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

TABLE OF CONTENTS

ABBREVIATIONS/LANGUAGE

USAGE OF TERMS

Chapter One: Introduction
1.1 Aim of Study
1.2 Significance of Examination
1.3 Existence of a General African Position?
1.4 Literature Review
1.5 Methodology

Chapter Two: Definition

Chapter Three: Municipal and International Precedents
3.1 Municipal Precedents
3.2 International Precedents

Chapter Four: The First Codification of the Freedom of the High Seas

Chapter Five: Pardo’s Proposal in the Context of the 1960s

Chapter Six: Legal Nature in Comparison to Old Concepts of the High Sea

Chapter Seven: Africa’s Aims in the UNCLOS III
7.1 Seabed
7.1.1 The Usage of the Seabed for Exclusively Peaceful Purposes
7.1.2 Ensuring the Rational Exploitation of the Resources
7.1.3 The Minimization of Likely Adverse Economic Effects
7.2 The High Seas above the Seabed

Chapter Eight: The Implementation of CHOM in the 1982 Convention
8.1 Non-Appropriation of the Seabed
8.2 International Management
8.3 Sharing of Benefits
8.4 Reservation of the Seabed for Peaceful Purposes
8.5 Preservation for Future Generations

Chapter Nine: Reflection of Africa’s Demands in the 1982 Convention

Chapter Ten: The LOS after the 1982 Convention

Chapter Eleven: The Legal Character of the Principle
11.1 Jus Cogens?
11.2 Customary Public International Law?

Chapter Twelve: Possibility of Implementation

Chapter Thirteen: The 1994 Agreement
13.1 Policy of Production — Elimination of Production Limitations
13.2 Elimination of Mandatory Transfer of Technology
13.3 Change of Decision-Making in the Council
13.4 Reduction of Financial Contributions of Corporations
13.5 Funds for Economic Aid

Chapter Fourteen: Summary — The Situation Since 1994
14.1 The Usage of the Seabed for Exclusively Peaceful Purposes
14.2 Ensuring the Rational Exploitation of the Resources
14.3 The Minimization of Likely Adverse Economic Effects
14.4 Democratic Machinery

Chapter Fifteen: Conclusion — Contemporarily a “Just” System as Envisaged by Africa?

BIBLIOGRAPHY

ABBREVIATIONS

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USAGE OF TERMS

The term ‘Area’ refers in accordance to Art. 1, 1982 United Nations Convention on the Law of the Sea on the area beyond national jurisdiction and the subsoil thereof underneath the High Seas.

The term ‘polymetallic nodules’ is used interchangeably with ‘manganese nodules’ as the exploitable nodules from the seabed predominantly contain the chemical element manganese in addition to differing amounts of crude nickel, copper, and cobalt.

Descriptive terms in reference to the economic capacity of countries or world regions are used for purposes of clarity and comprehensibility and are not intended to express any personal opinions of the author.

CHAPTER ONE Introduction

The known resources of the seabed and of the ocean floor are far greater than the resources known to exist on dry land. The seabed and the ocean floor are also of vital and increasing strategic importance. […] Some countries may therefore be tempted to use their technical competence to achieve near-unbreakable world dominance through predominant control over the seabed and the ocean […] [floor, which] will lead to a competitive scramble for sovereign rights over the land underlying the world’s seas and oceans, surpassing in magnitude and in its implication last century’s colonial scramble for territory in Asia and Africa. ^[1]

For most people however, being more concerned with the visible surface of the ocean and originating not from the regions most likely to be affected by this “scramble,” the expression “Freedom of the High Seas” has solely a positive sound. It is the freedom mankind longs for: wide open space, together with savagery, the untamable roaring, the salty air which lets one breath freer and makes the heart beat faster.

This perception dates back nearly 400 years, to a time, when Dutch lawyer, philologist, theologian, poet and politician Hugo Grotius published his visionary dissertation “Mare liberum.”^[2] This point of view proved to be too visionary for the hegemonic maritime powers of the time, which were entangled in the emerging concept of ‘sovereignty of State,’ and initially challenged Grotius’ allegedly absolute liberal conception.^[3] Nevertheless his futuristic approach still finally gained predominance in the eighteenth century, when the then leading maritime power England finally championed for Grotius’ concept,^[4] It has however to be noted, that Grotius never claimed that all seas were open to use by all persons. According to him,

- the sea cannot be the object of private or State appropriation,
- the resources of the sea are inexhaustible,
- the use of the High Seas by one State should leave the medium available for use by another and should not hinder other users,
- humankind was not capable of seriously impairing the quality of the marine environment,
- the oceans were so vast and the number of users so limited, that serious conflicts of interest were almost impossible.^[5]

These ideas were visionary in regards to the principle of seeing the sea as res communis omnium, as well as revealing about the rather poor knowledge of the strategists of the area of the oceans as a whole. And although our knowledge even today remains very limited and the oceans still have not revealed much of their secrets, we have started to understand facts some of which are uncomfortable: We know that the living resources of the oceans are vulnerable and not exhaustive. We know, that the — limited — seas do only have a limited capacity (if at all) to act as dumps for the mega cities and mega industries bordering their shores.

Apparently, “Freedom of the High Seas,” had a different meaning to different people. And just as Grotius argued in favor of his mother country’s access to the High Seas, England’s changed attitude to this freedom was based on its emergence as the new maritime power on all seven seas.^[6]

This reveals however, that the dogma of the “Freedom of the High Seas” is Eurocentric and power driven, thus pushing aside the question of any nation’s right over the usage of the oceans in favor of relegating the seas to the position of highways for conquests and imperialistic exercise of power. The peoples, ‘discovered’ by the European navigators, surely did not share the enthusiasm of the “Freedom of the High Seas” as brought forward by those ‘Discoverers.’

In light of globalization with its multinational tycoons and its allegedly liberal freedoms in the realms of trade and the flow of information (evolving to full momentum in this century), the Eurocentrism, and with it the former understanding of sovereignty being predominant in the previous centuries is more and more becoming obsolete. All this forces us to reflect on the Term “Freedom of the High Seas” as invented by Grotius.

This new reflection of “Freedom of the High Seas,” is linked to the date 1 November 1967, when Arvid Pardo, ambassador of newly independent Malta delivered a speech to the United Nations General Assembly (GA) in which he noted that neither the maritime domain^[7] nor the “Freedom of the High Seas” — the double principle on which traditional (Western) Law of the Sea (LOS) was based — were able to solve the problems of modern times. Taking up the process of re-thinking the notion of the “Freedom of the High Seas” that had started earlier^[8], he expressed that the traditional conception would bring the further diminishing of the oceans’ living resources and the destruction of their ecology. In addition, the extension of the territorial sea — the maritime domain — and especially the possibility of exploiting the rich potential that lay on the seabed, which with time came into reach of economic exploitation, would lead to the consequences quoted in the beginning of this introduction and thus resulting in a repetition of the power struggles and conflicts of the nineteenth century.

Thus, so his conclusion, a new principle, which was of higher weight than the “Freedom of the High Seas” and the maritime domain, was necessary to meet the challenges of his time and to protect the seas’ resources for future generations. Explicitly the emergent exploration and early stages of exploitation of the seabed and ocean floor in the 1960s,^[9] over which he expressed concern in his speech to the GA, today cause him to be seen as the originator of the term “Common Heritage of Mankind” (CHOM).

1.1 Aim of Study

Focusing mainly on the seabed and the ocean floor (i.e. the area beneath the High Seas), this paper examines the emergence of the Principle of CHOM in the LOS in light of Africa’s demands — as expressed in Nasila S. Rembe’s book “Africa and the International Law of the Sea”^[10] how to translate the vague concept into legal principles, namely:

- the usage of the seabed for exclusively peaceful purposes,
- ensuring the rational exploitation of the resources,
- the minimization of likely adverse economic effects.

Thus, based on the most recent codifications in the field of LOS, the paper examines if the 1982 LOS Convention met those demands as formulated in N. S. Rembe’s work^[11] and especially if today — after the 1994 Agreement Relating to the Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea (1994 Agreement) which opened the way for the coming into force of the 1982 LOS Convention for nearly all States — these African conceptions are sufficiently considered in the New LOS.

1.2 Significance of Examination

Although the concept of CHOM is explicitly named in the Preamble and Arts. 125, 136, 140 (1), 150 (i), 155 (2), 1982 LOS Convention and the States Parties to this Convention agree

that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof,^[12]

which is again acknowledged in paragraph two of the Preamble of the 1994 Agreement, reaffirming that

the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction […], as well as the resources of the Area, are the common heritage of mankind,

the legal implication of the concept remains vague. It has therefore to be analyzed, if in the process of translating the concept into legal principles relating to the seabed (especially after the 1994 Agreement) the notion was deprived of any legal significance — thus is de facto limited to a mere lip-service and actually remained a hollow phrase.

1.3 Existence of a General African Position?

A continent as diverse as Africa and the different needs of its countries — i.e. the different stages of development, the difference between Sub-Saharan and North African countries and the variation between coastal and land-locked States — seems to make it unlikely that Africa can ‘speak with one voice.’ Thus one might question the African perspective of this paper. And indeed, the regional position spelt out in the Resolutions of the Organization of African Unity (OAU, as it was then named)^[13] presented to the Second Committee of the Third UN Conference on the LOS (UNCLOS III) displayed individual and divided positions on specific issues.

Overall it can nevertheless be held that — since many of the interests converged — the African States maintained a more cohesive group position (as was apparent in the First Committee). They saw these differences secondary in regards to the impact the old fashioned and Eurocentric doctrine of Freedom of the High Seas^[14] has on these (then mostly newly) independent countries^[15]. Their common strive for a New International Economic Order was expressed by the representative of Tanzania to UNCLOS III:

In order to develop modern international law, it was inevitable that certain concepts and dogmas would be challenged, particularly that of the freedom of the high seas, which was completely inappropriate in the modern world. Freedom of the seas had ceased to serve the interests of international justice. It hat become a catchword and an excuse for a few countries to exploit ruthlessly the resources of the sea, to terrorize the world and to destroy the maritime environment. That type of freedom belonged to the old order and had outlived its time.^[16]

In light of this ‘common African enemy’ — the old order of the High Seas along with its economical and political implications — makes speaking of one African position on the New LOS thus possible

1.4 Literature Review

The Point of departure of this paper is Rembe’s book; therefore, this work is also the starting point for an analysis of the literature pertinent to the subject.

Being written in the time before the adoption of the 1982 United Nations (UN) Convention on the Law of the Sea (1982 LOS Convention), Rembe’s work introduces the aspirations of Africa for the New LOS. He formulates the African core demands (which were congruent with those of most developing countries) for a translation of the concept of CHOM into legal principles. As opposed to most Western writers he points out the historical, cultural, social and economical background of the (African) developing countries — a crucial key to understanding the perceptions underlying the demands for the shaping of the Principle of CHOM in the future LOS convention as formulated by African States.

Without explicitly naming it, Rizwani — with his notion of non-ownership of minerals in the earth (to which also the seabed belongs) that is based on the rules of (Shiite) Islamic economy — can be seen as linking the Principle of CHOM to a religious foundation. Following the teachings of Islamic scholars and lawyers, he concludes, that these commodities — especially if their exploitation requires tremendous technical efforts — are the propriety of society and are thus — being a religious command — exempt from becoming personal property.

Although written nine years after the adoption of the 1982 LOS Convention, Fintschen is content with linking the concept of CHOM to the aspirations of developing countries for a New International Economic Order, without further elaborating on this or questioning the African position or that of the more industrialized States in regards to the translation of the Principle into binding law. In his opinion CHOM has not yet received the status of Customary Public International Law.

Likewise, neither Wolfrum nor O’Connell, Schmidt or Post elaborate on why — beyond the discretion of States — no legal obligations shall arise out of the concept of CHOM and why the demands of developing countries for a system of dirigisme as encompassed in the initial 1982 LOS Convention, proved not workable on the global scale.

The more comprehensive approach of Dupuy and Vignes, in which a combination of social, historical and cultural background of the diametrical opposed factions is presented, focuses on determining the core element of the principle — mankind. However, despite being published in 1991, this work falls short in working out the legal aspects of CHOM in the initial 1982 LOS Convention and its aftermath.

Gloria’s discussion of the notion of CHOM is similar. Satisfied with the introduction of the principle, he provides a broad insight into the changes to the 1982 LOS Convention as brought about by the 1994 Agreement without elaborating why the African demands for translating the vague concept into legally binding provisions were unable to find global acceptance.

Visionary, Anand warns as early as 1982 (before the conclusion of UNCLOS III that the controversy between industrialized and developing countries would lead to the non-implementation of the 1982 LOS Convention by the former.

Albeit writing during UNCLOS III, he fails to conclude which legal significance the Principle of CHOM shall generally have. He is content with comparing the position of the maritime powers (the industrialized nations), with the position of the underdeveloped countries. So, without taking a position himself, he simply repeats the statement of the industrialized nations that CHOM would not constitute a legal principle but merely embody a “moral commitment.” Without discussion he compares this point of view with the position of the developing countries, which argue that the conception of the Freedom of the High Seas as encompassed in the Geneva LOS Conventions of 29 April 1958 was replaced by the Principle of CHOM.

Summarizing it can be said that all latter authors, albeit praising the concept of CHOM as a major achievement in the face of the failed initial 1982 LOS Convention,^[17] are (due to its lack of legal precision) not able to explain why the implementation of the principle in the New LOS^[18] would still mark a milestone. Satisfied with the fact that the industrialized nations ‘had’ to reject the initial 1982 LOS Convention, it is not made clear in which way the failed translation of CHOM into binding obligations reaches beyond the concept of res communis omnium of the Geneva Convention of the High Seas of 29 April 1958 (1958 Geneva Convention).

1.5 Methodology

The methodological approach was based on the collection of material from the Dar-Gent Law of the Sea Centre, the University of Dar es Salaam’s main library (law collection), the faculty of law library, the library of the United Nations Information Centre Dar es Salaam and the library of the University of Cologne/Germany.

Further, the author’s own collection of literature and — to consider recent developments — newspapers, periodicals in addition to the World Wide Web are drawn as sources.

[...]

^[1] PARDO, A., Official Records of the United Nations General Assembly, UN Doc. A/C.1/PV.1515, 1 November 1967, p. 12 para. 91.

^[2] The title in full: “Mare liberum, sive de iure, quod Batavis competit ad Indicana commerica dissertation,” i.e. “The free sea, or tractate on the Dutch’s right of access to the Indian trade” an extract of his work of 1604 “De iure praedae commentarius” (ZIEGLER, K.-H., Voelkerrechtsgeschichte, Munich: C. H. Beck, 1994, p. 168.

^[3] Spain, Portugal, and partly also England (ZIEGLER, K.-H., Voelkerrechtsgeschichte, Munich: C. H. Beck, 1994, pp. 154, 168).

^[4] BROWNLIE, I., Principles of Public International Law, New York: Oxford University Press, 2003, p. 224.

^[5] KOERS, A. W., International Regulation of Marine Fisheries: A Study of Regional Fisheries Organizations, Fishing Books: London, 1973, p. 17.

^[6] BROWNLIE, I., Principles of Public International Law, New York: Oxford University Press, 2003, p. 224

^[7] In the sense of a domaine réservé (i.e. domestic jurisdiction) and combined with it the understanding of a nearly absolute sovereignty (BEYERLIN, U., “Interventionsverbot,” in WOLFRUM, R. (ed.), Handbuch Vereinte Nationen. Munich: C. H. Beck., 1991, pp. 382).

^[8] DOLZER, R., “ Wirtschaft und Kultur im Voelkerrecht,” in GRAF VITZTHUM, W. (ed.), Voelkerrecht, Berlin: De Gruyter, p. 537.

^[9] AMERASINGHE, C. F., Principles of the Institutional Law of International Organizations. Cambridge: Cambridge University Press, 2004, p. 7.

^[10] Full title: REMBE, N. S., Africa and the International Law of the Sea, Germantown: Sijthoff & Noordoff, 1980.

^[11] REMBE, N. S., Africa and the International Law of the Sea, Germantown: Sijthoff & Noordoff, 1980, pp. 205-6.

^[12] Art. 311 (6), 1982 LOS Convention

^[13] OAU Resolution on Problems of the Sea-Bed (Doc. CM/Res. 238 [XVI]), OAU Resolution on the Permanent Sovereignty of African Countries Over Their Natural Resources (Doc. CM/Res. 245 [XVII]).

^[14] Which they challenged as not affecting let alone binding the newly independent States, see: Chapter Four, The First Codification of the Freedom of the High Seas.

^[15] REMBE, N. S., Africa and the International Law of the Sea, Germantown: Sijthoff & Noordoff, 1980, p. 163.

^[16] REMBE, N. S., Africa and the International Law of the Sea, Germantown: Sijthoff & Noordoff, 1980, p. 167.

^[17] Which lacked broad support from the industrialized nations.

^[18] I.e. the 1982 LOS Convention after the adoption of the 1994 Agreement.