Essex Public International Law Lecture: From Sacred Trust to Common Heritage
The Essex Public International Law lecture series is founded, hosted and co-chaired by Dr Meagan Wong and Dr Emily Jones based in the School of Law. This is a weekly lecture series featuring judges of international courts and tribunals, leading academics, and practitioners of international law from governmental service, international organizations, and private practice from across the globe. The series prides itself on building on two important intellectual traditions of international law: formalism and international legal practice, and international legal theory including postcolonial and feminist perspectives.
Geophysical domains beyond national jurisdiction are often described as ‘global commons’. This status is said to derive from the 1979 Moon Agreement and the 1982 Law of the Sea Convention, which declared space and seabed resources respectively to be the common heritage of mankind (CHM). This paper makes two arguments. The first is that, despite their chronic conflation in contemporary times, CHM, commons, and res communis omnium are historically, legally, and functionally distinct. The conflation of the three follows from two mistaken presumptions: first, that CHM juridifies the Grotian reconstruction of res communis omnium; and second, that res communis omnium is synonymous with ‘global commons’. The second argument the paper makes is that CHM emerged not from an attempt to institutionalise res communis omnium but from an evolution of the existing principle of international trusteeship. Trusteeship was itself a post-war reworking of the concept of the sacred trust of civilization that, as TWAIL and Marxist scholarship has comprehensively established, was used to justify European colonial and imperial domination over non-European peoples. The paper concludes that regaining clarity on the legal and historical distinctions between commons, CHM and res communis omnium is urgent as geopolitical tensions resurface over the basic treaty principles that should govern space. The conflation of the three perpetuates a decades-old gridlock in negotiations over the legal status of space resources, a gridlock exploited by private actors with likely far-reaching consequences; and trusteeship is increasingly invoked as a novel solution, without regard for its paternalist history. Clarifying the historical origins, uses and risks of these concepts will assist in generating equitable, sustainable and creative ways forward.
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