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Beneath the Surface: The Common Heritage of Mankind

Cite as: Garrison, Christopher. "Beneath the Surface: The Common Heritage of Mankind," KEStudies, 2007

Beneath the Surface: The Common Heritage of Mankind
Christopher Garrison

Abstract

This paper seeks to bring together certain lines of thought from two, apparently distinct, areas. The first is the system of governance for the planet's oceans established under the 1982 Law of the Sea Convention. The second relates to a newly suggested Biomedical Research & Development (R&D) Treaty to better meet the public health needs of all humanity in the 21st century.

The negotiating history of the Law of the Sea Convention is examined in some detail, in particular having regard to a wholly new question which arose in the 1960's against the backdrop of the Cold War: how to deal with the recently discovered mineral deposits of the deep sea bed. It was believed, by some at least, that untold wealth lay around in the form of metallic nodules in the deep waters of the abyssal plains, under the high seas, just waiting to be harvested. The problem was that only a few states possessed the technology to reach such depths. Applying traditional legal property concepts such as res nullius or res communis would lead to the result that, although in theory anyone was able to exploit these resources, in practice only the technically advanced states, or entities belonging to those states such as companies, would be able to benefit by doing so. A new legal property concept was therefore proposed in 1967 to govern these mineral resources of the deep seabed. They were to be treated as the "Common Heritage of Mankind". Instead of a "first come, first served" situation, the deep seabed was to be managed under an international regime which would share the benefits of exploitation amongst all humanity. It was a radical concept and was, and continues to be, admired or loathed depending on one's political convictions. The concept has survived and has broken free of the "deep seabed" circumstances of its birth to be applied in such varied fields as outer space, Antarctica, the human genome and culture.

A thought experiment is proposed whereby inventions are treated under this Common Heritage of Mankind concept, drawing largely on the models for implementation of the concept which were developed in the context of the Law of the Sea Convention. In this way, it becomes clear that the present exclusive rights regimes such as those provided for under the World Trade Organisation Agreement on Trade Related Aspects of Intellectual Property Rights (the "TRIPS" Agreement) can in theory be subsumed into a broader conceptual framework for global R&D. It is hoped that both the consideration of the negotiating history of the Law of the Sea Convention and this thought experiment may inform present day thinking on the proposed Biomedical R&D Treaty.

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