Research Handbook on Fundamental Concepts of Environmental Law
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Research Handbook on Fundamental Concepts of Environmental Law

Edited by Douglas Fisher

The quality and the strength of an environmental legal system is a reflection of the conceptual foundations upon which it is constructed. The Research Handbook on Fundamental Concepts of Environmental Law illuminates key aspects of environmental governance through the lens of their underlying dimensions: for example, the form, structure and language of international, regional and national instruments; the function of norms, objectives and standards; and the relevance of economic analysis and of integrated policy formulation.
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Chapter 12: The concept of the common heritage of mankind

Prue Taylor

Abstract

The ‘common heritage of mankind’ is a controversial and revolutionary legal concept. Its original purpose was to move the law from a competitive system that reflected the national interests of powerful states to one that requires global co-operation for the benefit of all humanity. In fulfilling this purpose it attempts to change traditional international law radically. At the same time it attempts to overcome the territorial obsession that remains at the core of international environmental law. Ecological systems are an integrated but complex whole that transcend legal and political jurisdictions. Accordingly, ecological protection, social equity and peace are central to the concept of the common heritage of mankind. In practice the concept represents a limitation on the exercise by states of their rights of sovereignty – a radical change. Where such rights to not exist, it creates the basis for a commons based governance regime. Notwithstanding its critics, escalating global ecological degradation, ongoing inability to arrest the tragedy of the commons and creeping sovereignty all ensure the continued relevance of this legal concept. This is reflected in continual efforts to apply it to natural and cultural heritage, marine living resources, global ecological systems – such as the atmosphere – and, at the highest level of integration, the entire Earth System. This chapter considers its origins, use in treaty regimes, specific elements and normative foundations. It then considers how the common heritage of mankind is and can be used in practice to progress international environmental law.

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