parts and concludes the thesis.
11 UN, 1962, Article 1; Article 1 OST; Articles 4(1), 5, 11(1) MOON. 12 cf Noyes, 2011, p 461 f.
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II. The concept of common heritage of humankind and the deep seabed
The concept of common heritage of humankind is analysed from different angles to understand its implications for the governance of deep-sea minerals in the 21st Century. The starting point is the interpretation of Article 136 UNCLOS, which codifies the common heritage of humankind in regard to the Area. The provision is interpreted according to the rules of treaty interpretation laid down in the VCLT. The second sub-chapter briefly points out the legal status of the CH. The last sub-chapter outlines the content of CH under UNCLOS. It explains its normative roots and sums up the most important aspects of the concept of common heritage of humankind regarding the deep seabed.
1. Literal interpretation of Article 136 UNCLOS as starting point
According to the basic rules of treaty interpretation as codified by Article 31 VCLT, treaty provisions are to be interpreted in good faith considering the ordinary meaning, context, and object and purpose of the treaty.14
Article 136
Common heritage of mankind
The Area and its resources are the common heritage of mankind.
Starting from the ordinary meaning of Article 136 UNCLOS, the terms ‘the Area and its resources’ delimit the spatial and contextual scope. The Area is defined by Article 1 (1) UNCLOS as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. The resources of the Area are “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”.15 The scope of the
common heritage of humankind contains the seabed and its mineral resources in areas beyond national jurisdiction. The delimitation of the Area depends on the actual expansion of the territorial sea, EEZ, or continental shelf of the different coastal states and cannot be
14 Shaw, 2018, p 707. 15 Article 133 (a) UNCLOS.
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generalised.16 Resources17 of economic interest that have been identified in the Area are polymetallic nodules18, ferromanganese crust19 and seafloor massive sulphides20.
The expression ‘common’ denotes something that is shared.21 The term ‘heritage’ designates
valued objects that can be passed on from one generation to the next.22 It can describe that something is being transmitted by a predecessor or a rule or tradition. Thus, the temporal scope of the phrase includes the present but also the future. Moreover, the meaning of inheritance implies that possession is passed on but also duties and obligations that are connected with it.23 The term ‘mankind’ describes the totality of human beings, encompassing every human in the world.24
However, terms and their meaning evolve over time. The ICJ has observed that especially generic terms used within a treaty or convention with an indeterminate validity period, have to be interpreted considering the evolving meaning.25 Thus, the term humankind instead of
mankind can be appropriately used. The connection of ‘common heritage’ and of ‘humankind’ signifies that the thing that is passed on belongs to humanity and needs to be shared collectively. In other words, Article 136 stipulates that the Area and its resources belong to the totality of current as well as future human beings. This implies rights as well as responsibilities and obligations which are shared by the holder of rights, all human beings together.
The context of a treaty can be established by looking at the whole treaty, including its preamble and annexes and the position of the provision in question.26 The preamble of UNCLOS refers to the resolution of the General Assembly27 that declared the seabed beyond national jurisdiction and its resources to be the common heritage of humankind.28 It stipulates the aim of giving meaning to this principle within the treaty. Article 136 UNCLOS is placed at the head
16 cf Tanaka, 2015, p 217, Tuerk, 2015, p 278 f.
17 Resources are defined as „material from nature having potential economic value or providing for the
sustenance of life“ (Garner, 2004, p 1056).
18 Polymetallic nodules can be found throughout the ocean floor. They mainly consist of manganese and iron
hydroxides and contain nickel, copper, cobalt. They also contain traces of rare metals and rare earths. cf Cuyvers et al, 2018, pp 7, 12.
19 Ferromanganese crust occurs throughout the ocean floor. It is comprised of iron and manganese hydroxides,
cobalt, copper and nickel, traces of rare earth elements are also contained. cf Cuyvers et al, 2018, pp 9, 12.
20 Seafloor massive Sulphides are formed at boundaries of active plates. They contain minerals like copper, zinc,
lead, arsenic, cobalt, silver, and gold. cf Cuyvers et al, 2018 pp 10, 12.
21 Garner, 2004, p 178.
22 Stevenson, 2010, p 820; cf Joyner, 1986, p 195.
23 For a definition of the legal concept of heritage in the succession process, see Hagino, 2016, p 12. 24 Stevenson, 2010, p 854.
25 cf Navigational Rights, para 66; cf Dörr/Schmalenbach, 2017, para 25. 26 cf Dörr/Schmalenbach, 2017, para45.
27 UN, 1970.
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of the section containing the principles regulating the Area. This position and the special reference to the same principle in the preamble, highlight the importance of Article 136 UNCLOS as the fundamental principle of Part XI. One of the main objectives of UNCLOS is the creation of one legal order of the sea and oceans. In line with the stipulation in the preamble, Article 136 UNCLOS and the following provisions contribute to the establishment of a legal framework for the Area.29
Summing up, Article 136 UNCLOS is positioned at the beginning of Part XI and Section 2, setting out the principles governing the Area. Its importance as fundamental provision for the regulation of the deep seabed is underlined by Article 311 (6) which prohibits any amendment to the principle of common heritage of humankind as outlined in Article 136 UNCLOS. Continuing from the wording of Article 136, the following sub-chapters analyse in more detail the system that is built upon this basic provision. After considering the legal status of the CH, the third sub-chapter examines the different elements that are contained within the CH. In that context subsequent practice and agreements are important, especially the 1994 Implementing Agreement and the regulations and guidelines issued by the ISA.
2. The legal status of the common heritage of humankind in relation to the deep seabed
The common heritage of humankind is used as a regulatory principle for shared resources. 30As a general regulatory principle, it is not uniformly defined. 31 The question is what the common heritage of humankind should conceptualise and what legal status it has.32
The content and, consequently, the legal status of the common heritage of humankind depend on the concrete context of its application. Context means which resource is regulated.
This thesis considers the common heritage of humankind applied to the deep seabed. As such it has been codified in Article 136 UNCLOS and establishes legally binding rules that are concretised by the subsequent provisions of Part XI UNCLOS and the regulations of the ISA.33 This means that the common heritage of humankind bundles different provisions under one
29 cf Elferink, 2007, p 154.
30 The CH is used in Article 1 OST and Artcles 11, 4 (1) MOON.
31 Dahm et al, 2002, p 411; Wolfrum, 2008, para 3; Vöneky/Höfelmeier, 2017, para 15.
32 See for more information Baslar, 1998; Dahm et al, 2002, p. 411; See Wolfrum, 2008, para 25 arguing that
the CH is part of customary international law in relation to the deep seabed. In light of the disagreement and to some extent diverging practice of the USA this is however debated. cf Vöneky/Höfelmeier, 2017, paras 15, 21.
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generic term.34 The set of rules that are combined under the term common heritage of humankind is described as a concept for the purpose of this thesis.35
The concept of common heritage of humankind is fundamental for Part XI UNCLOS.36 Article 311 (6) UNCLOS expressly prohibits the derogation from Article 136. The system built upon the CH establishes legally binding obligations and responsibility for states and private contractors. After the changes made in the 1994 Agreements, the majority of states have accepted the system established by UNCLOS and subsequently ratified UNCLOS and the 1994 Agreement. 37
3. Five defining aspects of the concept of common heritage of humankind
Building on the literal interpretation of Article 136 UNCLOS, different elements which are contained within the concept of common heritage of humankind are further outlined. The most prominent mention of the common heritage of humankind is a note verbale of Malta. It requested to include in the agenda of the UN General Assembly a discussion on a declaration and treaty regarding the reservation for peaceful purposes of the seabed and ocean floor beyond present national jurisdiction.38 This document was not the first reference to the deep seabed and the common heritage of humankind, but it has had an important impact on its design.39 In the document, Malta requested to declare the deep seabed to be common heritage of humankind. It outlined different aspects considered important to be included within this concept.40 These points were explained in more detail during the twenty-second UNGA session by the Maltese Ambassador Pardo.41 In his speech he described that a high amount of resources were estimated
to be lying on the ocean floor. As these were not specifically regulated, Ambassador Pardo
34 cf Baslar, 1998, p 6.
35 Some authors are of the opinion the CH is aptly described as a concept (Joyner, 1986, pp 197-198; Baslar,
1998; Beyerlin, 2008, p 428; Dupuys/Viñuales, 2018, p 59), others argue that it best can be described as a principle (Wolfrum, 1983 and 2009, para 2; Elferink, 2007, p 154; Vöneky/Höfelmeier, 2017, para 15). This debate is not decisive for the scope oft he present thesis and is therefore only mentioned fort he sake of completeness.
36 Wolfrum, 2009, para 1.
37 168 states have signed UNCLOS and 150 states the 1994 Amendment to Part XI,
https://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm; Even the USA as prominent non-signatory state is an observer state to the ISA. cf Harrison, 2014, pp 7-9; Lodge, 2012, pp. 738,742.
38 UN, 1967 b.
39 cf Baslar, 1998, p 80 f; See Ranganathan (2016) for a critical assessment of the role of Ambassador Pardo’s
speech in the debate on the common heritage of humankind.
40 UN, 1967 b, para 3.
41 Non-appropriation, a management system, sharing of benefits, peaceful use, and preservation for future
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concluded this would expose all states to the danger of conflict due to rivalries. Declaring the deep seabed common heritage of humankind aimed to bar unilateral appropriation of resources while making them accessible to all states.42
The UNGA Declaration of Principles of 1970 governing the ocean floor took up many of the elements suggested by Malta. Similar provisions were included in Part XI UNCLOS which regulates the Area.43 These articles explain, inter alia, the legal status of the Area44 and further elaborate on the elements contained in the CH, guiding state behaviour in relation to the deep seabed. The literature has frequently singled out between four and six elements to be contained in the CH.45 For the purpose of this thesis, five key elements are identified. In the order from the most general aspect to the most specific one, these are: Preservation for future generations, non-harmful use, an international management system, non-appropriation and equitable benefit sharing. Starting from their codification in UNCLOS, this chapter will explain their meaning and their basis in international law. This analysis is the basis for understanding the regulatory system for the deep seabed.
a) Preservation for future generations
Article 136 UNCLOS declares the Area and its resources to be the common heritage of humankind. Stressing the terms heritage and humankind, it becomes clear that the thought of future generations is inherent in the principle.46 Without preservation of the Area and its resources there is no heritage that can be handed down to the next generation. The demand to pursue the benefit of humankind as a whole with activities in the Area47 is a reference to more than just the current generation’s interests.48 Article 137 (2) UNCLOS states that the rights to
the resources are vested in humankind. These rights are held by humankind as a trust that needs to be preserved for future generations.49 In that regard the International Law Association (ILA)50, when considering the CH as a developing principle of public international law, stressed the duty of states to preserve and enhance the environment for the sake of current and future generations.51 This aspect is to some extent outlined in Article 150 (b) UNCLOS which calls
42 cf Dahm et al, 2002, p 411 f; cf Feichtner, 2019, p 602 f. 43 “Principles governing the Area“, Articles 136-149 UNCLOS. 44 Article 137 UNCLOS.
45 cf Baslar, 1998, p 79 ff; Brunnée, 2008, p 562; Wolfrum, 2009, paras 14-24; Noyes, 2011, p 450 f.
46 Joyner, 1986, p 195; Kiss/Shelton, 2007, p 15; Wolfrum, 2009, para 22; Vöneky/Höfelmeier, 2017, para 16. 47 Articles 140 (1), 143 (1), 150 (i) UNCLOS.
48 Dahm et al, 2002, p 413; Brocza/Brocza, 2014, p 123. 49 Kiss/Shelton, 2007, p 16; Wolfrum, 2009, para 15.
50 The ILA is an NGO tasked with the clarification and progressive development of international law,
https://www.ila-hq.org/index.php/about-us/aboutus2.
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for the “orderly, safe and rational management of the resources of the Area”. It sets a clear limit to the exploitation of resources and obliges states to safeguard the Area and its resources for future generations to be able to enjoy the resources as well. The ICJ in its Advisory Opinion on the Legality of Nuclear Weapons has referred to the interest of future generations in relation to the obligation of states under general international law to do no harm to other states or areas beyond national jurisdiction.52 This obligation of international law connects the element of preservation for future generations with the element of non-harmful use.
b) Non-harmful use of the Area and its resources
Articles 141 and 143(1) UNCLOS stipulate that scientific research and other activities in the Area may only be conducted for peaceful purposes. In light of the then ongoing Cold War, a major concern at the time of the introduction of the CH was, to ensure the deep seabed was not to be used for military purposes neither then, nor in the future.53 This emphasis on peaceful use
of common areas also entered other agreements regulating areas beyond national jurisdiction like the Outer Space Treaty and the Moon Agreement.54
Moreover, Articles 145 and 146 UNCLOS provide for the obligation to protect human life and the marine environment from detrimental effects of activities in the Area. The 1986 Seoul Declaration of the ILA stated that the CH encompassed the obligation of states to protect the environment. This includes the responsibility to ensure that activities within the jurisdiction or control of states do not cause damage to the environment of other states or ABNJ.55 This phrase reiterates the second part of Principle 21 Stockholm Declaration56 which itself is an expansion and progressive formulation of the ‘no-harm’ principle.57
The ‘no-harm’ principle as a principle of international law was first outlined in the Trail Smelter Arbitration, stating that no state may allow the use of its territory to harm another state.58 The case concerned the damage caused by the emissions of a Canadian smelter to land and harvest in the USA. The ICJ confirmed the validity of the ‘no-harm’ principle in the Corfu Channel case for general international law. 59 In the formulation of Principle 21 Stockholm Declaration, the focus shifts from damage to the territory of another state to damage to the environment
52 Legality of Nuclear Weapons, para 29. 53 UN, 1967 c, paras 45-55.
54 cf Articles 3, 4 OST and Articles 2, 3 MOON stipulating the prohibition of all kinds of weapons of mass
destruction and the prohibition of other than peaceful uses of the respective territories.
55 ILA, 1986, para 7.5. 56 UN, 1972.
57 Viñuales, 2009, p 240; Dupuy and Viñuales, 2018, p 66. 58 Trail Smelter Arbitration.
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whether within another state or in ABNJ.60 This shift demonstrates that value of the environment in itself is recognised to some extent by international law. It was confirmed by the ICJ in its Advisory Opinion on the Legality of Nuclear Weapons61, where the Court affirmed that Principle 21 was part of customary international environmental law.62 The ‘no-harm’ principle has been developed further since then. In the Pulp Mills case the ICJ built on previous case law and stated that the principle of prevention was a rule of customary international law that was based on the ‘no-harm’ principle of the Corfu Channel case.63 The judgement Costa Rica vs. Nicaragua acknowledged the general obligation to conduct an environmental impact assessment (EIA) under international law, in order to fulfil the due diligence obligation to prevent significant64 transboundary harm.65 This goes further than the obligation not to cause harm, it includes an obligation to actively take measures to prevent such harm. In 2010 the Council of the ISA requested the Seabed Disputes Chamber (SDC) of the International Tribunal of the Law of the Sea (ITLOS) for an advisory opinion on the responsibilities and obligations of sponsoring states and private actors regarding activities in the Area.66 The SDC affirmed the
due diligence obligation of states to ensure activities are conducted according to the relevant rules and regulations and to adopt measures to prevent harm by such activities.67 The SDC explained that these national measures might need to be adjusted in line with new scientific knowledge and to be adapted according to the potential risk of the respective activities.68 Additionally, it went further and stated that the adoption of the precautionary approach was an essential part of the due diligence obligation of sponsoring states.69 The tribunal stated that to conduct an EIA is a direct obligation under UNCLOS as well as under customary international law.70
The exploration regulations of the ISA contain both, the obligation to conduct prior EIAs as well as the application of a precautionary approach.71
60 cf Viñuales, 2009, p 244.
61 Legality of Nuclear Weapons, p 241, para 29. 62 cf Viñuales, 2009, p 246; Sands/Peel, 2018, p 206.
63 Pulp Mills, para 101, referring to Legality of Nuclear Weapons, p 241, para 29.
64 For a definition oft he threshold of ‚significant harm‘ see ILC, 2001, Article 2 Commentary. 65 Costa Rica v Nicaragua, para 104, referring to Pulp Mills, paras 101, 204.
66 ITLOS No 17. 67 ibid, para 108. 68 ibid, paras 117 f.
69 The tribunal declared that Principle 15 Rio Declaration has been transformed into a general binding
obligation for sponsoring states. cf ITLOS, No 17, paras 125-131; see also Dupuy/Viñuales, 2018, p 69.
70 ITLOS No 17, paras 141 - 145, 150, referring, inter alia, to section 1, paragraph 7, of the Annex to the 1994
Agreement, Regulation 31, paragraph 6 Nodules Regulations and Regulation 33, paragraph 6 Sulphides Regulations.
71 See exemplarily, Regulations 5, 33, Annex 4 Section 5 Sulphides Regulation; See for further information on
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To summarise, the concept of common heritage of humankind contains the obligation to ensure the non-harmful use if the deep seabed. This relates to the prohibition of military use of the deep seabed as well as to an obligation to protect the marine environment. The latter aspect relates to the principles of ‘no-harm’ and prevention under general international law. It is the task of the International Seabed Authority (ISA) to draft appropriate rules that specify these obligations.72 The role of the ISA as managing authority for the deep seabed is the subject of the following section.
c) International management of the Area
Article 137 UNCLOS establishes different aspects that are important for the regulation of the deep seabed. It assigns the rights to the deep seabed to humankind and sets up the ISA which is to act on humankinds behalf in the management of the Area’s resources.73 The ISA is an independent international organisation comprised of state parties to the Convention. It holds the capacity to establish rules and to control activities in the Area.74 Article 153 describes the main
activities in the area as exploration and exploitation of the deep seabed. In line with its mandate, the ISA has issued regulations for prospecting and exploring polymetallic nodules75,
polymetallic sulphides76 and cobalt-rich ferromanganese crusts77. It is currently in the process of drafting regulations on exploitation of mineral resources in the Area.78 The regulations are directly binding upon states as well as upon private actors conducting activities in the Area via inclusion in the contracts.79 They regulate in detail which information needs to be provided for the application for contracts.80 Moreover, they describe the applicable standard for environmental protection and liability. They also include the obligation to conduct EIAs in certain circumstances.81 Seabed minerals may exclusively be explored and exploited according to these rules and states have the obligation to assist the Authority in its tasks of controlling
72 cf Dahm et al, 2002, p 415.
73 Articles 137 (2), 153 (1), 156 (1) UNCLOS; The ISA was established following the entry into force of the
UNCLOS in 1994.
74 cf Articles 156 (2), 153, 157 (1), 176 UNCLOS; The main organs of the ISA are the Council, the Secretariat, the
Assembly, and the Enterprise. cf Articles 158 – 170 UNCLOS; https://www.isa.org.jm/organs.
75 Polymetallic Nodules Regulation of 2000 amended 2013 and 2014. 76 Sulphides Regulation of 2010 amended 2014.
77 Ferromanganese Crust Regulation.
78 ISA, 2019; cf https://www.isa.org.jm/mining-code;
https://www.isa.org.jm/legal-instruments/ongoing-development-regulations-exploitation-mineral-resources-area; The term ‘mining code’ designates the ISA rules on explorations and exploitation in their entirety.
79 All three regulations include standard clauses for exploration contracts in Annex IV, Section 13.1. 80 cf Ferromanganese Crust Regulation, Regulations 20, 32, 33.
81 cf Section 5.2(a) Ferromanganese Crust Regulation, Sulphides Regulation and Polymetallic Nodules
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activities in the Area. 82 The 1970s Declaration of Principles governing the Seabed already mapped the desirability of an international system for the deep seabed that includes an “international machinery” and enhances the cooperation of states.83 States are required to work
together through the ISA on behalf of humankind. Additionally, they have to assist individually in the endeavours of the organisation.84 This is described as a “duty to cooperate ‘in a spirit of global partnership’”. Thus, the desired management system is placed in the bigger framework of cooperation in international law.85 Further objectives of the activities in the deep seabed are laid down in Article 150 UNCLOS. These include the obligation to develop the deep seabed safely and rationally and to promote a healthy world economy as well as just and stable prices.86 The detailed management system regulates the obligations of states and private contractors and administers the resources of the deep seabed.
d) Equitable benefit sharing
The Maltese proposal outlined the concern that a great number of states might be excluded from using the resources of the deep seabed. Only those states with sufficient technological and financial resources would be able to participate, which would expand the existing prosperity gap.87
The element of non-appropriation prevents the exclusion of these states, but it does not automatically provide access to the deep seabed. In this context, Article 148 UNCLOS sets the goal to promote developing state’s activity in the Area. Moreover, activities in the Area have to benefit humanity especially taking account of the needs and interests of developing states and peoples without full independence.88 The Authority is tasked with the distribution of the benefits resulting from activities in the Area in a non-discriminatory way.89
In international law, the obligation to share benefits derived from natural resources has entered different international instruments with varying meanings.90 The idea stems from the 1970s NIEO movement91 which developed against the backdrop of an economic world order that was putting developing and newly independent states at a disadvantage.92 This ideological setting
82 cf Article 153; Section 4 Part XI UNCLOS. 83 UNGA, 1970, Recital 5, para 11.
84 cf Wolfrum, 2009, paras 14 f.
85 cf UN Charter Artsicle 1, 55,56; Dupuy/Viñuales, 2018, p 74, referring to Rio Declaration, Principle 7. 86 Article 150 (b) (f).
87 cf UN, l967 b, paras 5, 6, 71, 73; cf Baslar, 1998, p 87 f. 88 Article 140 (1) UNCLOS; cf Wolfrum, 2009, para 18. 89 Articles 140 (2) and 160 (2) (f) (i) UNCLOS.
90 cf Morgera, 2016, p 354 f with further references. 91 UN, 1994; cf Sacerdoti, 2015, paras 3, 5 f.
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is visible in different provisions throughout UNCLOS.93 The preamble of UNCLOS sets the establishment of a fair and equitable world economy as an objective which pays special attention to the needs and interests of all developing countries.94 The sharing of benefits obtained from the deep seabed resources is one aspect on the way to achieve such an equitable economic order. Articles 142 to 144 UNCLOS further elaborate the notion by requiring, inter alia, transfer and dissemination of knowledge and technology to developing states.95 Thus, benefit sharing under UNCLOS has a broad notion, including the revenue from use of resources as well as capacity building and technological support.96
The 1994 Implementation Agreement has changed the focus of PART XI, prioritizing a more neo-liberal economic approach that follows liberal commercial principles over redistribution.97 For example, the systematic change regarding technology transfer lifts the burden off of private contractors.98 According to the 1994 Agreement, the Enterprise and developing states have to
obtain technology primarily on the open market. Only if this is not possible, can the Authority request contractors and sponsoring states for help in facilitating this.99 To promote capacity
building, the ISA has established an endowment fund that supports the training and participation of scientists from developing countries. 100 Although the 1994 Agreement changed the system under Part XI UNCLOS to a great extent, the aspect of benefit sharing is still contained within the concept of common heritage of humankind. It is implemented by different provisions established by the ISA, with a great emphasis on knowledge transfer.101
e) The prohibition of appropriation
One of the most prominent arguments brought forward by Malta was the concern that the suspected riches in the deep sea might incite a new race for resources between states. To prevent this, Article 137 UNCLOS prohibits the declaration or exercise of sovereignty or sovereign rights over the Area and its resources. This is extended by a prohibition of appropriation by any
93 Article 140 (1) UNCLOS takes into account the special interests of developing states and Preamble Recital 5
aims to promote a fair and equitable world economy.
94 UNCLOS Preamble, Recital 5. 95 Vöneky/Höfelmeier, 2017, para 19.
96 cf Harrison, 2014, p 29, referring, inter alia, to UNCLOS, Article 144(2) and Annex III, Article 15. 97 cf 1994 Agreement, Annex Section 6, para 1(a). French, 2011, p 528 f.
98 cf Harrison, 2014, p 28.
99 UNCLOS Annex III, Article 5(3)(a) is changed by Part XI Agreement, Annex, Section 5, para 2 and XI
Agreement, Annex, Section 5, para 1
100 ISA, 2006.
101 Each contractor has to propose a programm for training personnel from the Authority and nationals from
developing countries, cf Regulation 29 Sulphides Regulation; Annex IV, Section 8 Ferromanganese Crust Regulation, Regulation 27 Polymetallic Nodules Regulation.
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state or private person.102 The obligation not to recognise such a claim or act as regards the deep seabed and its resources adds an additional safeguard to the prohibition of appropriation.103 Non-appropriation was a key concern in the Maltese proposal and included in the subsequent declaration as well.104 It is the first provision that follows the declaration of the deep seabed as the common heritage of humankind. This provision is deeply linked with the CH as the prohibition of unauthorised appropriation of the deep seabed by states and private actors, is an important prerequisite for the functioning of the management system.
f) The CH as regulating concept for the Area
The previous sections analysed the concept of common heritage of humankind as codified in UNCLOS and its development. They illustrated each element and based them within the corpus of international law. Originating from the Maltese proposal, the 1970 Declaration of Principles governing the Area and UNCLOS, five central elements were defined. Namely, preservation for future generations, non-harmful use, international management, equitable benefit sharing and non-appropriation. These elements are identifiable throughout the cited documents phrased in general terms. This poses a difficulty when first considering the common heritage of humankind. However, each element gets a more tangible meaning through the analysis of Part XI, the 1994 Agreement and the regulations issued by the Authority. These spell out precise obligations for states and private contractors.
To sum up, the premise is that the Area and its resources are common resources which are entrusted in humankind as a whole. An independent international organisation that is comprised of state parties to the Convention administers these resources on behalf of humanity. The governing rules are established in UNCLOS. The ISA has the jurisdiction to adopt rules for the regulation of activities within the Area within its mandate. Guiding principles for the Authority are the cooperation of states, the preservation of the marine environment and the fair and equitable development and distribution of deep seabed resources. Equity between states must be considered as well as equity between generations, enabling present as well as future generations to profit from the Area’s resources.
Considering this synopsis, the concept of common heritage of humankind in relation to the deep seabed is now illustrated in all aspects relating to the research question. The concept regulates the use of and access to the deep seabed via the establishment of an international management system. This is achieved through the prohibition of unauthorised appropriation, the obligation
102 Article 137 (1) UNCLOS.
103 cf Wolfrum, 2009, para 13; Vöneky/Höfelmeier, 2017, para 17. 104 cf UN, 1967 c, paras 6, 39, 90, 103; UN, 1970, paras 2, 3.
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to use the Area and its resources in a non-harmful way with the aim to preserve them for future generations, and the equitable sharing of benefits derived from the resources.
III. The concept of sustainable development
Using resources in a manner that allows an ecosystem to regenerate itself, has been guiding humans in the cultivation of plants in many cultures for several centuries.105 Against the backdrop of rising awareness of resource depletion and degradation of ecosystems due to human influences, the term sustainable development has become very influential.106 It is one of the main environmental discourses which frames the discussion of resource regulation.107 The most frequently quoted definition is found in the so called Brundtland report108 of the World Commission on Environment and Development: Development that “meets the needs of the present without compromising the ability of future generations to meet their own needs.”109
This translates into the call on states to preserve the regenerative ability of ecosystems and the earth, to guarantee that the needs of humanity can be fulfilled continuously. It imposes limits on resource exploitation and economic growth.110 As such it represents a paradigm shift in the
consideration of the economy. 111
This introduction to sustainable development focuses on the main elements that are contained in the concept and on its legal status in international law. The aim is to have a general understanding of the concept. This serves as basis for the analysis of the link between the concept of the common human heritage and sustainable development in relation to the deep seabed in chapter IV.
105 One example is forestry in Germany, where Carl von Carlowitz urged for a forest management where only as
many trees would be cut that could regrow in a certain amount of time. This would enable a continuous and stable use of the forest while preserving its capacities to regenerate itself. cf von Carlowitz, 1713, p 105 f. See also Gabčíkovo-Nagymaros, Separate Opinion Judge Weeramantry, p 98 ff with an outline of ancient irrigation systems as an example of sustainability.
106 For a brief but detailed overview of the emergence of the international sustainability debate, see Purvis et.
al, 2019.
107 cf Rpbert et al, 2005, p 8; Wälde, 2004, p 120. 108 UN, 1987.
109 Brundtland report, p 16, para 27.
110 cf Brundtland report, p 16 paras 27-29, p 41, para 1. 111 Tladi, 2007, pp 34, 38.
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1. Key elements of sustainable development
The term sustainable development has a broad meaning.112 However, certain key points are
distinguishable which are common to most perceptions of the concept. Economic development, social development and environmental protection are described as the three pillars of sustainable development. 113 The thesis also uses the term dimension to refer to the different pillars. The concept of sustainable development, however, encompasses more than combination of economic and social development and environmental protection. There have been different approaches to formulate the main aspects of sustainable development.114 This sub-chapter will focus on four key components of sustainable development: The three pillars of sustainable development as described above, the integration of the three dimensions, and the objectives of inter- and intragenerational equity.
a) The three pillars of sustainable development
The Stockholm Declaration of 1972, without mentioning the term sustainable development, manifested the importance of environmental protection for social and economic development and on the importance to align those objectives.115 The necessity to reconcile economic development with environmental protection in order to attain sustainable development was stipulated by Principle 4 Rio Declaration and endorsed by the ICJ in the Gabčíkovo-Nagymaros case.116 The 1995 World Summit for Social Development reinforced that connection, declaring economic development, social development and environmental protection “interdependent and mutually reinforcing components of sustainable development”.117 The Johannesburg
Declaration adopted on the World Summit on Sustainable Development in 2002 stipulated the fundamental importance of the three pillars of sustainable development - economic development, social development and environmental protection.118 These manifestations stress that sustainable development involves “a comprehensive and integrated approach to economic, social and political processes.”119
112 The Johannesburg Declaration para 19 illustrates the wide conception of sustainable development by listing
various issues that have an adverse effect on the concept.
113 cf OECD, 2000, p 19; cf Purvis et al, 2019, 685 ff including a detailed review of the origin of the three pillars
of sustainable development.
114 The ILA in its New Delhi Declaration identifies seven principles relating to sustainable development. Nico
Schrijver identifies seven main elements of the concept. cf Schrijver, 2008, p 208; Sands/Peel, 2018, p 218 f identify four elements.
115 Stockholm Declaration, Preamble, paras 2, 6. 116 Gabčíkovo-Nagymaros, para 140
117 Copenhagen Declaration, para 6. 118 Johannesburg Declaration, paras 5,8 119 ILA, New Delhi Declaration, Recital 13.
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The dimension of economic development focuses on the enhancement of the world economy. Stable markets and flourishing state economies are seen as the prerequisite for achieving the eradication of poverty and a peaceful world order.120
A main objective of social development under sustainable development is the dissemination of education as well as the eradication of poverty, hunger, and diseases. This includes increasing equity between states, between people in the same state and between the genders. Many other objectives and initiatives can be summarised under the pillar of social development.121
The dimension of ecological protection focuses on the importance of maintaining environmental conditions that promote human welfare. This includes the preservation of the regenerative function of ecosystems and demands the efficient use of resources and the reduction of waste and pollution.122
b) “Meet the need of the present”...
The expression to ‘meet the needs of present generations’ articulates the element of intragenerational equity.123 Its main goal is the eradication of poverty. Establishing living
conditions that fulfil the basic needs of people is considered substantial for achieving sustainable development.124 Another important aspect of intragenerational equity stresses the aspect of empowerment included in the social development dimension. Education is a crucial prerequisite for sustainable development.125 The sound development of state’s economy is seen to be key in achieving social development.126 Intergenerational equity calls upon states to cooperate127 in achieving the eradication of poverty.128 This goal has been expressed in different intergovernmental documents.129 Regarding shared resources, intragenerational equity demands their equitable use by different states.130 The ICJ in the Pulp Mills case has considered
120 Schrijver, 2008, p 210 f. 121 cf Schrijver, 2008, p 215. 122 Schrijver, 2008, p 209 f.
123 Brundtland report, p 16, para 27; Rio Declaration, Principle 3. 124 Brundtland report, ibid; Rio Declaration, Principle 5.
125 cf Copenhagen Declaration, paras 6, 7. 126 cf Brundtland report, p 41 f.
127 On the status of the obligation to cooperate under general intrernational law, see Wolfrum, 2010, especially
paras 5, 15-17, 40.
128 Rio Principle 5; ILA, New Delhi Declaration, paras 2.3, 2.4.
129 Copenhagen Declaration, para. 20; Johannesburg Declaration, para 17; Articles 7, 9, 17 Charter of Economic
Rights and Duties of States.
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that the equitable and reasonable use of shared resources is an important aspect of sustainable development.131
c) “without compromising the ability of future generations to meet their own needs”
The importance to consider the interests and needs of future generations in policy decisions is referred to as intergenerational equity. This element is supported by Rio Principle 3.132 It acknowledges the limits of nature to provide resources. As a necessary result it introduces limits that states have to observe in the use of natural resources.133 Principle 9 Rio Declaration stipulates the importance of capacity building and knowledge exchange to empower people to use resources in a sustainable way. The sustainable use of resources allows the maintenance of the regenerative capacity of ecosystems.134 It avoids unnecessary waste and stipulates the efficient use of resources. It stresses the obligation of states to preserve nature and its ability to regenerate itself for the sake of future generations. In that regard, it has been suggested that humanity holds the earth and its resources in a trust.135 This conceptualisation illustrates the
rights and obligations present generations have in enjoyment of said resources as expressed by the element of intergenerational equity.
d) Integrating the different dimensions
In the Rio Declaration, Copenhagen Declaration and Johannesburg Declaration, states have expressed the interrelatedness of the different dimensions of sustainable development and the need to pursue them collectively.136
This illustrates that sustainable development focuses on a holistic approach. Attention has to be paid to the interrelatedness of all three pillars. The concept recognises that economic, social, and ecological endeavours influence each other. This means that economic development cannot be regarded without acknowledging its ecological and social implications. 137 Integration of these different dimensions is the novelty of the concept of sustainable development and its conditio sine qua non.138 It illustrates the realisation that policy considerations need to be
131 cf Pulp Mills, para 177.
132“The right to development must be fulfilled so as to equitably meet developmental and environmental
needs of present and future generations.“
133 cf Brundtland report, p 41, para 1; Rio Declaration, Principle 8; Sands/Peel, 2018, p 225. 134 cf Constanza/Patten, 1995, p 193.
135 Brown-Weiss, 1992, p 395.
136 Rio Principle 4; Copenhagen Declaration, para 6; Johannesburg Declaration, paras 5, 8. 137 Barstow Magraw/Hawke, 2008, p 628.
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readjusted to respond to social needs and environmental concerns. In this regard sustainable development has been described as a paradigm shift.139 The element of integration makes sustainable development more than the sum of economic development, social development and ecological protection.
2. Legal status of the concept of sustainable development
The definition of sustainable development of the Brundtland report has not entered into a legally binding instrument.140 But its core elements have been taken up and further outlined by various declarations of states.141 Apart from that, the concept of sustainable development has been very influential, entering many international instruments with various purposes. An example is the preamble of the Marrakech Agreement establishing the WTO which has identified sustainable development as one of its objectives.142 In different binding treaties143, the concept serves as an interpretative guidance for the object and purpose of the treaty or as a general objective of the treaty.144 It also entered political documents by the UN as policy guidelines. The documents
focus on different relevant aspects for the realisation of sustainable development.145 Thus, states
have endorsed sustainable development, including it in various instruments, even national legislation.146
Differences in the understanding of sustainable development affect the classification of its legal status. There are varying views of the interpretation of the legal status of sustainable development in international law.147 An example is the decision of the ICJ in the 1997 Gabčíkovo-Nagymaros case. The majority defined sustainable development as a concept that integrates economic development with ecological protection.148 In his separate opinion Judge Weeramantry took a different position and strongly argued that sustainable development was essentially part of international law and had the legal status of a principle of international law
139 Tladi, 2007, pp 34, 37.
140 Barstow Magraw/Hawke, 2008, p 618.
141 Rio Declaration, Copenhagen Declaration, Johannesburg Declaration, Millenium Declaration. 142 WTO, 1994, Preamble first paragraph.
143 UN, 1994 c, Preamble, Article 9 (1); UNFCCC, Articles 2 and 3; CBD, Preamble, Articles I and 10. 144 NAFTA, Preamble, Recital 13; cf Barstow Magraw/Hawke, 2008, p 622.
145 The eight Millennium Development Goals of 2000 were aimed primarily at the social dimension, eradicating
poverty and achieving sustainable development for developing countries. The seventeen Sustainable
Development Goals of 2015 set out a more global agenda targeting all three pillars of sustainable development.
146 cf Brunnée, 2008, p 627, referring to the Environmental Protection Acts in Canada and Australia. Sustainable
development has also entered state constitutions, cf Schrijver, 2008, p 153 ff, with a closer evaluation.
147 Authors’ opinions range from political ideal (Verschuuren, 2006, p 43 f); discourse (Dryzek, 2008, p 56);
concept (Schrijver, 2008, p 102), to principle of international law (Voigt, 2009, p 186).
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with an accordingly normative character.149 The ILA aligned itself with the position of the majority of the ICJ.In its New Delhi Declaration, it considered sustainable development to be widely recognised by states as a concept and a global objective.150
Summing up, the perception of the legal status of sustainable development differs significantly. Furthermore, the concept of sustainable development fulfils different purposes in international instruments. Therefore, it seems appropriate to interpret sustainable development as a concept and a global objective.151
3. Sustainable development as global policy objective
The previous sub-chapters have described the concept of sustainable development as a global objective and outlined its defining characteristics: The integration of economic development, social development, and environmental protection while observing inter-and intragenerational equity. This illustrates that the concept offers guidance for state behaviour rather than prescribing concrete actions. What sustainable development in a concrete situation requires, depends on the context and the specific issue at hand.152
The Agenda 2030 for Sustainable Development is the contemporary political framework states have set themselves to achieve sustainable development.153 It contains 17 sustainable development goals (SDG) that are divided into 169 more detailed targets which shall be achieved by 2030. The Agenda is a plan of action which concretises the global objective of sustainable development for the current decade.154
IV. Linking the concept of common heritage of humankind with the concept of sustainable development
Sustainable development is a contemporary framework for the regulation of resources and a global policy objective. The Agenda 2030 targets the encompassing realisation of sustainable development. In that regard, SDG 14 pursues the aim to “[c]onserve and sustainably use the
149 His main arguments were the wide recognition of sustainable development by states in various international
instruments, and its necessary role as a reconciliating principle between the right to environmental protection and the right to development. cf Gabčíkovo-Nagymaros, Separate Opinion Judge Weeramantry, pp 93-95, 88-90.
150 Preamble New Delhi Declaration, Recital 1. 151 cf Birnie et al, 2009, p 127.
152 Purvis et al, 2019, p 692.
153 Agenda 2030 adopted by the UN General Assembly in 2015. 154 cf Agenda 2030 preamble.
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oceans, seas and marine resources for sustainable development”. The common resources of the deep seabed are part of the oceans and the common heritage of humankind has been introduced as its regulating concept more than 50 years ago. This chapter examines the potential of the CH to contribute to the global objective of implementing sustainable development in the deep seabed. In that regard the first sub-chapter analyses whether the concept of CH contains elements of sustainable development. On the basis of that assessment, the second sub-chapter examines general conditions for a sustainable development in the deep seabed. The final sub-chapter merges the observations of the previous ones and points out unresolved issues that need to be considered by the ISA when drafting the exploitation regulations and beyond that.
1. Elements of sustainable development in the concept of common heritage of humankind
Both, the concept of common heritage of humankind and the concept of sustainable development include considerations on economic, social and environmental aspects. Does the concept of sustainable development fit within the conceptual framework of the common heritage of humankind? To answer this question, the key elements of the CH are assessed on the basis of the defining elements of sustainable development.
a) Preservation for future generations
A responsibility towards future generations is included in Article 136 UNCLOS as implied by the term heritage of humankind. The CH sets limits to the exploitation of the Area’s resources and obliges states to consider in present decisions the well-being of future generations.155 Intergenerational equity is concerned with the possibility of future generations to fulfil their needs by maintaining the capacity of ecosystems to regenerate. Preserving the deep seabed for future generations by safely and rationally managing the Area156, is a specific expression of intergenerational equity.157 Part XI does not prescribe in detail how or to what extent future generations need to be taken into account in undertakings in the deep seabed but it stresses the obligation to preserve the marine environment.158 It is the task of the ISA to specify this aspects in their regulations.
155 cf Tladi, 2015, p 128. 156 Article 150 (b) UNCLOS.
157 Schrijver, 2008, pp 176, 212; Brown Weiss, 2013, paras 3, 6, 18. 158 Article 145 UNCLOS.
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b) Non-harmful use of the Area and its resources
Closely related to the element of preservation for future generations is the obligation of non-harmful use of the Area and its resources under the CH. This contains the obligation for protection and conservation of the marine environment, as well as the exclusively peaceful use of the Area.159 The ISA is tasked with issuing the respective rules that regulate the activities in the Area accordingly.160 Exercising this duty, it has released different regulations concerning the exploration of the different seabed minerals and is at present in the process of drafting a regulation for the exploitation of the different minerals.161 The concept of sustainable development stresses the importance of protecting the environment while pursuing economic development. This includes a sustainable utilization of resources, allowing for the regeneration of the ecosystems and a continuous exploitation. A basic condition for this is the observation of the ‘no-harm’ principle by states.162 This connects the concept of common heritage of
humankind and the objective of sustainable development. In that regard the common heritage of humankind expresses the duty of states to ensure the sustainable use of the deep seabed.163
c) Benefit-sharing
Under the principle of common heritage of humankind, states have to equitably share the benefits derived from activities in the area.164 The development of the Area’s resources shall be beneficial for all states. A special focus lies on the needs of developing countries.165 Even the right to a part of the CH of peoples that have not yet attained full autonomy to part of the CH is recognised.166
In a similar vein, intragenerational equity as part of the concept of sustainable development, requires states to share collective resources fairly.167 It emphasizes the eradication of poverty and stipulates the creation of equal living conditions within states.168 A basic requirement to achieve this goal is education. This conviction is included in Principle 9 Rio Declaration calling for the exchange of scientific and technological knowledge. The CH also contains an obligation to exchange technologies for the exploration and exploitation of the Area.169 The element of
159 Articles 145, 141 UNCLOS. 160 Article 145 UNCLOS.
161 Polymetallic Nodules Regulation, Ferromanganese Crust Regulation, Sulphides Regulation, etc. 162 ILA, New Delhi Declaration, para 1.1.
163 cf ILA, New Delhi Declaration, para 1.3.
164 Article 140 UNCLOS; cf for more information Chapter III.4.
165 See for example the reference to developing states in Articles 148, 150 (h) UNCLOS. 166 cf Schrijver, 2008, p 168.
167 For intragenerational equity see Chapter III.1 b; cf Gabčíkovo-Nagymaros, para 85; Pulp Mills, para 177. 168 cf Barstow Magraw/Hawke, 2008, p 630.
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benefit sharing contained in the CH focuses on the differences between states, especially between developing and developed states. It can be described as an expression of intragenerational equity.170
d) International management and non-appropriation
On the basis of the concept of common heritage of humankind, Part XI establishes an international management system for the common resources of the deep seabed. The ISA is tasked with administering the deep seabed according to the provisions laid down in Part XI UNCLOS and the 1994 Implementing Agreement. Connected with the centralised regulatory system of the deep seabed is the prohibition of unauthorised access to its common resources. The rights to the deep seabed belong to humanity in its totality. States and private persons are only allowed to use it under the regulations of the ISA. On the basis of the CH, a common management system is created which underlines the need for cooperation and is tasked with pursuing the well-being of humankind. Exploration and subsequent economic exploitation are a main goal of the system established under the common heritage of humankind.171 Considering economic activities, Article 150 (b) UNCLOS stipulates the rational and efficient management of the Area. Article 150 (f) UNCLOS lays down the promotion of just and stable prices and a long-term equilibrium of supply and demand regarding deep-sea minerals. The Implementing Agreement in Section 6 (1)(a) Annex stresses the importance of pursuing sound commercial principles. The aim of exploitation of the Area’s minerals is fundamental to the entire Part XI.
The UNCLOS and subsequently Part XI aim to promote a “just and equitable international economic order”.172 The fact that humankind as a whole is entrusted with the Area’s resources and the obligation to ensure all economic benefits derived from the Area and its resources are shared fairly,173 indicates that the established system does include a social dimension.
Moreover, Article 150(h) UNCLOS considers possible adverse effects that the mining of deep-sea minerals might have for the economy of developing states. The economies of developing countries shall be protected from adverse effects, for example by means of compensation.174
The management system includes dimensions of ecological protection through the obligation of non-harmful use of the Area and its resources. This outlines that the regulating system for
170 cf Das, 2009.
171 cf Article 150 (a), (e), (f), (j) UNCLOS. 172 UNCLOS Preamble, Recital 5. 173 Article 140 (2).
