A Study on the Legal Nature of the Common Heritage of Mankind Principle under the Law of the Sea

Abstract

This study investigates whether the Common Heritage of Mankind Principle could be recognized as a jus cogens by analyzing the legal nature of that principle, which occupies a significant position in the Law of the Sea regime. The ultimate goal of this study is to arrive at an in-depth understanding of the desirable process of making legal principles applied to newly appeared discipline spheres. To this end, theoretical and historical perspectives on the Common Heritage of Mankind Principle and jus cogens were maintained while attempting to draw the best explanation. In recent years, one of the crucial topics in the Law of the Sea is ‘Biological diversity Beyond the National Jurisdiction(BBNJ)’. The principle of freedom of the high seas and the Common Heritage of Mankind Principle are proposed as disciplinary principles in this area. At its root, there is an idea that two principles have a self-evident peremptory character in the maritime order. However, higher hierarchical status must be recognized if a specific legal norm can be defined as a jus cogens, so it must be approached strictly legally, not simply from an ideal and moral point of view. Furthermore, the question whether it is possible to create jus cogens norms artificially to maintain order is inevitably accompanied. While using the jus cogens as a framework to consider the subject, general explanation through the codified rule could not be a critical factor. Instead, the vital was the nature of a legal discourse inherent in the principle. Also, it is not easy to judge the jus cogens character of a specific norm with a single legal interpretation method, especially the legal syllogism. This is because there is no axiomatically self-evident major premise. Therefore, in this paper, an alternative method of abduction is presented. In order to provide evidence that supports the best explanation in abduction, it is far from enough to cite the current legal text. Therefore, Chapter 2 provides an overview of the historical flow of the Law of the Sea as the background for the emergence of the Common Heritage of Mankind Principle and the respective property rights of the principle before the full-scale discussion. In Chapter 3, by simultaneously comparing the intentions of the original proponents of the Common Heritage of Mankind Principle and the codified results, the legal propositionality of the principle was identified, and the four guiding principles were discovered. Chapter 4 outlines the two perspectives of legal positivism and natural law concerning the source of jus cogens, and seeks criteria for judging characteristics of norms that are universally accepted as jus cogens. In this way, the author attempted to find academic and practical standards for forming jus cogens. Finally, in Chapter 5, three hypotheses were established:‘The Common Heritage of Mankind Principle is jus cogens or not jus cogens or conditional jus cogens’. The guiding principles were used as evidence to explain each hypothesis, and the jus cogens criteria were used to judge each of the guiding principles. As a result, the hypothesis that ‘The Common Heritage of Mankind Principle is not a jus cogens norm’ is reasoned to the best explanation. Among the four guiding principles, the unique real right of the Area was categorical but changeable, and the peaceful use was also categorical but only vague words. The part about profit-sharing was hypothetical and made it impossible to be accepted universally. Lastly, management by the international system was also a hypothetical, jus dispositivum. The question raised directly in this study was whether the Common Heritage of Mankind Principle is a jus cogens norm in the current international legal system. However, a more general discourse is needed to arrive at a delicate understanding of the desirable process of making legal principles. Two more questions accompany this; Whether it is possible to create conditional jus cogens artificially; What is the implication of‘jus cogens making’. The answers to these two additional questions result in the following. The jus cogens is universally accepted because they contain certain vital legal ideals, and universal acceptance is self-evident according to the trend of the times and cannot be artificially conditioned. The attempt to ‘jus cogens making’ has a strong ideological bias, but this process is unnecessary for already self-evident legal ideals. Historically, various norms in which ‘jus cogens making’ have been attempted have often been inclined to specific ideologies, and it has been difficult to be accepted in all countries. A jus cogens norm could not be ‘made’, but merely juridically judged, ‘already exists’ from air-like obviousness. The Common Heritage of Mankind Principle calls for justice, but it is hard to expect universal acceptance, as the problem of profit allocation at the root inevitably causes confrontation. Therefore, it should be excluded from the BBNJ discussion. The actual content is more important than the name of the principle, and the content can be changed regardless of the name. The role of this study in obiter dictum is to suggest abductive reasoning to explain the legal nature of a norm by recognizing the limits of conceptual categorization. The method of deduction and induction were useless in revealing how far the Common Heritage of Mankind Principle was from the archetype of the jus cogens category. Abductive reasoning gathers all evidence to provide an optimal explanation for the hypothesis and persuades the audience. This method would be fruitful in the academic field and practice, such as courts. It is expected that various fields of application will be found through empirical research in the future.