3.1.3.
The Principle of Common Heritage of Mankind as Basis
for a World Ecological Constitution
Prof. Dr. Geert Van Hoorick
1. Introduction
In this contribution we want to
show that the principle of common heritage of mankind (further: principle of common
heritage) must be regarded as one of the cornerstones
of a world ecological constitution. Firstly we will
briefly mention the sources of international law.
Then we will discuss the rights and duties of states
in relation to natural resources. Afterwards we will
come to the “piece the resistance” about the principle
of common heritage. Finally we will give a brief conclusion.
2. Sources of international law
In international law we regard
international customary law, international general
legal principles, and treaties as the sources of law.
In legal doctrine there is no uniform vision on the
hierarchy between these sources of law. It may be
assumed that the principles of international customary
law come first and that all other sources of law are
equal.
When the same behaviour is repeated
over the years (material element) and it is believed
that such behaviour is legally necessary (psychological
element), it is considered a principle of international
customary law (e.g. not to undo the object and purpose
of a treaty before its coming into effect), binding
all legal persons in international law (states, etc.).
Thus the EC Court of Justice has accepted that EC institutions
must comply with international customary law when
exercising their (legislative) competences. The EC
Court of First Instance recently even squashed an EC regulation
negating a treaty the EU had signed and that would
soon take effect, due to its violation of the international
law obligation not to undo the object and purpose
of a treaty before its coming into effect.
There are international general
principles of law that either derive from national
law, but are common to numerous states (e.g. ‘pacta
sunt servanda’), or derive from the international
situation (e.g. the principle of non-interference
in domestic situations). Where the border lies with
the principles of international customary law is often
unclear, and of limited importance.
Various terms are used to refer
to an internationally binding agreement, e.g. “treaty”,
“convention” and “agreement”. The use of the various
terms has no legal consequences. We will further stick
to the term treaty.
3. Rights and duties of states
in relation to natural resources
The development of international
environmental policy is highly influenced by the rights
and duties of states in relation to environmental
issues: the sovereignty principle, the duty to preserve
common or shared natural resources, the prohibition
of “harmful use of territory”, and the protection
of free trade. Below it is shown that these rights
and duties only offer a very partial protection to
the environment and that some do not even counteract
damaging the environment.
3.1. Sovereignty principle
States have sovereign rights, and
therefore exclusive ownership or jurisdiction, of
the natural resources in their territory (e.g. tropical
forests) and of those in the so-called exclusive economic
zone (200 nautical miles from the coastline). This
gives the relevant state the possibility to take measures
(such as enacting legislation) to preserve its natural
resources. However, it is never more than a possibility,
because according to international law the state can
basically freely exploit the natural resources that
come under its exclusive jurisdiction. This principle
of international customary law is called the sovereignty
principle. In principle, an adverse influence on one's
own environment is thus legally permitted. It goes
without saying that this fundamental attitude of international
law causes problems in cases where countries wish
to capitalise on their natural resources in a short
term.
3.2.
Duty to preserve common or shared natural resources
Some areas (such as the Antarctic
and the high seas), also called “global commons”,
do not come under the jurisdiction of states. They
are the common property of all states. Thus on the
high seas there is the freedom of open sea (comprising
the freedom of fishing, etc.).
Other natural resources (such as
international waterways) are an intermediate category
(between exclusive ownership and common property).
These shared resources are subject to the rights of
a limited number of states.
Unlike natural resources that are
governed by the sovereign rights of a state, common
and shared natural resources involve the problem that
an administrator who can stand up for its conservation,
is lacking. The recalcitrant attitude of a single
state (for instance, committing over-fishing at open
sea) may jeopardise the preservation of these natural
resources, no matter how good the intentions of other
states may be. Therefore, as a result of disputes
between states, principles of international customary
law have come about that limit the manoeuvring room
of states, depending on the conservation of these
natural resources. One might say that, according to
positive international law, states are obliged to
limit any exploitation to such an extent that the
preservation of common or shared natural resources
is not jeopardised.
By way of illustration, there is
the evolution of international jurisdiction regarding
living natural resources of the open sea. In the Bering
Fur Seals Arbitration of 1893 it was determined that the United
States did not have the right to protect seals beyond
their three-mile zone. The US argument that if other
countries commit over-exploitation, other states “have
a right to interfere and secure their share” was not
accepted. In the Icelandic Fishery Dispute of 1974, on the other hand, the International
Court of Justice confirmed that all states involved
have an obligation pertaining to reasonable use. This
means they must take into account “the needs of conservation
for the benefits of all”.
Currently, the above-mentioned
obligation is generally concretised in treaties (e.g.
the Antarctic Treaty System).
3.3.
Prohibition of “harmful use of territory”
In international law it is accepted
that in a conflict between the national sovereignty
and an international obligation, the latter takes
precedence. One of these obligations is the prohibition
of “harmful use of territory”. This principle implies
that states are prohibited from using their territory
in a manner that causes (significant) damage to the
environment of other states' territory or beyond their
jurisdiction. This principle also applies when they
allow their territory to be used by private persons.
It is also called the principle of “not harmful use
of territory” or the principle of ecological responsibility
of states, and it is a principle of international
customary law. The
prohibition of harmful use of territory can
be related to the prohibition of abuse of law or the
requirement of good neighbourliness.
In the Trail Smelter case of 1938
and 1941 this principle was applied by
arbitration in a dispute between the United States
and Canada whereby a Canadian blast-furnace caused
damage to American agriculture through its emissions
of sulphur dioxide.
In the current state of international
law, however, the principle has two important limitations.
The object of the protection is limited to the environment
pertaining to the territory of other states and areas
beyond national jurisdiction. Thus the protection
does not extend to the environment pertaining to one's
own territory (where e.g. tropical forests are located
that are not exploited in a sustainable way). Based
on the prohibition of harmful use of territory, a
non-sustainable exploitation of natural resources
or environmental damage under the exclusive jurisdiction
of a state can hardly be counteracted. Only when cross-border
effects occur, the principle can be invoked. In addition,
the obligation is essentially negative: it is aimed
at preventing, restricting and repairing environmental
damage.
3.4. Protection
of free trade
On a global scale there is free
trade between the signatories (more than 130 countries),
governed by the Treaty of Marrakech of 1994, founding the World Trade Organisation
(WTO). The WTO Treaty does not only comprise the foundation
of this organisation, but is also an umbrella framework
treaty for a number of treaties included in this treaty,
such as the 1947 General Agreement on Tariffs and
Trade (GATT). This implies, among other things, that
no discriminatory and quantitative trade restrictions
are allowed between the signatories. Article
XX of the GATT, however, does provide the possibility
to depart from this provision, for instance for environmental
protection reasons: “Subject to the requirement that
such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination
between countries where the same conditions prevail,
or a disguised restriction on international trade,
nothing in this Agreement shall be construed to prevent
the adoption or enforcement by any contracting party
of measures: (...) (a) necessary to protect human,
animal or plant life or health; (...) (g) relating
to the conservation of exhaustible natural resources
if such measures are made effective in conjunction
with restrictions on domestic production or consumption.”
As environmental
policy has gained more impact, states increasingly
challenge environmental measures entailing a trade
restriction which they consider contrary to GATT.
Especially unilateral environmental measures with
extraterritorial effect (that essentially protect
natural resources outside their own jurisdiction)
pose a problem and are readily considered contrary
to GATT by the arbitration boards.
This problem
was strikingly exposed in the judgements of the GATT
Panel of 1991 and 1994 in the famous Tuna/Dolphin
cases
[9]
. The basis of these cases is that the capture of tuna with drift nets
may also result in the unintended capture of dolphins.
The United States had issued an import ban for countries
that capture their tuna
in a dolphin-unfriendly manner. In this way they tried
to prevent dolphins, that are saved by their fishing
fleet that meets their own strict standards, from
being caught in the nets of foreign fishing fleets.
However, Mexico has successfully challenged this measure
as contrary to GATT twice (the second case pertained
to an “intermediary nation embargo”, an import ban
on tuna caught in a dolphin-unfriendly manner by third
countries). The
philosophy behind the arbitration boards' viewpoints,
is that the GATT – as a framework for trade relations
between states – would otherwise only apply between
states with equal environmental protection levels
(and this could be further extended to social law
levels, etc.). From an economic viewpoint it would
thus become rather useless.
Recently
the Tuna/Dolphin Cases had a sequel with the judgement
of the WTO Panel and the WTO Appellate Body in 1998
in the Shrimp/Turtle case
[10]
. The dispute was about an American
ban on the import of shrimps and shrimp products caught
with the aid of techniques that might endanger the
lives of turtles. It should come as no surprise that
the WTO panel reached a decision analogous to the
second Tuna/Dolphin case. These decisions however
do not absolutely rule out environmental measures
with an extraterritorial effect (as opposed to the
very first decision).
Also certain
trade-restricting European Community measures, primarily
inspired by reasons of animal well-being, are under
discussion.
4.
The principle of common heritage>>>
In this part
we will focus on the principle of common heritage.
Firstly we will show that the need for a counterweight
for the sovereignty principle. Then we will briefly
mention the underlying thoughts concerning the principle of common heritage from
the environmentalists’ viewpoint. After examining
the legal status of the principle of common heritage
in positive international law, we will discuss the
content of the principle of common heritage, and its
potentials for the development of environmental policy.
4.1.
The need for a counterweight for the sovereignty principle
We may conclude
that according
to present international law:
- the state can basically freely
exploit the natural resources that come under its
exclusive jurisdiction (sovereignty principle);
- states are obliged to limit any
exploitation to such an extent that the preservation
of common or shared natural resources is not jeopardised
(duty to preserve common or shared natural resources);
- states are prohibited from using
their territory in a manner that causes (significant)
damage to the environment of other states' territory
or beyond their jurisdiction (prohibition of “harmful
use of territory”);
- unilateral
environmental measures with extraterritorial effect
(that essentially protect natural resources outside
their own jurisdiction) pose a problem and are readily
considered contrary to GATT.
Thus in international
law especially the natural resources under the exclusive
jurisdiction of a state lack protection. There is no world government conducting an international environmental
policy that can call countries to order that overexploit
their natural resources. It is up to states and international
organisations to give birth to treaties that tackle
the problem of overexploitation of
natural resources. But the legal starting point
makes this very difficult. It is evident that it is
easier to reach an agreement on the use of common
natural resources (such as the open sea) than on the
exploitation of natural resources coming under the
sovereignty principle (such as tropical forests).
And the more states around the negotiating table,
the less stringent the text will tend to be, due to
the search for a compromise. Since an important requirement
of environmental treaties is that there are as many
as possible signatories, they tend to suffer from
a rather weak formulation.
The fact that the environment is
in such a poor state, globally, is from a legal viewpoint
to a major extent due to the sovereignty principle.
As DE KLEMM says states “may conserve, exploit
or destroy their natural resources, or allow them
to be destroyed as they wish”. It is thus highly time
for a reinterpretation of sovereignty. But the question arises how this
principle can be mitigated or how an environmental
component can be added. We think that the principle
of common heritage could play a major role in this.
It is necessary that the principle of common heritage
would be recognised as a principle of international
customary law, especially with regard to natural resources
coming under sovereign rights, as a counterweight
for the sovereignty principle.
4.2.
The underlying thoughts concerning the principle of
common heritage from the environmentalists’ viewpoint
The basic idea of the principle
of common heritage in the environmentalists’ viewpoint
is that regardless of their location, geographic spread
and legal status, certain matters must be safeguarded
in the interest of mankind. According to some, this
includes the environment in its entirety or all natural
resources, and according to others at least the wild
flora and fauna, nature areas and valuable landscapes,
as the foundations of human existence and human well-being.
The preserving of these matters must be everyone's
care and responsibility. At the same time it must
be recognised that the safeguarding of this heritage
is in everyone's interest, wherever it may be located.
These are the underlying thoughts concerning the principle
of common heritage. It implies that certain elements
of the environment are of such great interest to mankind
that they are considered a common heritage. Their
preservation is a common concern and responsibility.
4.3.
The legal status of the principle of common heritage
in positive international law
As far as positive law is concerned,
the principle of common heritage can be regarded as
a principle of international customary law,
but only in relation to outer space, the sea and,
perhaps also, the Antarctic, which are common properties.
In two treaties related to this
matters we find the principle as a legal principle.
In the Moon Treaty of 1979 is laid down that the moon and
its natural resources are the common heritage of mankind.
The Law of the Sea Convention of 1982 declares the seabed and ocean
floor and subsoil thereof, beyond the limits of national
jurisdiction, and its resources as the common heritage
of mankind. Further in the Law of the Sea Convention is referred to this provision
as “basic principle relating to the common heritage
of mankind”.
In the Antarctic
Treaty System, on the basis of the Treaty on Antarctica
of 1959
[16]
, the principle of common heritage is not
laid down explicitly. However one may argue that the
more recent texts, as the Protocol on Environmental
Protection of 1991
[17]
, in which the signatories proclaimed
Antarctica a “natural resserve, devoted to peace and science” and provide for an
absolute ban on the exploitation of mineral resources,
make an application of the principle of common heritage.
In another
treaty one refers to the term, without provoking legal
consequences. This is in the African Charter on Human
and Peoples’ Rights of 1981, that declares
that all peoples shall have the right to their economic,
social and cultural development “in the equal enjoyment
of the common heritage of mankind”.
4.4.
The content of the principle of common heritage in
positive international law
In positive
international law, so far as the relevant provisions
of the Moon Treaty and the Law of the Sea Convention
are concerned, the principle of common heritage contains
four undisputed elements in relation to to relevant
natural resources:
- non-appropriation;
- international
management;
- benefit-sharing;
- reservation
for peaceful purposes.
4.5. The legal
status of the principle of common heritage related
to natural resources in general
When we look
at the principle of common heritage related to natural
resources in general in treaties and soft-law, we
see a rather diffuse picture.
In a lot
of treaties and soft-law in the environmental field
from the period 1970-1980 one refers to the principle
of common heritage, but merely not in entire terms.
Here we can mention the Declaration of Stockholm of
1972 (here one
speaks from the “heritage” of wild faauna and their habitats) and the
preambles of the
Ramsar Convention of 1971 (that considers
waterfowl as an “international
natural resource”), the Bonn
Convention of 1979 (that considers
the resources of earth as an “heritage”) and the
Bern Convention of 1979 (that considers
the wild flora and fauna as an “natural heritage”). Only the
World Heritage Convention of 1972 is very
explicit in its preamble (stating that the cultural
and natural heritage of exceptional value must be
preserved as part of the “world herittage of mankind”). The menttioned treaties provide also for
a system of preservation and sustainable use of the
natural resources that are covered by the relevant
texts.
In more recent
treaties and soft-law one notices that the states
are far more reluctant to accept the principle of
common heritage, even in preambles. Here we can mention
the Rio Declaration of 1992, the Forest
Declaration of 1992, and the
Biodiversity Convention of 1992. In the
preamble of the latter one avoids the term heritage
(in this text one considers the preservation of biological
diversity only as a “common conccern”).
Also one
refers rather explicitly to the principle of common
heritage in the two major EC directives about nature
conservation, this is in the preamble of the EC Birds
Directive of 1979 (that considers migratory birds
as a “common heriitage” and bird pprotection as a “common conccern”) and the EEC Habitats Directive of 1992 (that
states that endangered habitats belong to the “natural herritage of the European Community”). Also has attorney-general Fennelly in the recent case of the Danish
Bees before the European Court of Justice stated that the preservation of
biological diversity is a “common concern of mankind”.
In legal
doctrine the legal status of the principle of common
heritage related to natural resources in general,
is uncertain and disputed.
In environmental law doctrine some
authors consider the principle of common heritage
as a principle of international customary law, while others strongly reject
this thesis. The latter also make a distinction
between the concept of common concern, that they apply
to natural resources that come under the exclusive
jurisdiction of a state, and the concept of common
heritage, that they only see in relation to common
natural resources.
We think that such a distinction
is rather artificial and that both concepts are the
emanation of the (same) principle of common heritage.
However what differs is the legal status of the principle
of common heritage in positive international law.
The principle of common heritage is certainly a legal
principle in relation to outer space, the sea and,
perhaps also, the Antarctic. It is questionable whether
it is already a legal principle in relation to natural
resources in general, owing to lack of definition,
state practice and widespread acceptance. But we think
that could be a matter of time. One can assume that
it will become a legal principle in the near future
in relation to the wild flora and fauna, nature areas
and valuable landscapes, etc. For this thesis one
can refer to the many signatories of the World Heritage
Convention of 1972, the statements in the preambles
of the mentioned nature conservation treaties and
EC directives, especially the World Heritage Convention
of 1972, the EC Birds Directive of 1979 and the EC
Habitats Directive of 1992, the insertion of environmental
rights in the constitution of many countries, and
developments in national environmental legislation
towards the principle of common heritage.
4.6.
Towards a more general content of the principle
of common heritage
In the vocabulary
of the common heritage of mankind lies a
potential bridge to environmental issues.
The term “common” is to be seen a as a functional rather than
a territorial one (e.g. migratory birds don’t belong
to a certain territory) and is to be understood as
not necessarily concerned with the ownership of the
area where natural resources are found. It expresses
the interest, concern and responsibility that mankind
has in safeguarding the heritage. This implies that
there is a possible place for the principle of common
heritage besides the sovereignty principle, applying
to natural resources, even when they are the exclusive
property of a state. The word “heritage” should not necessarily be associated
with inheritance and patrimony (as in translations
into some other languages, such as French: “patrimoine”).
Some authors restrict the term to the wild flora and
fauna, nature areas, etc. wherever they may be located
(cf. the mentioned treaties, see above). Others extend
the term to a high quality air, an ecologically rich
environment, etc. However the principle of common
heritage can never play a major role as legal principle
if one do not restrict it to those natural and cultural
resources which globally affect the survival and welfare
of mankind (e.g. the tropical forests, the
polar regions, the endangered species of wild flora
and fauna, etc.).
The notion “mankind” refers to the present and future generations
(or international community), so bringing in the intra-
and intergenerational equity in the concept, that
can also be found in the notion of sustainable development.
The concept of common heritage
should be freed from being equated solely with the
exploitation of natural resources beyond national
jurisdiction. The key elements in the principle of common heritage should be:
-
sustainable management and use; The non-appropriation
clause can hinder successful implication of the concept
in ecologically important global commons. In the cases
of rain forests and the atmosphere, the principle
of common heritage can be fruitfully applied without
requiring states to relinquish their sovereignty over
their territories and air spaces. What is important
is that states should have the use non-exclusively
for the benefit of present and future generations,
in other words that they have only the right to make
sustainable use and the duty to sustainable management.
In other words, states should not exploit and destruct
vital life support ecosystems exclusively for their
development at the expense of the rest of mankind
or future generations;
-
benefit- and burden-sharing; There is a inequality
in the geographic spread of common heritage and in
income among nations. The aim of benefit- and burden-sharing
is to rectify this inequality. We think especially
burden-sharing is important, as much of the common
heritage is situated in developing countries. The
principle of common heritage not only imposes the
obligation to preserve the common heritage on states
wherein these are situated but also places compensatory
financial obligations to the international community
to support the successful implementation of the mentioned
obligation. The application of the principle of common
heritage thus should be in accordance with the principle
of common but differentiated responsibility;
-
reservation for peaceful purposes.
Another
key-element according to BASLAR is planetary administration.
We think that this element is more a matter of implementation
rather than part of the concept of common heritage
itself. We agree however with the author that this
is a very important issue. The interests of mankind
can only be protected from the avaricious attacks
of national governments by establishing a strong supranational
authority whose power surpasses those of states. This
authority should be empowered with the identification
of the common heritage. The preservation and exploitation
of the common heritage should be controlled by this
authority. This equally means that states in whose
territories a common heritage is situated should be
accountable before this authority. But what is also
important is that states yield the right to exclusive
use, over a particular common heritage for the sake
of the common interests of mankind.
Another
important implementation measure is that every state
should have locus standi against other states not
respecting their duties under the principle of common
heritage.
4.7.
Potentials of the principle of common heritage for
the development of environmental policy
The principle
of common heritage, once it would become a legal principle,
has a very potential for the development of environmental
policy.
States would
have the duty to co-operate for the sustainable management
and use of the natural resources, including these
that come under national jurisdiction (e.g. virgin
woods). An isolationist attitude, like the United
States momentarily have in the climate change issue,
would contravene this duty. Thus the acknowledgment
of the principle of common heritage would facilitate
more the development of
environmental treaties.
States which
destroy or exploit natural resources, wherever they
be located, in a non-sustainable way, could be held
responsible by other states.
Unilateral
trade restrictions against states doing such wrongful
acts, could be justified calling upon the principle
of common heritage.
5.
Conclusion
In this
contribution we proved that, when drafting a world
ecological constitution, the principle of common heritage
– with a new jacket – should be part and indeed one
of the cornerstones thereof. It can only be a step
forward towards the acknowledgment of the principle
of common heritage as principle of international customary
law by solving the mentioned problem of lack of definition, state practice and widespread acceptance.
For the international community and the present and
future generations, such developments are highly needed. But whether the principle of
common heritage will become a legal principle or not,
for the foreseeable future the principle will have
to be implemented through the co-operation of states.
08.05.2002
