Cries of the Sea : World Inequality, Sustainable Development and the Common Heritage of Humanity

A treasure lies at the bottom of the oceans. This treasure takes the form of a legal and ethical principle which may illuminate the potential for an enriching international community in a world of growing disparities. It is the principle of the Common Heritage of Humanity. The 1982 United Nations Convention on Law of the Sea delineated an Area and then proclaimed the Area and its resources 'the common heritage of mankind'. The author suggests that the terms 'common', 'heritage', and 'humanity' invite a larger perspective on the law underlying the Convention. Cries of the Sea provides a unique view of 'the deep blue sea' through the lens of the politics of international ocean law and policy and in particular through the exposition of the Common Heritage of Humanity as a fundamental principle of international law. The book explains why - and how - the Common Heritage principle constitutes an indispensable ingredient in any global programme for sustainable development. Legal philosophers and practitioners alike, in the ocean arena and beyond, will find that this work offers an intriguing intellectual and moral challenge. This book received the first Arvid Pardo Prize for outstanding scholarship on the Law of the Sea. Title Page 3 Copyright Page 4 Table of Contents 7 ACKNOWLEDGEMENTS 13 ABBREVIATIONS 15 INTRODUCTION 21 PART 1 - INTERNATIONAL LAW IN AN UNEQUAL WORLD 33 I INEQUALITY IN THE INTERNATIONAL COMMUNITY 35 A. Widening Global Disparities on the Large 36 B. Wither Global Inequality? 42 C. International Law 48 D. Inequality 51 E. Growing Disparities 56 F. The International Law of Global Disparities 61 Conclusion 65 II WORLD INEQUALITY AND THE 1982 UN CONVENTION ON THE LAW OF THE SEA 69 A. Domains of Disparity in the Law of the Sea - Old and New 69 B. Disparity and the 1982 Convention: Preambular Aspects 73 C. UNCLOS III: The North-South Agenda in the Traditional Domains 78 1. Institutional Context 80 2. Substantive Law Context 87 D. The North-South Dialogue in the Second Committee of UNCLOS III: Global Wealth Redistribution Through Extended Coastal State Jurisdiction 91 1. The Significance of the EEZ in Global Wealth Redistribution 93 2. The Nature of the General Preference Given to Developing States Concerning Fisheries Access to the EEZ 95 3. The Needs and Interests of Developing Land-Locked and Geographically Disadvantaged States 97 E. The North-South Dialogue in the Third Committee of UNCLOS m: Legal Aspects of International Cooperation for Development and Global Sharing in the Oceans 102 1. Protection and Preservation of the Marine Environment 103 2. Marine Scientific Research 109 3. Development and Transfer of Marine Technology 115 4. International Cooperation and Extended Coastal State Jurisdiction as Complementary Principles of the New Ocean Order 122 F. UNCED and Equality of Capacity for Rights and Obligations: The Customary Law of Capacity-Building in the Oceans 128 1. Revitalizing the Unrealized Promise of the EEZ 129 2. From UNCLOS to UNCED: Transforming the Legal Framework of Global Inequality 133 3. The Legal Basis of Capacity-Building for Sustainable Development in the Oceans 139 4. The International Law of Global Disparities versus The International Law of Sustainable Development 160 Conclusion 170 PART 2: - THE COMMON HERITAGE OF HUMANITY AND WORLD INEQUALITY 177 III THE COMMON HERITAGE OF HUMANITY: A LEGAL PRE-HISTORY 179 A. The Common Heritage of Humanity as an Invoked Principle in the 1982 UN Convention on the Law of the Sea 185 B. A Question of Frontiers: The Area and its Resources 187 1. Towards Internationalizing the Deep Seabed 190 2. The Stakes Behind Internationalization 197 3. International Law on the Margins of the Deep Seabed 200 4. The Omnipresence of the Continental Shelf 225 Conclusion 239 IV BEYOND MARE LIBERUM AND MARE CLAUSUM: THE COMMON HERITAGE OF HUMANITY AS A FUNDAMENTAL PRINCIPLE OF INTERNATIONAL LAW 247 A. The Common Heritage of Humanity Principle and Part XI of the 1982 Convention 252 1. Textual Overview 252 2. The Severability of the Common Heritage of Humanity Principle from the Seabed Mining Regime 257 3. The Special Legal Status of the Area and the Principles Governing the Area 259 B. The Common Heritage of Humanity Principle as Plea for Development and Peace 267 1. New Deep Sea Resources and The Development Imperative 268 2. Developing Countries and the “Race to Grab” the Deep Seabed 271 3. Global Distributive Justice and the Question of Continental Shelf Outer Limits 276 4. The Question of Limits (Again) and the Common Heritage of Humanity Principle 284 5. The Programmatory Law of the Common Heritage of Humanity 315 6. The Reservation of the Common Heritage for Peaceful Purposes 333 C. The Common Heritage of Humanity and the Principle of Benefit-Sharing 340 1. Benefit of Humanity as a Rule of Decision 343 2. Benefit of Humanity and the Special Needs and Interests of the Developing Countries 346 3. The Interests and Needs of Developing Countries under Part XI of the 1982 Convention 349 D. The Common Heritage as Environment 352 1. Overcoming a Sectoral Approach to Marine Environmental Protection 354 2. Existing Environmental Law for the Area and its Resources 357 3. International Responsibility under the Environmental Law of the Area and its Resources 360 4. Scientific Research and the Environmental Protection Regime for the Area 362 5. Institutional Aspects of Sustainable Development of the Area and its Resources 367 Conclusion 369 V THE INSTITUTIONAL ELEMENT OF THE COMMON HERITAGE PRINCIPLE: TOWARDS AN INTERNATIONAL ORGANIZATION FOR SUSTAINABLE DEVELOPMENT? 379 A. The Institutional Significance of the Common Heritage of Humanity Principle 383 1. Pre-1970 Developments: The Basic Issue in International Organization Defined 383 2. The Issue of International Machinery in the Seabed Committee 390 3. The Developing Countries: The Common Heritage of Humanity Principle as a New Modality of International Organization 392 4. The Industrialized Countries: An International Agency to Promote and Guarantee Assured Access to Seabed Mineral Resources 396 5. The Impact of the Declaration of Principles Resolution on the Original Positions on International Machinery 400 B. Institutional Development and Innovation for the Area in UNCLOS III: Eroding the Moral Force of the Common Heritage of Humanity Principle 409 1. Activities Contemplated by the Regime 409 2. Assured Access to Nodules Under the Parallel System 415 3. Decision-Making in the Execution of a Design 427 C. The 1994 Implementation Agreement: Universality and Sacrifice in the Law of the Sea 441 1. Towards a Universal Interest in the Universality of the Convention 446 2. Stability and Change in the Deep Seabed Regime 449 3. The 1994 Implementation Agreement as Process 458 4. A Renegotiated Part XI and the Old Politics of Assured Access 464 Conclusion 472 VI GENERAL CONCLUSIONS: 481 The International Law of Sustainable Development and the Future of the Common Heritage Principle in a World of Growing Disparity 481 APPENDIX 495 Declaration of Principles Governing the Sea-bed and the Ocean Floor and the Subsoil Thereof Beyond the Limits of National Jurisdiction 495 United Nations General Assembly Res. 2749 (17 Dec 1970): 495 REFERENCES 501 INDEX 555