THE RETREAT OF THE COMMON HERITAGE OF MANKIND

The regime for the deep seabed is a further illustration of the same dynamic of unequal freedom, even though at first sight it may appear rather as a subver­sion of it (given that the law removes the deep seabed as a whole from under the umbrella of principle of the freedom of the sea).

Amongst the aspects of this regime that might appear radical was the flesh that LOSC gave to the idea of common benefit: not just a redistribution of profits from seabed mining, but also arrangements enabling the participation of developing states in the mining activity. Thus, the LOSC gave the ISA its own mining arm, the ‘Enterprise', which could involve developing states in the activity of seabed mining both indirectly (by mining on behalf of the international community) and directly, by engaging them in cooperative ventures. The LOSC also required developed states to provide several forms of assistance to developing states: identifying mining sites to be banked with the ISA for their use or use by the Enterprise; transferring technology on reasonable terms; providing training to personnel; and following production policies to avoid glutting the market for minerals.

Another radical element was that developing states were ensured a say in the administration of seabed mining. The ISA was given two principal organs: an Assembly of all LOSC parties - developing states thus enjoying a numer­ical majority - and a Council with restricted membership. The division of powers between the two was important: while the Council was empowered to advise the Assembly on regulations and procedures, and to approve or reject mining contracts, the Assembly was designated as the supreme organ, and was to function as the legislative arm, enjoying final decision-making authority on matters of general policy and on points of detail such as the most equitable allocation of economic benefits.

The decade-long seabed negotiations had been regarded as a test case for the possibility of decolonising international law, and for the law's potential to address developing states' demands for a ‘new international economic order' (NIEO), in which they would be active producers of industrial wealth and participants in establishing global economic arrangements.^[770] The elements of the seabed regime that catered to these aspirations were even more meaning­ful than a share in the mining profits; for all that such a share represented a major potential monetary inflow received as a matter of right, and not as a matter of aid.

But, once again, it is worth focusing on the details. For they reveal a regime in retreat almost from the moment of its inception. The narrowing of the common heritage principle commenced from Pardo's very act of introducing it to the UN General Assembly. As noted above, he initially advocated it only vis-à-vis the seabed, and not the high seas as well. Pardo recollected that he did so to avoid ‘the suspicion and opposition' that would follow if major powers suspected him of seeking to replace the umbrella principle of freedom of the sea with the common heritage principle.

This was, first, by a reduction of the area of the seabed regarded as common heritage: Pardo had considered that most, if not all, of the seabed beyond the stretches of the continental shelf over which national jurisdiction had already been claimed, would come within the international seabed area. However, from the skilful deployment and disregard of the rationale of natural prolonga­tion, very broad continental shelf claims emerged instead, which, as men­tioned, enclosed all petroleum resources.

Second, within the area in which it applied, the common heritage principle was further constricted by the introduction of a market approach in the guise of the ‘parallel system'. Initial proposals advocated by developing states would have permitted only mining by the Enterprise. This was not acceptable to developed states and corporations, who wanted to run their own mining operations - in fact their initial preference had been for a minimal inter­national regime that would simply operate a registry of mining claims. In the mid-i97os, during the months between the LOSC negotiation sessions, Henry Kissinger conducted a series of bilateral discussions with influential develop­ing states, seeking to persuade them of a compromise in the form of a parallel system permitting both the Enterprise and state-sponsored corporations to undertake mining operations. This, he asserted, would be a viable system, since there were ‘more than 100 valuable sites on which operations could be conducted at present'.^[773] In fact, in private meetings a small group of developed states - the United States, the United Kingdom, France, Japan and the Soviet Union - had conceded that, given the mineral concentrations on each possible mining site, the economics did not support multiple mining oper­ations.

The seemingly radical LOSC provisions to facilitate developing state par­ticipation in seabed mining were thus part of the bargain for the parallel system, and lose their sheen once the calculations underlying that system are recognised. Owing to their first mover advantage, developed states expected their major mining corporations to monopolise seabed mining to the extent the activity was technologically and economically viable. And they protected this advantage in various ways: in addition to the parallel system, they also obtained a scheme to protect their ‘pioneer investor' status that amounted to ‘an almost complete rewriting of the Convention's rules on the sea-bed mining in their favour'.^[775]

Pardo, although continuing to laud the common heritage principle as a ‘far- reaching innovation', and the establishment of the ISA as a ‘precedent of incalculable importance', deplored the way in which it had been given effect in the LOSC.^[776] He pointed out the parallel system rested on fallacious assumptions; and effectively ensured that no mining in the international seabed area would be able to compete with mining operations for those same minerals in areas within the national jurisdiction of states.^[777] Critical voices from developing states pointed out that many of the other supposed benefits were also illusory: the production limitations that had been agreed were based on a ‘nickel formula' that responded to the concerns of major developed state producers like Canada; they did not protect producers of other seabed min­erals, especially cobalt; and the transfer of technology obligations were limited to first-generation technology, and that too either upon commercial terms or where the transfer would not impose a substantial cost upon the transferor.^[778]

Yet, by and large, developing states and third world lawyers remained invested in the mining regime. Perhaps the continued bitter criticisms of its ‘socialist' character^[779] contributed to the perception that some sort of ideological victory had been won: the NIEO had stalled neoliberalism.

While a prominent Western scholar regarded the new regime as an ‘excel­lent example of adapting international law to new circumstances',^[782] a leading scholar from the third world described it as a ‘mutilation' of the common heritage ideal.^[783] The concern was that, for all that the original Part XI regime of the LOSC had also been flawed, in the 1994 agreement the term ‘common heritage of mankind' had ‘lost its original meaning and substance when it symbolised the interests, needs, hopes and aspirations of a large number of poor peoples... The deep seabed will now be exploited on commercial terms, irrespective of the needs and interests of the weaker members of the inter­national community'.^[784]

Recent developments both bear out and complicate this prediction.

Elsewhere, I and others have further critiqued the common heritage principle for its consolidation of a primarily extractive imaginary of the international seabed, such that the common heritage is understood purely in terms of seabed mining. But even taking seabed mining as the driving interest of the common heritage regime, we might note the gradual recession of the idea of redistribution in favour of commercial considerations. As in the case of the fisheries regime, the arrangements on the one hand enclose the area: seabed mining can only take place via an ISA licence or - for minerals on the continental shelf - via licence from the coastal state. On the other hand, there is increased freedom for private corporations. The parallel system secured their ability to mine under state sponsorship; the reciprocating states regime enabled investments to be made on unilateral licences; the 1994 agree­ment placed mining upon a squarely commercial footing, lowering corpor­ations' costs and enhancing their opportunities to select a suitable sponsor state.

In the present, deep-sea activism mainly - and necessarily - focuses upon obtaining regulations which will ensure that corporations make essential expenditures on scientific research and assessment of ecological impacts of mining. However, there are fears that while the language of the regulations will express environmental aims (as the LOSC regime once did redistributive ones), few actual constraints will operate.

Council of the International Seabed Authority, 16 July 2018, https://ran-s3.s3.amazonaws.com/ isa.org.jm/s3fs-public/files/documents/mit-ppt.pdf. I also rely here on observations gathered while attending this meeting.

⁷¹ These states all have current contracts for exploration of seabed minerals. For an analysis of especially Nauru's efforts to position itself as a sponsor state, see Isabel Feichtner, ‘Mining For Humanity in the Deep Sea and Outer Space: The Role of Small States and International Law in the Extraterritorial Expansion of Extraction', Leiden Journal of International Law 32 (2019), ²55^-74.