141
status of Antarctica,
7
the legal regime of cultural heritage
8
as well as in international
environmental law,
9
but it never became binding either through conventional or customary rules. While it is true that a specific recognition of the principle was provided by Article 1, par. 1 of the Moon Treaty,
10
nonetheless it entered into force
between few states and there are reasonable doubts on its mandatory character
beyond the narrow circle of the contracting parties.
On the contrary, the Maltese proposal strongly influenced the subsequent UN
Resolutions in this field
11
and played a leading role in the drafting of Part XI of the
United Nations Convention on the Law of the Sea (hereinafter UNCLOS).
12
In particular, on 17 December 1970, the General Assembly adopted a Declaration of
Principles
13
which declared that the sea-bed and ocean floor and the subsoil thereof
beyond the limits of national jurisdiction, as well as the resources of the area, are the
common heritage of mankind and that the exploration and exploitation of its
resources shall be carried out for the benefit of mankind as a whole, ensuring the
equitable sharing by States in the benefits derived therefrom, taking into consideration the interests and needs of the developing countries.
2 The Legal and Institutional Regime After the 1994
Implementation Agreement
The common heritage principle was a major innovation with respect to customary
law as well as the previous 1958 Geneva Convention on the High Seas,
14
both based
on the freedom of the high seas and its “first come first served” corollary.
15
It is
7 See Antarctic Treaty, Eight Consultative Meeting of State Parties, OSLO, Recommendation VIII13, 1 (a).
8 Forrest (2007).
9 Protection of Global Climate for Present and Future Generations of Mankind, UNGA, Res.
43/53, 6th December 1988, GAOR 43rd Session Supp. 29, vol. 1, 133.
10 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, UNGA,
Res. 18/68, 5th December 1979, Officials Records of the General Assembly, Thirty-fourth Session,
Supplement No. 20 (A/34/20), annex II, 1373 UNTS 3.
11 On 21st December 1968 the General Assembly decided to establish a Committee on the Peaceful
Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction—Resolution
2467 A (XXIII)—and decided to convene a third Conference on the law of the sea in 1973 instructing the above-mentioned Committee to act as preparatory body for the conference, Resolution
2750 C (XXV).
12 United Nations Convention on the Law of the Sea (Montego Bay, opened for signature 10th
December 1982, entered into force 16th November 1994), 1833 UNTS 3.
13 Resolution 2749 (XXV).
14 Convention on the High Seas, Geneva, adopted 29th April 1958, entered into force 30th
September 1962, 450 UNTS 11.
15 See Oude Elferink (2007), and Brown (1982–1983).
The Interpretative Value of the Principle of the Common Heritage of Mankind…
status of Antarctica,
7
the legal regime of cultural heritage
8
as well as in international
environmental law,
9
but it never became binding either through conventional or customary rules. While it is true that a specific recognition of the principle was provided by Article 1, par. 1 of the Moon Treaty,
10
nonetheless it entered into force
between few states and there are reasonable doubts on its mandatory character
beyond the narrow circle of the contracting parties.
On the contrary, the Maltese proposal strongly influenced the subsequent UN
Resolutions in this field
11
and played a leading role in the drafting of Part XI of the
United Nations Convention on the Law of the Sea (hereinafter UNCLOS).
12
In particular, on 17 December 1970, the General Assembly adopted a Declaration of
Principles
13
which declared that the sea-bed and ocean floor and the subsoil thereof
beyond the limits of national jurisdiction, as well as the resources of the area, are the
common heritage of mankind and that the exploration and exploitation of its
resources shall be carried out for the benefit of mankind as a whole, ensuring the
equitable sharing by States in the benefits derived therefrom, taking into consideration the interests and needs of the developing countries.
2 The Legal and Institutional Regime After the 1994
Implementation Agreement
The common heritage principle was a major innovation with respect to customary
law as well as the previous 1958 Geneva Convention on the High Seas,
14
both based
on the freedom of the high seas and its “first come first served” corollary.
15
It is
7 See Antarctic Treaty, Eight Consultative Meeting of State Parties, OSLO, Recommendation VIII13, 1 (a).
8 Forrest (2007).
9 Protection of Global Climate for Present and Future Generations of Mankind, UNGA, Res.
43/53, 6th December 1988, GAOR 43rd Session Supp. 29, vol. 1, 133.
10 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, UNGA,
Res. 18/68, 5th December 1979, Officials Records of the General Assembly, Thirty-fourth Session,
Supplement No. 20 (A/34/20), annex II, 1373 UNTS 3.
11 On 21st December 1968 the General Assembly decided to establish a Committee on the Peaceful
Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction—Resolution
2467 A (XXIII)—and decided to convene a third Conference on the law of the sea in 1973 instructing the above-mentioned Committee to act as preparatory body for the conference, Resolution
2750 C (XXV).
12 United Nations Convention on the Law of the Sea (Montego Bay, opened for signature 10th
December 1982, entered into force 16th November 1994), 1833 UNTS 3.
13 Resolution 2749 (XXV).
14 Convention on the High Seas, Geneva, adopted 29th April 1958, entered into force 30th
September 1962, 450 UNTS 11.
15 See Oude Elferink (2007), and Brown (1982–1983).
The Interpretative Value of the Principle of the Common Heritage of Mankind…