Equitable Benefit Sharing in the Exploitation of Common Heritage of Mankind Areas According to the Provisions of UNCLOS 1982: Current Situation, Challenges and Prospects

Yen Thi Hong Nguyen, Thang Toan Nguyen, Hiep Dinh Trong

Résumé


The Common Heritage of Mankind, referred to as "the Area" under the 1982 United Nations Convention on the Law of the Sea, constitutes a global asset collectively owned by humanity. It cannot be claimed, possessed, or owned by any state, organization, or individual. The exploration and exploitation of the Area’s resources must be conducted solely for the benefit of all humankind. The International Seabed Authority is tasked with administering the financial and economic benefits derived from these activities to ensure their equitable distribution. All activities within the Area must be carried out exclusively for peaceful purposes and in a manner that respects the equality of all countries, as prescribed by the 1982 United Nations Convention on the Law of the Sea. However, the actual practices of resource exploitation in the Area and the operations of the International Seabed Authority have exposed significant challenges in implementing the principle of equitable benefit sharing among nations. Smaller states, particularly those with limited scientific, technological, and financial resources, often face systemic disadvantages in accessing the benefits derived from the Area. Consequently, international legal reforms are imperative to ensure the fair and sustainable distribution of benefits derived from this global commons. This article will first examine the provisions of the United Nations Convention on the Law of the Sea and other pertinent international laws regarding the legal status of the common heritage of mankind and the principle of equitable benefit sharing. It will then analyze the International Seabed Authority's role in implementing a fair benefit-sharing system. Additionally, the article will address the primary challenges faced in achieving equitable benefit sharing within the common heritage framework. Finally, it will propose recommendations to foster equitable and sustainable benefit-sharing among countries.

Mots-clés


UNCLOS 1982, Common Heritage of Mankind, Equitable Benefit Sharing, ISA, Deep Seabed Resources.

Texte intégral :

PDF (English)

Références


Alexander Proelß, United Nations Convention on the Law of the Sea a Commentary (CH Beck Hart Nomos 2017)

Alfonso Ascencio-Herrera, Myron H. Nordquist, The United Nations Convention on the Law of the Sea, Part XI Regime and the International Seabed Authority: A Twenty-Five Year Journey (Brill Nijhoff 2022)

Armas-Pfirter FM, ‘Chapter 3 The “Common Heritage of Mankind” Principle and the Equitable Sharing of Benefits’, The United Nations Convention on the Law of the Sea, Part XI Regime and the International Seabed Authority: A Twenty-Five Year Journey (Brill 2022)

Blais F, ‘The Fair and Equitable Sharing of Benefits from the Exploitation of Genetic Resources: A Difficult Transition from Principles to Reality’, Governing Global Biodiversity (Routledge 2002)

Broggiato A and others, ‘Fair and Equitable Sharing of Benefits from the Utilization of Marine Genetic Resources in Areas beyond National Jurisdiction: Bridging the Gaps between Science and Policy’ (2014) 49 Marine Policy 176

Daniel Wilde, Hannah Lily, Neil Craik, Anindita Chakraborty, ‘Equitable Sharing of Deep-Sea Mining Benefits: More Questions than Answers’, (2023) 151 Marine Policy

De Lucia V, ‘After the Dust Settles: Selected Considerations about the New Treaty on Marine Biodiversity in Areas beyond National Jurisdiction with Respect to ABMTs and MPAs’ (2024) 55 Ocean Development & International Law 115

De Santo EM and others, ‘Protecting Biodiversity in Areas beyond National Jurisdiction: An Earth System Governance Perspective’ (2019) 2 Earth System Governance 100029

Do Huu Tung and others, ‘Phân cấp quản lý tài nguyên khoáng sản: Kinh nghiệm thế giới và bài học tham khảo đối với Việt Nam/Decentralization of mineral resource management: World experience and lessons for Vietnam’ Tạp chí Cộng sản/Communist Journal accessed 15 January 2025

ED Brown, ‘The 1994 Agreement on the Implementation of Part XI of the UN Convention on the Law of the Sea: Breakthrough to Universality?’, (1995) 19 Marine Policy

Granieri M and Basso A, ‘Building Capacity Building in Technology Transfer. An Introduction’ in Massimiliano Granieri and Andrea Basso (eds), Capacity Building in Technology Transfer: The European Experience (Springer International Publishing 2019)

Harden-Davies H, ‘Marine Science and Technology Transfer: Can the Intergovernmental Oceanographic Commission Advance Governance of Biodiversity beyond National Jurisdiction?’ (2016) 74 Marine Policy 260

——, ‘How Can a New UN Ocean Treaty Change the Course of Capacity Building?’ (2022) 32 Aquatic Conservation: Marine and Freshwater Ecosystems 907

Haugan PM and others, ‘What Role for Ocean-Based Renewable Energy and Deep-Seabed Minerals in a Sustainable Future?’ in Jane Lubchenco and Peter M Haugan (eds), The Blue Compendium: From Knowledge to Action for a Sustainable Ocean Economy (Springer International Publishing 2023) accessed 10 January 2025

ISA, ‘Equitable Sharing of Financial and Other Benefits from Deep-Seabed Mining, ISA Technical Study No 31’ accessed 10 January 2025

‘ISA_Secretary_General_Annual_Report_2024_Chapter8.Pdf’ accessed 26 January 2025

Jaeckel A, ‘Benefitting from the Common Heritage of Humankind: From Expectation to Reality’ (2020) 35 The International Journal of Marine and Coastal Law 660

Jaeckel A, Ardron JA and Gjerde KM, ‘Sharing Benefits of the Common Heritage of Mankind – Is the Deep Seabed Mining Regime Ready?’ (2016) 70 Marine Policy 198

Leary D, ‘Agreeing to Disagree on What We Have or Have Not Agreed on: The Current State of Play of the BBNJ Negotiations on the Status of Marine Genetic Resources in Areas beyond National Jurisdiction’ (2019) 99 Marine Policy 21

Massimi M, ‘The Fraught Legacy of the Common Heritage of Humankind Principle for Equitable Ocean Policy’ (2024) 153 Environmental Science & Policy 103681

Mickelson K, ‘Common Heritage of Mankind as a Limit to Exploitation of the Global Commons’ (2019) 30 European Journal of International Law 635

Morgera E, ‘The Need for an International Legal Concept of Fair and Equitable Benefit Sharing’ (2016) 27 European Journal of International Law 353

——, ‘Chapter 4: The Role of Fair and Equitable Benefit-Sharing in Environmental Peacebuilding’, Research Handbook on International Law and Environmental Peacebuilding (2023)

——, Fair and Equitable Benefit-Sharing in International Law (Oxford University Press 2024)

Planet Tracker, ‘Race to the Bottom – Deep Sea Mining Provides Miniral Financial for Countries’ accessed 10 January 2015

Popova E and others, ‘Ecological Connectivity between the Areas beyond National Jurisdiction and Coastal Waters: Safeguarding Interests of Coastal Communities in Developing Countries’ (2019) 104 Marine Policy 90

Ranganathan S, ‘Ocean Floor Grab: International Law and the Making of an Extractive Imaginary’ (2019) 30 European Journal of International Law 573

Riidiger Wolfrum, ‘The Principle of the Common Heritage of Mankind’ accessed 25 December 2024

Scovazzi T, ‘The Concept of Common Heritage of Mankind and the Genetic Resources of the Seabed beyond the Limits of National Jurisdiction’ (2007) 14 Agenda Internacional 11

‘Statement on Behalf of The African Group by Mr. Mehdi REMAOUN First Secretary At the 25th Session of the Council of the International Seabed Authority, Agenda Item 11: Financial Model’ (25/2/22019) accessed 10 January 2025

Taghizadeh Z, ‘Marine Genetic Resources as Common Heritage of Mankind under the BBNJ Agreement; the International Community toward a Pragmatic Benefit-Sharing Approach?’ [2024] Biodiversity and Conservation accessed 10 January 2025

Tladi D, ‘Chapter 2 The Common Heritage of Mankind in the Proposed Implementing Agreement*’, Legal Order in the World’s Oceans: UN Convention on the Law of the Sea (Brill 2018)

UN General Assembly, ‘Convention on the Law of the Sea’

——, ‘Convention on Biological Diversity’

——, ‘Agreement Relating to the Implementation of Part XI of UNCLOS 1982’

——, ‘BBNJ Agreement’

Vadrot A b. m., Langlet A and Tessnow-von Wysocki I, ‘Who Owns Marine Biodiversity? Contesting the World Order through the “Common Heritage of Humankind” Principle’ (2022) 31 Environmental Politics 226

Vierros MK and Harden-Davies H, ‘Capacity Building and Technology Transfer for Improving Governance of Marine Areas Both beyond and within National Jurisdiction’ (2020) 122 Marine Policy 104158

Wood MC, ‘International Seabed Authority: The First Four Years’ (1999) 3 Max Planck Yearbook of United Nations Law 173




DOI: https://doi.org/10.5102/rdi.v22i2.9862

ISSN 2236-997X (impresso) - ISSN 2237-1036 (on-line)

Desenvolvido por:

Logomarca da Lepidus Tecnologia