The Common Heritage of Mankind: The Concept and Application in International Law

Subject Areas : Journal of Law and Politics

Hamidreza Jamali ¹ (ندارد)

Received: 2015-07-06 Accepted : 2015-07-06 Published : 2010-11-22

Keywords: Common Heritage of Mankind, Elements, sovereignty, Hypothetical Concept, Human rights,

Abstract :

International developments and in particular new international economic order ledto the creation of “the Common Heritage of Mankind” and consists of five elements:non-appropriation, use it for peaceful purposes and benefit of mankind, sharing itsmanagement and benefits. Developing and developed states took opposing positionsand had different interpretation about its content. This concept is relatively new ininternational law and during the last decades has attracted considerable attention andgenerated polemical debate in international forums. This has been especially true ofthe CHM’s application to the legal status of resources in “common spaces areas”,and applied too in other issues. Nevertheless, due to substantial confusion over thenature of the concept and its appropriate place in international law; and differentinterpretations, it lacks legal force. It is a philosophical idea that questions theregimes of globally important resources regardless of their situation, and requiresmajor changes in the world to apply its provisions. Its application and enforcementrequire a critical reexamination of many well-established principles and doctrines ofclassical international law.This article aims at exploring the legal theory and the implications of the concept ofCHM. The author by a normative methodology seeks to provide tentative answers tothe questions whether and how concept can be incorporated into the corpus ofinternational law as a legal norm.The author concludes that can be postulated about the present status of the CHMconcept is that it may indicate an emergence general principle of international law. Itis supportable and applicable with human rights and in particular the thirdgeneration of human rights (collective or solidarity rights) and then is an erga omnesand a jus cogens.