The UN General Assembly resolved and declared the resources of the High Seas as the Common heritage of the mankind which shall be governed by a proposed international regime- Comment. Common heritage of mankind is a principle of international law which holds that defined territorial areas and elements of humanity’s common heritage that includes both cultural and natural should be held in trust for future generations and be protected from exploitation by individual nation states or corporations. Immanuel Kant in his essay Toward Perpetual Peace claimed that the expansion of hospitality with regard to “use of the right to the earth’s surface which belongs to the human race in common” would “finally bring the human race ever closer to a cosmopolitan constitution”.
The concept of Common Heritage of Mankind, however, was first specifically enunciated in international law in the Outer Space Treaty of 1967. Under Customary rules of International Law, the term high seas means, the part of the sea which are not included in the territorial waters. The rule was formulated in 1609 by Grotious in his treatise mare liberum by arguing that the sea cannot be owned. According to him “the sea is one of those things which is not an article of merchandise, and which cannot become private property. Hence it follows, to speak strictly, that no part of the sea can be considered as territory of any people whatsoever.” Later the prominent writers of the 18th century also advocated for the freedom of open seas.
The meaning of high seas was transformed into treaty rules in the year 1958, when the Geneva Convention on High Seas was adopted. The article 1 of Geneva Convention on High Seas states that high seas is that part of the sea that are not included in the territorial sea or in the internal waters of a state. The regime of high sea has changed considerably under the Convention on the Law of the Sea of 1982 which lays down under article 86 that all parts of the sea that are not included in the exclusive economic zone, in the territorial waters of a state or in the archipelagic waters of an archipelagic State would Constitute high seas.
Thus, the area of the high seas has been substantially reduced under the convention of 1982. The high seas, shorthand for that portion of the ocean that lies beyond the limits of national jurisdiction, including the Southern Ocean around Antarctica, make up 64% of the world’s oceans and nearly 50% of the planet’s surface. It is generally 200 nautical miles from the coast. This vast area, once mistakenly considered an empty wasteland, is now understood to contain the largest reservoir of biodiversity left on earth. Multiplying human activities pose a variety of threats to high seas ecosystems, including overfishing, noise, plastic and chemical pollution, habitat destruction, and now ocean warming and ocean acidification related to rising concentrations of carbon dioxide (CO2) in the atmosphere.
The United Nations Convention on the Law of the Sea has 320 articles, set out in seventeen parts, as well as nine annexes. Parts II to XI concern the different maritime zones: territorial sea and contiguous zone, straits used for international navigation, archipelagic waters, the exclusive economic zone, the continental shelf, the high seas, the International Seabed Area, and special provisions on the regime of islands and of enclosed and semi-enclosed seas. Parts XII to XIV concern specific marine activities and questions in all areas: the protection of the environment, marine scientific research, and the development and transfer of marine technology. Part XV (and annexes 5 to 8) concerns the settlement of disputes. Parts XVI and XVII set out general and final clauses.
Today, 13 percent of the world’s land areas are protected, but less than one percent of global marine areas are, leaving these ecosystems exposed and vulnerable to threats. Further, there is almost no protection of marine ecosystems and biodiversity occurring in deeper waters on the continental shelves and in the international waters of the high seas. It is crucial that international leaders cooperate to ensure stronger conservation measures are implemented and enforced to guarantee the long term sustainability of marine species and the health of ocean ecosystems. The United Nations General Assembly plays a crucial role in ensuring the sustainability of marine fisheries, particularly for those in areas beyond national jurisdiction.
In ocean areas beyond national jurisdiction, many human activities remain unregulated or poorly managed, with ecosystem considerations seldom taken into account and scientific information either lacking or often ignored. As marine industrial activity, ocean warming, and ocean acidification have accelerated, the imperative to replace the current gap-ridden and fragmented approach towards high seas governance with a more integrated, equitable and accountable institutional framework has become more urgent and important. The major issues related to the high seas are as follows:
1. Open access to the rich resources
2. Increasing demands of fish, energy and increase in trade
3. Legal over-fishing
4. Climate change
In the absence of an overarching international governance system for regulating marine fisheries, particularly in areas beyond national jurisdiction, there exist a number of treaties, organizations and intergovernmental instruments that serve to manage fisheries. These instruments include the United Nations and its various processes and organizations, and Regional Fisheries Management Organizations. In addition, there are many treaties, multilateral agreements and intergovernmental organizations that contain provisions relevant to the exploitation, use or trade of marine species. According to the UN Convention on the Law of the sea, the common heritage provides certain freedoms like freedom to fish, navigate lay submarine cables and pipelines, conduct scientific marine research, conduct peaceful military activities, and authorize vessels to fly national flags.
However with these freedoms, there are also certain obligations to fulfill in order to maintain the proper health of the available resource. The duties are to conserve the living marine resources, protect and preserve the marine environment and most importantly not interfere in rights and interests of other nations. Under customary rules of international law, high seas were free and open to all states. Freedom to high sea was a well recognized principle even under the Roman law which is basically the primary precursor of the modern law. It means that the high sea being common to all states, no state may purport to subject any part of them to its territorial sovereignty, since the open sea is not the territory of any state , no state as a rule has a right to exercise its legislation, administration, jurisdiction or police over parts of the high seas.
As a general rule, ships remain under exclusive jurisdiction of the state, whose flags they fly while in high seas. Although sea is not a territory of any state, it is nevertheless an object of the law of nations. Legal order was created through the co-operation of the law of the nations and the municipal laws of such states as possess a maritime flag. The following rules of the law of the nations were universally recognized. 1. Every state that has a maritime flag must lay down rules according to which vessels can claim to sail under its flags, and must furnish such vessels with some official voucher authorizing them to make use of its flag.
2. Every state has the right to punish all such foreign vessels as sail under its flag without being authorized to do so. 3. All vessels with the persons and goods on it, while being on open sea, considered under the sway of the flag state. 4. Every state has the right to punish piracy on the open sea even if committed by foreigners, and that, with a view to extinction of piracy. 5. Warships of all nations can acquire all subject vessels to show their flag. Limitations on the freedom of High Seas:
Freedom of high seas may be exercised by States. However, the above basic rule is subject to certain restriction and limitations which is of a complex nature. Convention of 1982 under article 87(2) lays down the limitation of the general nature on the freedom of the high seas by stating that the freedom of high seas “shall be exercised with due regard for the interests of other states in their exercise of the freedom of the high seas.”
The principle underlying this rule states that the exercise of one freedom by one state has to be accommodated with the exercise of freedom of the sea by other states. No preferences are given and the coexistence of various activities has to be sought through the necessary accommodation. In addition to this limitation, the following are the other set of limitations on the right to exercise the freedom of seas:- 1. Limitation on freedom of fishing:- All states have the freedom of fishing subject to limitation under article 117 of the Convention of 1982 where states are under a duty to cooperate with other states in taking such measures for conservation of living resources in high seas.
2. Limitation on the freedom of navigation:- every State Coastal as well as land locked have freedom of navigation in the high seas but they have certain obligations to perform while exercising this freedom of navigation. Article 94 of the Convention of 1982 sets a group of substantive minimum requirements with which all states must comply as regards safety of navigation especially as regards construction, equipment, sea worthiness and manning of ships, labour conditions on board, the use of rights, maintenance of communication and avoidance of collisions.
3. Limitation on freedoms of scientific researches: – scientific research is promoted but not at the cost of endangering the living biodiversity at any cost. Article 261 of the Convention of 1982 appears to give preference to the exercise of freedom of navigation to freedom to conduct scientific research, though only as regards to deployment of scientific installations and equipments in established shipping routes.
4. Limitations on Non- interference with war ships:- Article 95 of convention of 1982 lays down that warships . The UN general Assembly has taken utmost care and precaution to make sure that no conflicts arise because of the common heritage and that such a resource should be treasured at all cost for the future generations for we keep in trust the goods of the future generation. Any problem that arises out of conflicts over high sea usage is something for which the UN should not be held responsible. It has proposed an international regime and all the states should try to follow the regime in good faith unless they are forced by circumstances not to do so.
[ 2 ]. Immanuel Kant. ‘Toward Perpetual Peace’ in Practical Philosophy-Cambridge Edition of the Works of Immanuel Kant. Gregor MJ (trans.). Cambridge University Press, Cambridge. 1999. p 329 (8:358). [ 3 ]. Dr. H.O.Agarwal; International Law & Human Rights; 18th edition; At P.150. [ 4 ]. United Nations Audiovisual Library of International Law; http://untreaty.un.org [ 5 ]. International Policy: United Nations General Assembly; http://www.pewenvironment.org [ 6 ]. International Policy; http://www.pewenvironment.org
[ 7 ]. The Sovereignty of the Sea: A historical account of the claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters; Thomas Wemyss Fulton; at p. 3. [ 8 ]. Oppenheim’s international law, op.cit, p. 727 as stated in H.O. Agarwal’s International Law and human Rights, 18th edition, at p. 151. [ 9 ]. Oppenheim’s International Law, op, cit, p.727 As stated in H.O.Agarwal’s International Law and human Rights; 18th edition at p. 151.