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The Common Heritage of Mankind: Utopia or Reality?

The common heritage of mankind is a newly formulated concept: it has only existed in its present form since the end of the 196os. However, ever since the beginnings of modern international law, some parts of the Earth's surface have been considered outside all national jurisdictions. At first, the only such area was the regime of the high seas. A long debate ensued between those who believed that the high seas did not belong to anyone, and thus constituted a res nullius, and those who believed them to be a res communis, belonging to all nations. In practice, however, there was general agreement that the high seas could not be appropriated by any nation and that they could be freely used by all nations. A more rigorous legal analysis shows that in fact there is a fundamental difference between the concepts of res nullius and res communis. The former concept implies that its object can be freely used and appropriated by everyone the classical example is wild game. But since the high seas cannot be appropriated, they cannot themselves be considered res nullius. However, their resources can be used by everybody, and while navigation or the laying of submarine cables or pipelines does not imply an appropriation, fish or shrimp from fishing and related activities belong from the moment of capture to the fisherman. Thus, confusion has arisen because no distinction has been made between the seas themselves and some of their resources. The former are res communis, be-