CYIL vol. 8 (2017)

JAN ONDŘEJ

CYIL 8 ȍ2017Ȏ

1.1 Common heritage of mankind The UN Convention on the Law of the Sea of 1982 sets in its Article 136 that “The Area and its resources are the common heritage of mankind”. 9 During the negotiations, however, the concept of “common heritage of mankind” was not defined in detail. The UN Convention on the Law of the Sea therefore does not contain a detailed explanation as to what is thought to be “common heritage of mankind”. The non-existence of the term “common heritage of mankind” is substituted in the UN Convention on the Law of the Sea by regulations which govern the activities in the Area (sea- bed and ocean floor) and generally reveal what is according to the Convention view of “common heritage of mankind” which is the basic concept in relation to The Area. 10 In the term “common heritage of mankind” there is a conjunction of the words “heritage” and “mankind”. We shall concentrate on explaining these terms; First, the analysis of “mankind”, whether it is used as a subject of international law or whether it is used only in the political or other sense. The opinions on “mankind” as subject of international law differ. Some representatives of the doctrine, for example Děkanozov, 11 and Malenovský 12 argue that “mankind” is not a subject of international law, as primarily sovereign states can be such subjects as well as other subjects, for example international governmental organizations . According to Górbiel, 13 “mankind” can only be understood as a biological or sociological phenomenon or as a political term but not as a legal term. Other authors, for example Cocca 14 or Fasan, 15 hold the opposite view that “mankind” is a subject of international law. When clarifying this conception, we can start from the fact that subjects do not need to be identical as to their legal character and the extent of their rights. From this perspective some subjects can be entitled to rights and obligations, legal acts and to a standard setting, other subjects can only have a limited range of rights and obligations. When applying this approach, we could find some rudiments of international legal subjectivity also in the term “mankind” and that in the regulations of the UN Convention on the Law of the Sea. In Article 137 Paragraph 2 where it is said that “All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act” and in Article 140 Paragraph 1, where it is set that activities in the Area shall be carried out for the benefit of mankind as a whole. In this respect we can agree with Malenovský that “if “mankind” should be considered as a subject of law it would have to express its will through specified and generally accepted bodies. The International Seabed Authority (ISA) does not differ from common inter-governmental organizations (it is formed by states, each has one 9 By „Area“ is meant the sea bottom beyond the borders of the jurisdiction of the states. 10 MOLODCOV, S. V., International Law of the Sea, Moscow 1987, p. 200. 11 DĚKANOZOV, R. V., Concept of the common heritage of mankind. Soviet Yearbook of International Law , Moscow 1981, p. 144. 12 MALENOVSKÝ, J., Public International Law. 6th edition, Brno 2014, p. 148. 13 GÓRBIEL, A., Common Heritage of Mankind Concept in Space Law Doctrine and Codification Works of the United Nations, II Diritto aereo , 1981, No. 20, p. 64. 14 COCCA, A., Mankind as a New Legal Subject, XIIth Colloquium on the Law of Outer Space , Constance 1970, str. 211. 15 FASAN, E., Mankind in Space Legal Language. Journal of Space Law , 1974, No. 2, p. 131.

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