Concept of the Common Heritage of Mankind in International Law, The

Journal of Third World Studies, Fall 2002 by Turack, Daniel C

Baslar, Kernel. The Concept of the Common Heritage of Mankind in International Law. The Hague/Boston/London: Martinus Nijhoff Publishers, 1998. 427 PP.

This study represents an updated extension of the author's Ph.D. thesis submitted to Nottingham University in 1995. Dr. Baslar seeks to provide tentative answers to the questions whether and how the concept of the common heritage of mankind (CHM) can be incorporated into the corpus of international law as a legal norm. The CHM concept has already been the subject of debate in various branches of international law, e.g. the law of the sea, outer space law, environmental law, human rights, humanitarian law, and its place as a general principle of law as it pertains, for example, to territory and sovereignty.

Dr. Baslar's analysis represents the thinking of the 1990s that takes into consideration the post-Cold War political atmosphere, the post-ideology that replaced the New International Economic Order, the present acceptance of humanitarian intervention which prior to the Gulf War was embryonic, the post1992 Rio international environmental law era that has progressed from absolute sovereignty to a type of trusteeship sovereignty, the so-called post-modern era with its search for new philosophies that esteem human dignity, and the explosion of information in this new communication age. A comprehensive understanding of the current make-up of the CHM requires scrutiny of multidisciplinary scholarship that the author aptly manifests throughout this work. In this regard, the reader will encounter the CHM debate in archaeology, theology and economics as well as in the jurisprudence of international law. To spell out the peculiarities of the CHM concept in each of these disciplines might appear as an insurmountable task, but the author provides a cogent effort.

In this study, a normative methodology has been opted for by Dr. Baslar in which he assesses norms, practices and institutions critically and prescriptively. Since his aim is to remove legal uncertainties surrounding the common heritage concept, he does not deal with the political-legal history of the concept nor with its doctrinal antecedents, namely, res communis and res nullius. As a prescriptive work, the author has chosen to give short shrift to descriptive sources of international law, that is, state practice and customary international law, opting in favor of reliance upon natural law and the doctrine of trusteeship.

The book is divided into two parts. In the first part, we find the philosophical underpinnings of the concept of CHM relying on natural law arguments over the precepts of the Westphalian international law such as sovereignty, territory and consent-based sources of international law. Of necessity, the author provides his clarification of the vocabulary used in the CHM. His theoretical framework for the concept encompasses the idea of stewardship and the public trust doctrine. He is dissuaded from following those elements that have been associated with the CHM as it applies to international spaces. Instead, he attempts to persuade the reader by arguing in favor of a rejection of the nonappropriation principle, a consolidated administration mechanism, sharing of burdens, responsibilities and benefits, sustainable management and common concern. He argues for a global perestroika in international law based on the dynamic of the regionally successful European Community paradigm. Absolute sovereignty and national interests are portrayed as stumbling blocks to an ecological and economic inter-dependent world that curtail the CHM concept. He suggests two tentative solutions to protect the whole of mankind's vital interests, namely, a national hypothetical consent and eco-intervention.

Part two of the book assesses the role and implications of the CHM concept in its various applications in international law that include outer space, the legal status of lunar minerals, the geostationary orbit, radio-frequencies used in space communication, solar energy, low earth orbits and La Grange spots; all of these subjects receive careful attention. The status of the CHM within the context of the 1982 United Nations sponsored Law of the Sea Convention, and the consequences of the exclusive economic zone as it impacts fish stocks and other resources of the marine environment are explored. In view of the 1994 Agreement on the Implementation of Part XI of the 1982 Convention, the CHM idea, conceived in the 1960's and 1970's, has undergone significant change, and Dr. Baslar presents arguments for revitalization of CHM's original meaning to attain a just world ocean order.

With respect to Antarctica and its resources, the author recognizes that Antarctic Treaty System has proved itself to be a workable model and its values worth preserving for the most part. He exhorts that the elements of the CHM should be introduced gradually so as to preserve the present consensus. The corpus of international environmental law is regarded by the author to be fraught with certain conceptual difficulties when the CHM concept is applied. When considered in the context of the world's cultural and natural heritages, the atmosphere, biodiversity resources and living resources, can be preserved and augmented through application of the CHM concept, and hence the environment can be protected for future generations.