November 1^st marks the 50^th anniversary of one of the most consequential speeches in the history of the United Nations. In 1967, Maltese ambassador Arvid Pardo made a passionate, three-hour plea to the General Assembly, urging governments to consider the resources of the ocean floor beyond national jurisdiction as ‘the common heritage of mankind’. His speech prompted the 1982 UN Convention on the Law of the Sea, which embedded the concept of the common heritage of mankind into international law and laid the foundations of the International Seabed Authority.

Half a century after Pardo’s speech, the common heritage of mankind is still a controversial concept. Governments are currently debating whether or not it should have a place in a new UN agreement on conservation and sustainable use of biodiversity in international waters. Therefore, we decided to have a conversation with legal theorist Prue Taylor, senior lecturer at the University of Auckland, New Zealand. Taylor wants to keep the legacy of Pardo and his kindred spirit Elisabeth Mann Borgese alive. She promotes an ecological perspective on the common heritage of mankind and asserts that our experience in managing local commons can teach us a great deal when it comes to protecting the global commons, such as our oceans.

Richard Wouters and Liesbeth Beneder: Why is the concept of the common heritage of mankind so valuable to you?

Prue Taylor: We have to change our relationship to the Earth and this ethical and legal concept can help us do so. It states that some things are so fundamental that they do not belong to states or private companies but to all mankind. Areas like the oceans, the moon and Antarctica should be considered as precious gifts that we need to protect. The resources that these areas can provide us with must be equally accessible to everyone and remain so for future generations. The concept of the common heritage of mankind helps us focus on justice and sustainability in our approach to the global commons, rather than on the interests of states and corporations.

The common heritage of mankind was a guiding principle for the Moon Treaty and for the part of the Convention on the Law of the Sea that deals with the international seabed. But those UN treaties came into being in the 70s and 80s. Isn’t the concept outdated?

On the contrary! It’s more relevant than ever. The problems we have to solve are getting bigger and more urgent. International law and diplomacy as they stand today do not offer real solutions. Look at the oceans… Ocean grabbing is in high gear: big, industrial fishing companies usurp the fish stocks, leaving artisanal fishermen and their communities empty-handed. If we want to stop this appropriation and plunder, we must stress that these fish are part of complex ecosystems and that they are shared natural resources, which we have to take good care of.

Negotiations on a new UN agreement for the protection of marine biodiversity beyond national jurisdiction are ongoing. Will the concept of the common heritage of humankind make its comeback in this treaty?

We are talking about Realpolitik here. Developing countries want to apply the concept to the oceans’ marine genetic resources. Biotech companies are using these resources more and more to make expensive, patented medicines. This monopolisation is totally incompatible with the idea of a common heritage, which stipulates that the proceeds of the global commons must be shared in an equitable way between all countries, rich and poor. Many western countries are not in favour of this kind of benefit-sharing. They want to keep the common heritage of mankind out of the agreement. Judging from the latest negotiation paper of the UN preparatory committee, I think they will get it their way.

Instead, the agreement might mention a different concept, the ‘common concern of mankind’. This concept is also central to the Paris Climate Agreement, but – to be honest – it does not mean a lot. Certainly not if, like in the Paris Agreement, states can decide for themselves how much effort they want to put in when it comes to actually solving the problem. The main reason why states are so eager to embrace ‘common concern’ is that it is such a weak legal concept. Nobody really knows what it means. This makes it possible for governments to keep on doing what they have been doing all along, pumping ever more greenhouse gases into the atmosphere. It’s so important to have a concept that can constrain state sovereignty in a meaningful way. The common heritage requires states to act as trustees on behalf of all humanity and not solely in their own national interests. It is the basis for ecological responsibilities.

But there is an even bigger problem: the focus on marine genetic resources narrows the whole discussion down to one single question: how can we get access to the natural assets of the oceans, from DNA to minerals? The idea of a common heritage of mankind is so much more than that! It puts protection of the global commons before exploitation. I propose that we follow Pardo’s original idea that we need to consider the protection of the oceans as a whole ecological system first and, from that perspective, look for specific zones for human use.”

NGOs like Greenpeace advocate the contrary. They want to create specific marine sanctuaries that are off limits to fishing and mining.

What’s the use of designating small pieces of sea that must be protected? Ecosystems do not work that way. They don’t care about our human planning. You may be able to keep people away from some parts of the ocean, but you cannot stop the damage resulting from industrial-scale fishing and mining elsewhere having an effect on those same parts of the ocean.

When it comes to the development of deep-sea mining, the International Seabed Authority has the responsibility to guard the common heritage of humankind. How does this institution perform its role?

Disappointingly, in several aspects. Under the pressure of countries like the US, some articles on deep-sea mining in the Convention on the Law of the Sea were changed in 1994. This was a big loss for the idea of benefit-sharing between all countries. One of the principal clauses, allowing the Authority to start its own mining enterprise, has turned out to be a dead letter. Instead, there is a licensing system now, whereby commercial companies will do the actual work. I think it has been a risky decision to give so much leeway to profit-seeking enterprises.
The International Seabed Authority is basically a trusteeship, an institution that is supposed to take good care of our common heritage, for present and future generations. This means that you also need NGOs and other involved parties. The decision-making should not be dominated by states, but this is how it works at the moment. If we want humankind to be represented in the governance of the ocean floor, we need more than just states. Even though organisations like Greenpeace can have a say at the moment, their statements do not count for much. That is not correct.

On a more positive note, the Seabed Authority has been working to develop environmental protection measures. However, as far as I am aware, their starting point is that the marine environment can be adequately protected from harms associated with seabed mining. Not everyone would agree with this start point.

You want to give a seat at the negotiating table to NGOs. What about companies?

Companies should have a place at the negotiation table too, but not a legal say.

And NGOs should have legal power?

Yes, as long as they credibly represent the public good.

Is it possible at all to limit the power of states within intergovernmental institutions like the International Seabed Authority?

A trusteeship concept cannot work without states. States are not going away and they can play an important role in governance. But we have to make sure that they will work as responsible actors, who think about the public good first. Their national self-interest is in conflict with the common good. That’s why I am defending the idea that we should restrict the sovereignty of states. It is killing our planet. States work differently than they did 70 years ago, they have changed constantly and now they have to change again.

When we talk about trusteeships for the high seas, fishing companies should be involved as well, according to your reasoning. Aren’t you afraid that this will maintain the problem of overfishing?

No, they have to be involved! In New Zealand, I’ve spoken to a lot of people who are involved in the protection of the seas, but also to representatives of both commercial and recreational fisheries. What I’ve learned from those conversations is that the most important thing is to change the scale of our fisheries so that it fits with how ecosystems work. As I said before: marine reserves alone will not solve the problems caused by industrial-scale fishing.

You have to build from the bottom up, based on mutual understanding. I have heard some very interesting discussions in Auckland, where I live. We had the problem that a lot of whales got killed there each year, because commercial ships didn’t lower their speed when entering the port. That would cost too much money, according to the shipowners. Then all stakeholders gathered around the table and, after long talks, it turned out that nobody actually wanted these whales to be killed. After having found common ground, all of a sudden it became possible to find solutions together. This process of finding common ground, of ‘commoning’, is exactly what has to happen. It has to move up from the local to the international scale. This is how international regulation can acquire power and meaning. It is the starting point for global change.

The European Greens have recently adopted a document in which they lay out their vision for the oceans, Antarctica, and outer space. They embrace the idea of the common heritage of humankind but, at the same time, they argue the concept needs to broadened by recognising the intrinsic value of all living beings and ecosystems, not just human beings.

Good point! This is why I prefer to speak of the ‘common heritage of life’. Humans cannot live without ecosystems, they are so interconnected. We are dealing with a legal concept, though, which is already part of binding international law. Talking about the common heritage of humankind makes it easier to communicate with legal scholars, who have a strong anthropocentric view. But that is part of the problem, of course. At the moment, I am working on a publication in which I propose to move away from the current anthropocentric approach to international law, towards one that is more ecological. We need law that puts protection and restoration of the ecological foundations of all life at the forefront of legal frameworks.
I am grateful that I can build on the legacy of Arvin Pardo and of Elisabeth Mann Borgese, who was the co-architect of the Convention of the Law of the Sea and a member of the Club of Rome. In their view, the common destiny of humans and other living beings was an essential part of the concept of the common heritage of humankind.

 

This interview first appeared, in Dutch, in De Helling quarterly.