An Intellectual History of the Common Heritage of Mankind as Applied to the Oceans

This thesis traces the development of the concept of the common heritage of mankind from its introduction by Arvid Pardo, the Ambassador to the United Nations from Malta, in 1967 to its translation into policy in the 1982 Third United Nations Convention on the Law of the Sea. The thesis pays particular attention to the people and ideas that influenced Pardo and the historical period of the late 1960s in which the common heritage idea for the deep seabed was articulated. It was a period of international idealism and a brief period in which the United States President, Lyndon Johnson, lent his grandiose rhetoric to the idea of managing the deep oceans as a common heritage. However, the problem was that the idea could not be translated into workable public policy for international cooperation in mining the deep seabed. The idea became a vehicle for a number of groups and individuals including the Third World nations that wanted to make it a part of their demands for ·a new economic order. Although a seabed mining regime was negotiated and is in place in the treaty, the United States and some other developed nations refused· to sign the treaty because of the seabed regime. Other events that hurt the process of turning the common heritage idea into workable policy were the decline in demand for minerals and a global recession that made such an expensive enterprise less attractive.

Pardo and the historical period of the late 1960s in which the common heritage idea for the deep seabed was articulated. It was a period of international idealism and a brief period in which the United States President, Lyndon Johnson, lent his grandiose rhetoric to the idea of managing the deep oceans as a common heritage. However, the problem was that the idea could not be translated into workable public policy for international cooperation in mining the deep seabed. The idea became a vehicle for a number of groups and individuals including the Third World nations that wanted to make it a part of their demands for ·a new economic order. Although a seabed mining regime was negotiated and is in place in the treaty, the United States and some other developed nations refused· to sign the treaty because of the seabed regime. Other events that hurt the process of turning the common heritage idea into workable policy were the decline in demand for minerals and a global recession that made such an expensive enterprise less attractive. This thesis is also an examination of how a small group of visionaries were able to promote an idea and place it on a global agenda. Despite the fact that seabed mining has yet to take place and the treaty remains unratified ten years after its completion, the general issues that the common heritage idea raised has not evaporated. International environmental diplomacy today depends on nations devising ways to manage resources in common such as the ocean, rainforests and the atmosphere. This diplomacy also depends on the ability of the more wealthy industrialized nations to cooperate with the poorer, less developed countries. This form of cooperation failed with seabed mining. But it must eventually succeed with more vital global resources.

Acknowledgements
The idea for this thesis grew out of a conversation at a local pub that I had with Marie-Christine Aquarone and Rennie Lieber. I was not thrilled with an earlier thesis idea and realized I was more interested in the people who created this unusual field of Marine Affairs. Rennie noted that none of the required courses in the master's program seemed to delve into who these people were. I mentioned that I was interested in writing a biography. Marie-Christine suggested I write a marine affairs biography. With the help and historical perspective of Lewis Alexander and some sound academic advice from Lawrence Juda, the project evolved into an intellectual history of an idea and its creators.
I would also like to thank Maury Klein who helped me approach the subject as a historian. His advice on biography also inspired me at various points when I needed it.
And I thank my friends in Vermon. t Pardo drew upon an ancient belief that the ocean belonged to no man, no nation, but to all people of all nations when he shaped the common heritage concept. This belief was 1. United Nations, General Assembly, (Doc. A/C.l/PV. 1515, 1516, 1 November 1967. 2. United Nations, General Assembly, Res. 2749(XXV), 17 December 1970 taken for granted when the ocean was a dangerous and remote place. But as technology began to remove the barriers to this no man's land, Pardo believed the chances increased that powerful maritime nations would take control of increasing amounts of ocean space and ocean wealth. It was this concern that set the stage for a new definition of the ocean as the common heritage of mankind. In 1970, the United Nations General Assembly passed a resolution at the urging of Pardo that defined the common heritage as: "the sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, as well as the resources of the area . .. "3 Technology, primarily improved equipment to extract oil from beneath the continental shelf and new instruments to examine the deep sea, provided the backdrop for the common heritage concept. However, scientists did not play as significant a role in developing policy for the deep seabed as political leaders. But the political leaders drew extensively of the writings of John Mero, a California engineer, who was one of the first to proclaim a great wealth of minerals in the seabed .4 His ideas, which would later come under scrutiny and criticism,5 were picked up by nonscientific world-stage players and used extensively to spearhead the common heritage concept in the 1970s. 3. Ibid. 4.· John Mero, The Mineral Resources of the Sea (Amsterdam: Elsevier, 1965). 5. Markus Schmidt, Common Heritage or Common Burden? (Oxford: Clarendon Press, 1989), p. 12. This thesis focuses on the individuals who articulated, defined and promoted the principle of the common heritage of mankind and applied it to the world's oceans. The motivations of these players varied. For some, the concept was a vehicle to achieve the so-called New International Economic Order6 by devising a way to include the emerging nations as managers of the ocean's deep seabed. It was the first significant test of this movement.7 For others, the common heritage was an old idea that had not worked in other places, but might be successfully applied to a new place -the deep seabed.8 For certain members of the nongovernmental organization movement, the common heritage was a way of achieving world federalism and a step toward world peace. 9 For others, it was a way of trying to distribute the wealth of the oceans in a more egalitarian manner. For some who were acting out roles assigned by their governments, it was a bargaining tool, a concept they might not have agreed to at any other time, but one that could be used as quid pro quo to get Third World nations· to agree to other provisions of the 1982 United Nations Convention on the Law of the Sea.1 o 6. P.N. Agarwala,The New International Economic Order: An Overview (New York: The hypothesis of this study is that the doctrine of the common heritage of mankind was a vehicle for many other goals -goals that were not always grounded in political, economic or technological reality. The political reality during the period when the idea was introduced was that there were enormous philosophical differences between some industrialized nations and the majority of developing countries on how much political power an international organization should have over what would be a business enterprise, mining the seabed for minerals. These differences made cooperation between countries with divergent philosophies difficult to negotiate. The doctrine was also touted at a time when industrialized nations feared a shortage of land-based minerals and feared they might be held captive by OPEC-like mineral cartels.11 These countries were looking for a new source of minerals that might be extracted from nuetral territory.
However, the metal shortage abated by the 1980s when metal prices dropped worldwide, making seabed mining much less viable and an international mining venture less urgent. The concept was also based on an assumption that the technology to mine seabed minerals would become more accessible to developing countries in the near future. Time proved that this was unrealistic because seabed mining has not been done by developed or developing countries. 1 i. U Cong., 2nd sess., 1 March 1978. The mining regime that developed at UNCLOS from the common heritage concept was not equipped to weather the rapidly changing nature of world politics or world economics.
The regime included production controls and allowed for extensive control of private industry by the international organization. In the last two decades, criticism of government intervention in the market-place has grown. The fall of communism in Eastern Europe in the 1990s has caused policymakers to question the political viability of state-controlled economies. This general critique has helped to discredit the mining regime.
The people who first articulated the common heritage concept to the world, Arvid Pardo and Elisabeth Mann Borgese, who was to serve as an Austrian delegate to UNCLOS,  Materials, vol. XXI, no. 6, (November 1982): p. 1279. treaty and have yet to sign the convention. This has left international marine policy with an unsuccessful doctrine.
A major goal of the thesis is to set a precedent by writing an intellectual history that identifies the thinkers who This study is significant because few writers have examined the people behind the ideas that form the foundation of marine aff airs.13 Yet in other fields, the thinkers become 13. Biographies  well known not only to those in the field but to the outside world. The public has learned about the fields of science, law, philosophy and history by examining inspirational leaders, their motivations and their choices. The author hopes that applying this same approach to a selected marine affairs doctrine will assist not only the academic community, but the general public to better understand the evolution of marine affairs.
Some of the questions that are posed in this thesis are:  In the closing sentences of his speech, Johnson called the ocean floor a "legacy to all humans." We greatly welcome this type of international participation. Because under no circumstances, we believe, must we ever allow the prospects of rich harvests and mineral wealth to create a new form of colonial competition among the maritime nations. We must be careful to avoid a race to grab and to hold the lands under the high seas. We must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings.13 On the same day that Johnson delivered this speech, he also issued Effective Use of the Sea Whereas, new technology and oceanography have revealed the possibility of exploitation of untold resources of the high seas and the bed thereof beyond the continental shelf and more than half of mankind finds itself underprivileged, underfed and underdeveloped, and the high seas are the common heritage of all mankind .1 7 Pardo disagreed with the idea of placing the United Nations in charge of this vast territory and made this clear m his speech. In this way, he deviated from a number of thinkers.
Calling United Nations oversight impractical, Pardo thought it "hardly · likely that those countries that have already developed a technical capability to exploit the seabed would agree to an international regime if it were administered by a body where small countries, such as mine, had the same voting power as 17. Lewis Alexander, ed., International  Pardo also laid out in clear language (I) the reasons for a new concept in ocean management, (2) the danger in not creating a new legal concept for governing the oceans (3) the specific advantages of exploiting the seabed and ( 4) a general design for a regime to govern the ocean as a common heritage of mankind.
Pardo noted in his speech that the nations of the world had accepted the concept of freedom of the seas as defined by Hugo Grotius in the seventeenth century .19 This concept covered the uses of the water component of the seas, but Pardo believed it did not address the seabed beyond the limits of national jurisdiction.
Around the use of the surface and upper layers of the seas a complex body of international law has developed; but the depths of the oceans and the ocean floor were of little interest until little more than a hundred years ago when the question of laying transatlantic cable came to the fore.20  1 November 1967. 19. Gerhard von Glahn, Law Among Nations, 5th Edition (London: Macmillan Publishing Co., 1986, p. 31. 20. U.N. ( Doc. A/C.l/PV.1515), 1 November 1967 maintained the treaty's definition gave nations freedom to broadly interpret how far the continental shelf extended and thus the extent of a nation's right to exploit the resources of the shelf. National territory at the time Pardo gave his speech extended for many, but not all nations, to a three-mile territorial sea. Beyond this, the 1958 treaty gave a nation rights to exploit the natural resources of the continental shelf, but did not grant sovereignty over the shelf to coastal states. 2 1 Pardo referred to the following section of the 1958 convention when he argued that it left a dangerous ambiguity and left room for international disputes over where a nation's shelf ended and the seabed began .
... the term continental shelf is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond the limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas . .. 2 2 Under such a definition, technology . and the ability to exploit would define where the shelf ended and the seabed began. Obviously it gave clear advantages to nations with superior technology and Pardo was worried it might encourage these nations to make claims to the deep seabed area.
Pardo urged that a new legal framework for the vast ocean seabed should be established before governments used 21. 1958 United Nations Conference on the Law of the Sea, Convention on the Continental Shelf, Art. 2, 29 April 1958, Treaties and Other International Acts Series 5 5 7 8 . 22. Ibid. Art. 1. current international law to justify occupation, military buildup, nuclear weapons installation or commercial exploitation of the seabed. He wanted to devise a new concept for the ocean that differed from the legal concept of res nullius which formed the philosophical foundation for the concept of freedom of the seas. Under the concept of res nullius, there are parts of the globe that are owned by no one. But internationally accepted legal methods exist to gain sovereignty over these areas. The primary method is through discovery and occupation. 23 The concept of res nullius ushered in the age of exploration and allowed Europeans to claim continents and colonize peoples who did not have the same form of written, international law.
Pardo's idea of the common heritage of mankind more closely resembled the Roman legal concept called "res communis." Under the concept of res communis, an area may not be appropriated and the use of it belongs equally to all people.24 This is the philosophical underpinning of the Unfortunately the present juridical framework clearly encourages, subject to certain limitations, the appropriation for national purposes of the sea-bed beyond the geophysical continental shelf. As I have already had occasion to mention, the sea-bed and the ocean floor are land. There are five generally recognized modes of acquiring land in international law: cession, subjugation, accretion, prescription ~nd occupation. 27 In this statement, Pardo criticized the international law that allowed nations to acquire land. Cession is the "formal transfer of title from one state to another.28 Subjugation is the "firm military conquest" of a people and their territory.29 Roman law defined accretion as the gradual deposit of soil by a 26. Arvid Pardo, The Common Heritage: Selected Papers on Oceans and World Order 1967-1974(Malta: Malta University Press, 1975, p. 67. 27. U.N. (Doc. A/C.l/PV. 1515), 1 November 1967. 28. von Glahn,Law Among Nations,p. 318. 29. Ibid.,p. 638. river or ocean along the shore. The law gave the owner of the river bank or shore the right to the newly accreted land .3 O Prescription means that a "foreign state occupies a portion of territory claimed by another state, encounters no protests by the owner, and exercises rights of sovereignty. "31 Occupation is a situation in which a nation takes over, occupies territory and eventually owns the land.
Pardo urged that no one be allowed under old rules of international law to own the seabed. He wanted to introduce a concept in international law that promoted equality and social welfare for poorer nations in current and future generations. 3 2 This was a significant departure from international law concerned with traditional security issues. Pardo's concept of the common heritage was part of a larger trend in international relations that would continue into the 1970s. Welfare issues such as sharing resources emerged at this time because it was possible to pay less attention to security issues. The East-West detente gave nations a chance to shift focus toward issues such as the ocean and the environment. 3 3 To stress his belief in the need for new law and the danger of inaction, Pardo said that the United States had already. begun leasing tracts of underwater land well beyond 30. Ibid.,p. 316. 31. Ibid.,p. 317. 32. For more information on the shift in international legal philosophy from traditional security to human welfare concerns see Julius Stone, Visions vol. 28, no. 2 (1974): p. 2 territorial waters. He warned that this trend would continue unless an international body established a new legal regime to protect the deep seabed from creeping national claims.
The process has already started and 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. The consequences will be very grave: at the very least a dramatic escalation of the arms race and sharply increasing world tensions, caused also by the intolerable injustice that would reserve the plurality of the world's resources for the exclusive benefit of less than a handful of nations. The strong will get stronger, the rich richer and among the rich themselves there would arise an increasing and insuperable differentiation between two or three and the remainder. Between the very few dominant Powers, suspicions and tensions would reach unprecedented levels. Traditional activities of the high seas would be curtailed .3 4 One weakness of Pardo's speech was that he cited only one source -Mineral Resources of the Sea , by the American engineer, John Mero, when estimating the specific economic advantages of seabed mining.
In his book Mr. Mero states that manganese ~odules could be mined, transported to port and processed at a cost of some $28.5 per ton, as compared to gross commercial value of recoverable metal content ranging from $40 to $100 per ton.  35. Ibid. 22 The press release issued by the United Nations to newspapers noted that Pardo's estimated $5 billion could be raised by 1975 from seabed mining.36 This figure was Pardo's extrapolation of Mero's estimates.This was a weak part of the speech because the knowledge about the seabed and its resources was in its infancy. Within a few years, Pardo's predictions would seem ridiculously optimistic.
In the final section of his speech, Pardo delineated for the first time the components of the common heritage concept as applied to the deep seabed. First, it was a concept that provided for exploitation of a natural area to benefit all mankind. Second, the area was to be used exclusively for peaceful purposes. Third, the international community was to have jurisdiction, but not sovereignty over the common heritage of mankind area and resources. An agency that represents the international community would act as a "trustee for all countries over the oceans and the ocean floor to regulate, supervise and control all activities on or · under the oceans and the ocean floor, " Pardo said.37 The concept would promote exploitation of resources in the interests of mankind, with  seas and did not suggest that be replaced. "All states have the principles encouraged international cooperation in science, but 58. Ibid, p. 4. 59. Ibid., p. 3. did not take the step that Pardo had taken of saying that scientific information compiled by one country on the deep seabed should · be the property of all countries.
Pell said that if the principles were followed, they would give "the edge to those nations who now are most technologically advanced and thus most able to take advantage of the resources. marry although she had never met him. 4 Borgese's deliberate marriage to a husband much older than her in the face of parental disapproval was early evidence of her strong will.
Also, her attachment to the abstract ideas that were a part of Guiseppe Borgese's books became a personal trademark that would later be one of the reasons the idea of the "common heritage of mankind" so intrigued her. of Chicago that they draft a world constitution. Guiseppe Borgese said at the time: "A world constitution is needed . .. the deadline being the day, unpredicted but not remote, when the atomic secret will be in other hands. We do not think a world constitution or a preliminary project will be drafted by bureaucratic or diplomatic bodies. Their motions are inhibited by statutory routines; their initiatives, even in this most open-minded of nations, must stop at the dogmatic wall of national sovereignty. 9 These words would be echoed by the work and thought "The ocean is a laboratory for the development of new and more rational methods of resource management...In the post-industrial era, ocean space may well become the fulcrum of a world economy, just as each semi-enclosed or enclosed ocean basin will be much more than in the past, the fulcrum of regional economic activities ... What Sandars, ed., The lnslilules of Justinian (Westport, CT: Greenwood Press, 1922), p. 90.
14. Borgese interview, 1 Nov. 1991. we are witnessing is a shift from a heartland-continentcentered world view to an ocean-centered world view." 1 5     Logue also used his newsletter to prod Third World leaders to take a strong role in promoting the common heritage.
"Unless the Third World takes a major responsibility for reviving the common heritage of mankind there is every reason to believe that the concept and the bright promise inherent in it will die," Logue wrote as early as 1975.46 Ii is difficult to assess the effect these fledgling nongovernmental organizations had on the development of the Borgese tried to broaden the constituency for the common heritage concept by inviting international thinkers to annual conferences. Although these conferences were sometimes criticized as glorified international cocktail parties, they did produce a body of writing that spread the philosophy and the rhetoric of the common heritage. These conferences also connected the ocean with other global issues such as disarmament, population issues, pollution and hunger .4 7 The small membership of the NGOs did not seem to deter them from sponsoring numerous forums and producing volumes of written material during and after the conference.  because the NGOs had no counterparts from the Third World, they can be compared to abolitionists of the 19th centurycertain they knew what was right for a part of the world with which they were not intimately familiar.
As with the abolitionists, these "do-gooders" were not always understood or respected even by the people they claimed to be supporting.
But the small band of NGOs did raise a strong voice for They desired some power over international trade .3 Forces favoring what became known as the NIEO had been gaining momentum since the end of colonial rule in Africa, Asia and Latin America. By the late 1960s, these countries had begun to challenge the classic economic system that dominated the global economy. The new nations believed they had obtained political freedom, but were not economically free of their colonial masters. They saw the laissez-faire economic system as promoting a form of neo-colonialism in which Third World countries continued to supply the developed world with raw materials, while being forced to pay high prices for finished products .4 As these nations watched their international debt grow, they saw the gap between the wealthy, industrialized nations and their countries widening.  Developing countries trumpeted the common heritage of mankind regime while they also took up the cause of extending national jurisdiction in the ocean. By supporting both a highly international concept and a nationalistic concept of extending jurisdiction, the developing countries were ideologically conflicted.17 What they truly wanted was to control more of the world's resources and they looked for the most expedient ways to achieve this control.  Boleslaw Boczek has concluded that the "rhetoric of the NIEO" was used to mask pure and simple "nationalism. They also talked about forming cartels in order to gain more economic power in international trade.24 They looked to the Arab Organization of Petroleum Exporting Countries' embargo 22. Ibid.,p. 14. 23. Lewis Alexander, Navigational Restrictions   to address concerns about dwindling fisheries, the marine environment, and oil exploration. Initially, American policy- 3. U.N., G.A., Res. 2749 vol. 1, no. 2 (1990): p. 9. Some developing countries feared seabed mining would create a bonanza of minerals that might depress prices of their mineral exports. These fears, which proved unrealistic because seabed mining never developed, were based on the original estimated total volume of manganese nodules -some 1.5 trillion tons. However, the figure ignored market forces that would control production and the high cost of obtaining even a small fraction of these seabed minerals. I 1 · The initial U.S. plan, called the Nixon proposal, for a seabed regime began with the statement that the seabed should be considered the common heritage of mankind.12 Article · 5 of the proposal stated that an International Seabed Authority shall use revenues from exploration and exploitation of the mineral resources "for the benefit all mankind, particularly to promote the economic advancement of 10. Ibid.,p. 144. 11. Richardson  advanced nations that were engaged in seabed mining. The proposed council would also include 18 additional representatives, 12 would be from developing countries and at least two must represent land-locked or shelf-locked nations.15 The council was to draw up budgets and submit these for approval to the assembly. A tribunal would be created to resolve disputes, including disagreements over claims to ocean mining sites.
The proposed treaty included protection for mining companies that had already begun exploration and exploitation when the treaty was enacted. This was a concern of the newly developing American mineral-mining industry.16 The treaty called for payments to the International Seabed Authority to be based on production and for there to be a rental fee for the such as geography .18 The seabed committee was also trying to design the world's first economic joint venture that would be run by an international organization. And seabed mining did not have the emotional immediacy that controlling existing pollution in the ocean had or that determining where fishermen could throw their nets has had throughout history. It was also not a top priority for the United States.
Another factor that slowed negotiations was declining interest in seabed minerals which occurred · as the decade progressed and many people concluded they were not the treasure at the end of the rainbow. 19 In the course of the decade, scientists scaled back their initial estimates of the amount of seabed minerals. In addition, the fear of shortages of key minerals abated. The world also witnessed a rapid transformation of industry from one that was heavily 18 Congress to adopt this legislation to encourage mining research and development to continue until an international treaty was completed to supersede the law.
The main reasons spokesmen for this small industry gave for interim legislation was that a treaty would take too long and American companies needed legal security to make multimillion dollar investments in mining research and exploration.
The U.S. companies stressed that they needed long lead times before any actual mining could take place. And they wanted to hold onto the technological advantage they had over other countries in this new field.

Congress and the
They were encouraged at fair market rates.5 3 The seabed section also created the International Seabed Authority which would grant contracts for seabed mining. One of the major economic compromises between countries that promoted free-market economics and those that favored planned economies was the creation of the The treaty's Article 150 declared that there would be some assistance given to co.untries in which seabed mining had a negative effect on a mineral-export national economy.
Article 151 explains that there will be a ceiling on nickel production. Because nickel is one of the four major components of manganese nodules, a ceiling on it established automatic ceilings on the other minerals which exist in relatively consistent proportions in the nodules. The treaty describes 53. Ibid.,Annex III,Art. 5,no. 3,a. 54. Ibid.,Annex III,Art. 8. specifically how this ceiling will be set and it says there will be a way of compensating developing countries that are adversely affected by the ceiling. "the problems that we face today in part XI were born out of assumptions made in past negotiations that have proved, only 10 years later, to be at .odds with today's realities. We should therefore learn the lesson and exercise restraint in attempting to find solutions today for the seabed mining system on the basis of assumptions that might most likely prove to be in contradiction with the facts and realities of tomorrow's world. "6 2 The UN resolution that Jesus put forward said "the Assembly would recognize that political and economic changes, including particularly a growing reliance on market principles, underscored the need to re-evaluate, in light of the issues of 61. Ibid.,p. 15. 62. Council on Ocean Law, Oceans Policy News, vol. ix, no. 1 (January 1992): p. 2. concern to some states, matters in the regime to be applied to American seabed mining companies who wanted to protect their competitive commercial advantage. Dubs said the reality was that seabed investors have "little or nothing worth protecting and even any marginal value is rapidly disappearing with the passage of time." He explained that the technology for seabed mining was not top secret and much of it was adapted from offshore oil drilling technology. 6 Dubs also said it was a myth that the seabed provisions would prohibit private enterprise from investing in mining. He said the reality is that rules and regulations could be developed by the Preparatory Commission to satisfy private investment.
Dubs concluded that the first ocean mining that will occur will be government subsidized because the expense is too much for private enterprise to take on.7 He suggested it was an American myth promoted in the 1970s that pure private enterprise was the best and only way to see the riches of seabed exploited for the betterment to mankind.
Senator Claiborne Pell has continually urged the United States to stop boycotting the Preparatory Commission and attend as an observer with the goal of resolving differences and eventually signing the treaty. "We must take off our ideological cloaks," Pell said in a 1991 interview. 8 I also believe this is what the United States should do.
Despite the failure of the seabed regime to translate into mining and tangible benefits for the lesser developed countries, there were successes in the common heritage movement. The primary success was that the idea of a shared resource that belongs to mankind as a whole is now a permanent concept in international law and marine policy. Its repetition in United Nations resolutions, its definition in the Law of the Sea Treaty and its association with a clearly defined geographic area -the deep seabed beyond national jurisdiction all led to making it a part of marine law and geography.
The common heritage concept also gave a new fieldmarine affairs -a central idea to examine and rally behind. It The success of the common heritage movement in making the idea a permanent part of philosophy suggests that a larger, more powerful constituency for the oceans might promote similar ideas. In recent years, the constituency for the oceans has grown, but not as a constituency focused on the deep sea.
Instead, the growth has been among the numbers of advocates for coastal area issues such as pollution cleanup, fish and mammal conservation. In the United States, attention shifted from the deep seabed and its wealth to the coastal zone in the 1970s. The problems of pollution, human health and overfishing were much more immediate than a mining proposition for the deep seabed. Just as the more immediate concept of the exclusive economic zone became one of the most significant changes negotiated at UNCLOS and broadly accepted by the world, the more tangible coastal issues draw a constituency that deep ocean issues have yet to attract. The reason is that people need to feel connected to what they are discussing and promoting. It was always difficult for people to feel connected to the remote and dark seabed. It took idealists such as Borgese to grasp the abstract idea that a regime for the deep seabed was a worthy cause to spend one's life trying to achieve.
There are two distinct views on whether the principle of the common heritage of mankind is. a part of international law.
A number of developing nations argued that the principle was a part of law. The representative from Trinidad and Tobago at UNCLOS said "the principle of the common heritage of mankind is not new law, it is not constitutive but rather declaratory of existing law. "9 But legal scholars from the west such as Christopher Joyner countered that the common heritage of mankind principle did not meet the requirements of customary or conventional international law because first of all the treaty has yet to be ratified by enough countries to bring it into force.
Moreover, the principle also failed to meet criteria as customary law. He said it had not become part of state practice.
Instead, Joyner concluded the principle was part of philosophy; it was "a conceptual ideal not an international legal reality supported by state practice." 1 o Joyner is right that the common heritage is currently part of international legal philosophy. It will become international conventional law if nine more countries ratify the treaty. This may mean that the industrialized countries that have national legislation regulating seabed mining will be violating international law. This should be a concern of the United States, Germany and the United Kingdom -three of the countries that have refused to sign or ratify the treaty and have adopted national legislation. The U.S. legislation is called an interim law and is supposed to be superseded by an international treaty that 1s accepted by the U.S. However, there is a section of the law entitled "Transition to International Agreement" which includes a list of what Congress demands the international agreement contain. The most important item on the list is that the international treaty is not to "impose significant new economic burdens upon such citizens with respect to such operations with the effect of preventing the continuation of such operations on a viable economic basis." 11 As the treaty stands today, it would impose additional fees on an American miner that the U.S. law does not require.
Applying the concept of the common heritage of mankind to the deep seabed was a vehicle for Pardo and Borgese. They participate in such an economic enterprise. Today, the Third World can demonstrate that the developed countries are responsible for much of the environmental degradation to the atmosphere. The Third World can use this scientific arguments to demand technology that will help its nations curb environmental problems that might accompany development.
The Third World also controls much of the world's rain forests.
This gives these nations leverage in negotiations about preserving these forests. 1 5 As far as the oceans are concerned, the concept of the common heritage rules the seabed by default. Developed countries do not have the interest to engage in seabed mmmg.
When and if there is economic demand for the seabed minerals, the common heritage concept will probably continue to dictate the way both developed and developing nations engage in the activity. At this point, the developed nations may see a need to resolve the more technical disagreements in the treaty and may then join it. Until then, the idea of including the nations of the world in the management of a global commons remains a goal that internationalists will continue to preach in marine policy as well as global environmental policy.
There is a need for this type of idealism even if it never translates into concrete policy. It has an effect on policy and contributes to larger trends in international relations. The idea of the common heritage is unlikely to galvanize people from 15. Paul Lewis, "Negotiations in Rio Agree to Increase Aid to Third World," New York Times (14 June 1992): p. 1, sect. 1. different nations in the way it did briefly at the end of the 1960s, however, there is a chance that leadership from people who do not fall into ideological camps could succeed in international ocean affairs.