Common Heritage Of ‘Mankind’ Or ‘Naturekind’ - A New Look At Understanding The Doctrine
Author: LawSphereX
Category: General Law
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COMMON HERITAGE OF ‘MANKIND’ OR
‘NATUREKIND’?: A NEW LOOK AT UNDERSTANDING THE DOCTRINE
Reema Nayak, OP Jindal Global University, Sonipat
ABSTRACT
The doctrine of "Common Heritage of Mankind" (CHM) has long been considered a legal and ethical framework for equitable resource distribution and environmental sustainability, particularly concerning the deep seabed. However, its predominant anthropocentric interpretation—framing oceans and their resources as commodities for human benefit—fails to account for the intrinsic value of nature itself. This paper critically examines the limitations of the CHM doctrine in its human-centric form and argues for a paradigm shift towards a more inclusive perspective—one that recognizes the oceans as a "Common Heritage of Naturekind.
" Drawing insights from the documentary *My Octopus Teacher*, the paper underscores the interdependent relationship between humans and the marine ecosystem, advocating for a legal framework that acknowledges nature as a primary stakeholder rather than a passive resource for exploitation. By engaging with indigenous perspectives, posthumanist thought, and emerging "Rights of Nature" jurisprudence, this paper calls for an evolution in international law— one that prioritizes ecological integrity over capitalist-driven resource extraction. The urgency of this shift is further highlighted through discussions on deep-sea biodiversity, climate change, and sustainable governance, reinforcing the need for a custodial, rather than proprietary, approach to marine stewardship.
Ultimately, this paper contends that true environmental justice lies not in the exploitation of common resources for human prosperity but in the recognition of nature’s inherent rights and the ethical obligation to protect it for present and future generations.
Introduction
International law is one of the few law disciplines that seeks to incorporate a wholistic understanding of nature life and dignity. It is not limited to the ‘human’ aspects of humankind alone, it takes into consideration the environment around, that sustains these very humans. One such example is Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) which broadly addresses protection and conservation of the marine environment. It establishes a general obligation for states to "protect and preserve the environment" and obligates them to take collective or individual actions to prevent and mitigate marine pollution.
Alongside these overarching provisions, UNCLOS also contains specific conservation measures for the deep seabed (Part XI) and the high seas (Part VII) which mandate States to conserve living resources from the harmful effects of commercial activities in this zone. 1 However, protection and conservation of marine regions has barely been of utmost priority to the most powerful of nations. Major discussions surrounding the deep seabed are in relation to the billions of worth of minerals habituating there.
Naturally, what then follows is intense debate around whose jurisdiction should apply to these rich ocean seabeds that contain vast, nearly unimaginable quantity of mineral resources, with an estimated 358 billion tons of manganese, and potential for ocean farming and fish cultivation which is enough to meet human consumption needs for 4,00,000 years, compared to only a century’s worth of supply on land. Owing to the commercial potential of these resources and the strategic appeal for military activities, States then began to consider the nature, scope, and terms of jurisdiction that could be established over these oceanic regions. It was within this context that the concept of the "Common Heritage of Mankind" (CHM) emerged. The CHM framework seeks to prevent exclusive national claims to the seabed and its resources beyond national jurisdiction.
Instead, it mandates that such resources be exploited only under international licensing in line with peaceful purposes and for the collective benefit of humanity. This framework requires that financial proceeds from commercial extraction be shared among all States, with preferential support for developing countries. 2 Third World Nations supported the CHM model as it aligned with principles of redistribution and inclusivity. They advocated for all resource extraction to be managed either by an international organization or through joint ventures with a body known as the 1 Dire Tladi, The Common Heritage of Mankind and the Proposed Treaty on Biodiversity in Areas beyond National Jurisdiction: the Choice between Pragmatism and Sustainability, 25 Yearbook of International Environmental Law 113 (2014).
2 Surabhi Ranganathan, The Common Heritage of Mankind, Oxford University Press eBooks 35 (2019).
"Enterprise. " This Enterprise would have exclusive rights over seabed mining, receiving financial and technological support from industrialized countries, and would be supervised by an international authority in which all states had equal representation. Revenue earned from the mining activities would then be distributed among all nations, with particular support directed to developing and less-developed countries. Additionally, restricting mining to the Enterprise would ensure a sustainable extraction rate, protecting the interests of land-based mineral producers. Therefore, for developing countries, the CHM concept was crucial; it would mean using global resources in a way that allowed them to participate as equal stakeholders and beneficiaries.
Such a system aligned with the political and economic goals of Third World Nations, offering them a role in a significantly emerging industry, as active partners this time around, not merely as passive recipients of revenue. 3 Mining through the Enterprise represented a unique opportunity for these countries to balance their individual interests with those of the global community. In contrast, industrialized nations dismissed these ideas as impractical. They preferred a system based on commercial principles, where market forces would determine both the pricing and pace of resource extraction. While they accepted the designation of the deep seabed as CHM, they wanted the mining framework to reflect the "freedom of the seas" principle, maintaining open access for all to seabed resources.
Developed countries hence envisioned an international authority with a limited function as a registry of mining sites. This stance naturally favoured technologically advanced countries more. 4 Driven by capitalist, greed-based mindsets, Developed countries fail to acknowledge that at the core of the principle, the Common Heritage Principles (CHP) are legal obligations designed to protect a “communal good”, that is the Oceans and its resources, from the interests of powerful, individualistic nation-states and private corporations. The model not only favours fair resource accessibility and distribution to help bridge the gap between developed and developing countries, but also seeks to promote environmental sustainability and ocean governance in an inclusive and equitable way, not only for present generation and future but for the maintenance of ecological balance.
Rather than allowing these resources to remain dominated by affluent nations of the Global North, the CHM operates under the principle that the ocean is a shared inheritance of all humankind. Given the severe environmental damage caused by unchecked and uncontrolled deep-sea mining, sustainable governance of the ocean 3 Surabhi Ranganathan, Decolonization and International Law: Putting the Ocean on the Map, 23 Journal of the History of International Law / Revue D’histoire Du Droit International 1 (2020).
4 Supra note at 2.
floor calls for the urgent need to implement a regulated approach, with CHM and UNCLOS at the forefront of marine stewardship. Therefore, CHM established the International Seabed Authority (ISA) to oversee the Area, manage its resources, and issue licenses for as much exploration and exploitation as considered appropriate. 5 CHM therefore is regarded as a conservation-minded doctrine, centred around all of humanity’s collective interests and those of future generations, with the push to implementing fair environmental practices across generations and enforcing obligations of protecting the ocean floor for future generations. 6 However, this understanding of the model is inadequate and is limited to humanity’s needs alone.
Since the doctrine seeks to engage in environmental preservation, it will always fall short of delivering effective results unless it places the very environment it seeks to protect at the centre of its analysis. This shift in lens is imperative to understanding that the ocean is not for ‘mankind’ alone, perhaps it is a Common Heritage for all of ‘Nature Kind’. The documentary titled My Octopus Teacher is an excellent ode to this interdependency between humans and nature. This paper seeks to incorporate lessons from the documentary to bridge the gap between a human-centric understanding of the doctrine to one which is more holistic and inclusive of all of nature.
This paper seeks to explain why there is a need now more than ever to consider nature as one of the primary stakeholders in any discussion surrounding jurisdiction over natural entities, as opposed to a capitalist, greed-based mindset that only has resource exploitation at the base of all its intentions and to discard the idea of treating nature as mere commodity whose exploitation is the sole right of humans. 7 Why make a shift from Mankind to Nature kind? A foundational interpretation of the CHM principle often draws on the Roman concept of res communis, which suggests that shared resources like the sea, shores, and rivers are unowned, accessible resources for public use and that everyone should be entitled to enjoy the Ocean and its resources.
However, the unrestricted public use of a common resource does not guarantee sustainability, for it may deplete these resources for future users. Such unrestricted, non-exclusive use can have damaging environmental consequences, particularly in the case of deep-sea mining, which threatens marine biodiversity and compromises the ocean’s value for 5 Michela Massimi, The fraught legacy of the Common Heritage of Humankind principle for equitable ocean policy, 153 Environmental Science & Policy 103681 (2024). 6 Tullio Scovazzi, The Concept of Common Heritage of Mankind and the Genetic Resources of the Seabed beyond the Limits of National Jurisdiction, 14 Agenda Internacional 11 (2007).
7 James Reed, My Octopus Teacher , Netflix (2020).
future generations. Thus, CHM is better understood not merely as a common right to use but as a communal trust held in collective ownership for all humankind. Rather than a shared resource for open enjoyment, the CHM concept aligns more closely with res publicae, a form of collective property held in trust by and for the public. This understanding resonates with an African understanding of ownership as communal, which holds that a person is not an isolated individual but an integral part of the nature, for whose protection he has a shared responsibility. 8 This is similar to what the documentary shows its viewers about the indigenous way of life that seeks to hold high regard for nature and its contributions. The protagonist speaks about the Kalahari trackers he had met, who gave him insights into their symbiotic relationship with nature.
Using the example of Kalahari tribes, the protagonist signifies how important it is to incorporate experiences of indigenous people in mainstream scholarship, those who live more in coherence with nature, on the frontlines of a direct interaction between nature and humans. Owing to the interdependent relationship, the CHM framework should view nation-states as stewards, accountable to humankind, past, present, and future generations as well as all of nature. This perspective contrasts with the Westphalian model of International law, which centres on national sovereignty, instead of advancing a “global and solidarist” view. Moreover, this nuanced interpretation of CHM was echoed in South Africa’s 2009 statement at the UN General Assembly, which clarified that CHM is more about solidarity than benefit sharing. CHM is therefore the obligation of protecting and preserving shared resources.
9 Remote ecosystems of the deep seabed harbour unique biological communities with rare genetic adaptations. In these environments, a wide array of organisms exist including microorganisms, fish, crustaceans, polychaetes, echinoderms, coelenterates, molluscs etc. There exist multiple organisms that have peeked the interests of scientists around the globe for their ability to endure harsh environmental conditions. These findings underscore the urgency of establishing a fair and equitable economic framework for the protection of these species found in oceans and seas.
10 This imperative is amplified by challenges like population growth and food insecurity that call for further exploitation of natural resources because the ocean, with its untapped stores of food and minerals, is always seen as a solution to these global challenges with concepts like marine farming, seabed mining, and even human settlements. 11
8 Supra note at 5.
9 Supra note at 1.
10 Supra note at 6.
11 Supra note at 2.
Ultimately, these interconnected challenges such as marine pollution, climate change, biodiversity loss, and poor ocean health highlight the severe risks facing us if exploitation in terms of “business as usual” continues. 12 This urgency resonated in the words of Greta Thunberg at the 2019 UN Climate Action Summit who called for immediate attention by saying “People are suffering. People are dying. Entire ecosystems are collapsing. We are in the beginning of a mass extinction, and all you can talk about is money and fairy tales of eternal economic growth... ”. 13 Her words signify a sense of despair and frustration that most of the world may be experiencing. A sense of hopelessness with regards to witnessing the way things work. This is where the documentary inspires us to turn to nature for all the answers.
After a stretch of personal struggles in life, the protagonist turns hopeful and gets inspired from nature’s ways of healing itself, because just like the Octopus, nature shows strong tendencies of bouncing back from difficulties. He talks about the Octopus growing hers arm back after she lost them in a fight, her protecting herself cleverly using shells and intelligently outwitting her predators, her rescuing herself from life-death situations, her playing with fish and displaying her personality, her mating as a part of her biological lifecycle as well her sacrificing her own life for her offsprings and finally adhering to nature’s norm of one life ending for another to begin.
Despite being an invertebrate and antisocial animal, the Octopus teaches him about the ways of nature, a nature that is more than just ‘dead’ and has healing tendencies but only if it is allowed the time and space to heal. This understanding is a shift away from human centrality for it shows that many non-human animals possess consciousness, advanced cognitive abilities, subjective experiences, and complex social and emotional behaviours. Recognizing these unique characteristics of animals encourages a decentring of the human subject, fostering respect and collaborative engagement with nature. 14 This newfound hope is imperative to protecting nature itself. Anthropocentrism has long been the dominant framework in Western thought, which positions humans as inherently superior to non-human entities such as animals, plants, and ecosystems.
This perspective rests on three main principles, that humans are unique and privileged above all other life forms (ontology); they are the sole originators of knowledge (epistemology); and they alone are bearers of moral significance (ethics). Together, these
12 Supra note at 3.
13 Karin Mickelson, Hope in a TWAIL Register, 1 Third World Approaches to International Law Review 14 (2020). 14 Alessandro Ferrante & Daniele Sartori, From Anthropocentrism to Post-humanism in the Educational Debate,
4 Relations 175 (2016).
beliefs endorse human dominance over nature, encouraging a view of the non-human world as separate, subordinate, and valued primarily for its utility in fulfilling human needs. In contrast, Post-humanism seeks to move beyond these anthropocentric assumptions. It emphasizes the complex relationships between human and non-human entities, challenging the ontological, epistemological, and ethical boundaries that anthropocentrism imposes. 15 In line with this understanding, the documentary represents how important of a role oceans play in the life of humans, especially the protagonist. It stresses that humans are very much a part of this nature and not outside of it. This is an important realisation to adopt, in order to make laws that recognise this interdependent and symbiotic relationship.
Throughout history, various indigenous cultures and belief systems have embraced the interconnectedness of all life, especially in Aboriginal cultures, the ancient Greek personification of Earth as Gaia, and modern Earth Systems science. This holistic understanding underpins the ‘Rights of Nature’ approach, which advocates for governance models that honour the intrinsic value of nature and prioritize ecological integrity, stressing the human responsibility to protect and respect the natural world. This interconnected approach is also reflected in International frameworks such as the preamble to UNCLOS, the United Nations Fish Stocks Agreement (UNFSA), the Convention on Biological Diversity (CBD) etc.
By recognising and implementing the custodial role towards oceans, mandates under these conventions invoke the need to sustain a vital, shared life-support system, and to nurture and protect a global resource essential to all. 16 Posthumanism is essential to overcome a sense of separation from other beings, defeating the illusion of humans as distinct and individual, and embracing all of nature. 17 For example, the protagonist of the documentary uses his personal story to signify why the Ocean is so important, at least to him and the way his life shifted when he came to respect and regard the rich biodiversity that surrounded him, including the deep, blue waters of the Atlantic, the kelp forests, exotic species and the Octopus that he develops a deep personal bond with.
His relationship with the Octopus is a parallel of his growing relationship with the Ocean, which is full of trust, mutual respect and curiosity. He slowly comes to identify the Octopus as a being worthy of respect and acknowledgement. He finds his relationship with the Octopus endearing, teaching him to become more sensitized to the ‘other’. Above all, the documentary signifies
15 Supra note at 14.
16 Harriet Harden-Davies et al., Rights of Nature
Perspectives for Global Ocean Stewardship, 122 Marine Policy 104059 (2020). 17 Francesca Ferrando, The Party of the Anthropocene: Post-humanism, Environmentalism and the Postanthropocentric Paradigm Shift, 4 Relations 159 (2016). the importance of respecting the process of a forest or an Ocean ecosystem. While he justifies the predator-prey relationship for its importance in sustaining the food chain, he is unhappy with human activities that might cause undue death of species, who are suffering as a result of overexploitation. Ruthless killing of a prey in nature is still a kinder way of dying than at the hands of greedy human activities. Rights of Nature seeks to prevent exactly this, by upholding the integrity of nature and the shared responsibility of protecting it.
Ecuador’s Constitution, for example, recognizes the Rights of Nature (Pachamama), affirming its right to “integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions, and evolutionary processes,” as well as its right to restoration. Similarly, Bolivia’s Law on the Rights of Mother Earth (2010) grants Mother Earth the right to life, which includes preserving “the integrity of living systems, natural processes, and capacities for regeneration,” along with rights to biodiversity, equilibrium, and restoration. Spain’s 2022 law on the Mar Menor lagoon established the lagoon as a legal person with rights to conservation, restoration, and natural evolution. In the United States, Santa Monica’s 2013 Sustainability Rights Ordinance extends rights to entities like groundwater aquifers, atmospheric systems, and marine waters.
18 A case from India’s legal system, which is the 2017 case of Mohd Salim v. State of Uttarakhand19, declared that rivers and lakes have intrinsic rights not to be polluted or damaged, therefore equating harm to these natural entities with harm to a person. 20 Through an analysis of rightsof-nature laws, four fundamental characteristics emerge, that Nature is a rights-bearing entity; all elements of nature are interconnected; ecosystem health is a societal objective with a duty to respect, restore, and regenerate natural systems; and effective representation and measures are required to fulfil human responsibilities to nature. 21 The development of rights-of-nature laws marks towards an environmental legal system governed by Earth Jurisprudence (EJ), which owes its duty toward Earth as a global community rather than humanity alone.
22 This reunderstanding helps reorient the very foundations of CHM, by recognising that the core of the concept is sustainability and preservation. 23
18 Id.
19 Mohd Salim v. State of Uttarakhand, Special Appeal No. 368 of 2018.
20 Yaffa Epstein et al., Science and the Legal Rights of Nature, 380 Science (2023).
21 Supra note at 16.
22 Jérémie Gilbert et al., Understanding the Rights of Nature
Working Together across and beyond Disciplines,
51 Human Ecology (2023).
23 Supra note at 16.
Way forward Mickelson is of the opinion that Hope manifests uniquely for each person and arises from diverse sources. 24 In My Octopus Teacher, which highlights a deep, intimate connection with nature, the protagonist derives his hope from curiosity initially, which provokes him to invest more time and make peculiar observations about the Octopus like its colour, texture, behavioural patterns, tracking markers, triggers etc. A growing interest and consequent research about the Octopus’s anatomy, morphology, hunting patterns, mating behaviours etc. gives the protagonist’s life a whole new direction. He undergoes a switch from despair and dissatisfaction to a new sense of purpose that has Ocean at the centre, specially the Octopus. The Ocean is no longer his escape but is now his home.
An account of a deep, personal experience like this is an unique perspective, which brings nature to the forefront rather than being placed in the background. It helps us view ourselves more as active actors and representatives of nature as opposed to viewing ourselves as separate from its functioning. The way forward now would hence be recognising that at the centre of International frameworks, is human and nature interdependency and obligations of environmental stewardship, by deriving our hope from nature itself. 25
24 Supra note at 13.
25 Supra note at 16.