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After decades of exploitation, some areas of the earth's crust have been stripped bare due to mining activity. Faced with the scarcity of precious minerals, countries, and companies are flirting with the idea of mining the arctic, the moon, asteroids, and the seabed. These places can yield great riches to those who extract deposits of cobalt, gold, oil, and other minerals from their entrails. But not only do these sites contain precious minerals, but they have also been designated as the common heritage of mankind ("CHM").
According to legal scholars, the concept of CHM implies a notion of inheritance or leaving a legacy to the next generations of humanity, understanding humanity as the whole of the world's people and not nations. Furthermore, all people can access CHM to enjoy it under this system. When the idea of CHM is applied to common spaces, the following postulates arise regarding their use: (1) no one can take possession of these spaces, (2) all humanity is expected to share the management of the areas, (3) the profits obtained from the exploitation of their resources must be distributed with all humanity, (4) only peaceful uses will be allowed, and (5) scientific research will be allowed to all people equally, and the results of the research must be shared. For these rules to be obeyed, an international agency may be needed to manage the CHM.
In the case of the seabed, the International Seabed Authority ("Authority") is responsible for the seabed. It organizes and controls everything related to mining activity on the international seabed. One of its functions is to issue permits to exploit the resources, which, as mentioned, must be done for the benefit of humanity. In the last few years, the Authority approved contracts for China to start mining, and it is expected to be the first country to perform this feat, or perhaps, atrocity. But, let's stop for a second and incorporate what we have learned, and ask ourselves, how do we ensure that all of humanity benefits from the profits that China's mining activity will generate? According to experts, we must trust the judgment of the Authority that manages the seabed for the benefit of humanity. However, history has shown us that we should not be so naive.
The idea that the HCP belongs to no one sounds good in theory, but the creation of an Authority that acts as its owner would seem to indicate otherwise. Elaborate utopian concepts that are far removed from human nature continue to be the modus operandi of many entities. To say that no one can own the seafloor is incompatible with reality. China and other countries, together with the Authority that decides to whom the resources of the international seabed will be distributed, are taking possession of those resources through their actions, even if they say otherwise.
Perhaps, it would be better to say openly that it is possible to appropriate the international seabed. But what if the one who appropriates this resource is the ocean itself? By recognizing the ocean as a legal person and owner of the seabed, we eliminate the false expectation that no one will appropriate this resource. In this way, a legal framework will be established in which the Authority is the ocean's guardian and must regulate the mining activity intended to be carried out on the seabed on behalf of the ocean.
This is not a new idea, and it has been argued since 1972 that natural resources, such as trees, should have standing to go to court. Nearly thirty countries are discussing legislation that could grant rights to rivers, forests, and other resources. One example is New Zealand, where the Whanganui River has been recognized as a legal person. These initiatives can be extrapolated to the case of the ocean and the seabed.
The progress of humanity seems to be unstoppable, and the multiple interests of earthlings often create conflicts, which is healthy to start discussing situations that deserve our attention. The seabed is no exception. The deep sea contains resources necessary for society; however, these must be exploited responsibly. Therefore, declaring the ocean as the owner of the riches of the seabed and the Authority as its guardian is an alternative that would overcome the barriers of greed and illusory aspirations to eliminate the appropriation of this resource.
References
Rey, L. (1987). The Arctic: Mankind's Unique Heritage and Common Responsibility, Arctic and Alpine Research, (19)4, 345-350.
Strati, A. (1991). Deep seabed cultural property and the common heritage of mankind. International and Comparative Law Quarterly, 40(4), 859-894.
Alsdaifat, S. A. (2018). Who owns what in outer space: dilemmas regarding the common heritage of mankind. Pecs Journal of International and European Law, 2018(2), 21-43.
https://earth.org/should-nature-have-legal-rights/
https://www.nationalgeographic.com/culture/graphics/maori-river-in-new-zealand-is-a-legal-person
https://www.theguardian.com/business/2013/aug/05/seabed-mining-cook-islands-billions
https://thediplomat.com/2019/11/scramble-for-the-indo-pacific-seabed/
https://www.theguardian.com/environment/2021/jul/25/rivers-around-the-world-rivers-are-gaining-the-same-legal-rights-as-people
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