272
Arctic Yearbook 2015
jurisdiction (Ad Hoc Open-ended Informal Working Group 2015). However, the fact remains that none
of the characteristics of the Area’s legal regime – international management and benefit sharing –
currently applies to the high seas.
Statements that mention the Arctic’s Area, continental shelves and high seas in the same breath as the
common heritage of mankind carry the risk of confusion. Deliberately or not, by omitting to
distinguish thoroughly between the different maritime zones, they may create the impression that the
whole (marine) Arctic is considered a common heritage of mankind.
With respect to statements made by Chinese officials, translation problems may compound
misunderstandings, misinterpretations or misuses. Zhuo, for example, while articulating the view that
all parts of the Arctic Ocean, except the territorial sea, are international waters and, as such, part of
the “common legacy of humankind”, does not use the exact English expression of the LOSC, but
nevertheless expressly refers to the legal concept (CRI 2013). According to Chinese legal scholars,
such Chinese statements do not imply that the Arctic as a whole is indeed a common heritage of
mankind, but are meant to remind Arctic coastal states of the consequences of their claims on
extended continental shelves for the remaining international seabed (Liu et al. 2012: 375 and 378).
While this interpretation seems to be in line with “the Chinese persistent principle of respect for
sovereignty and the international affairs of other states” (Liu et al. 2012: 375), it is difficult to reconcile
with several statements’ wordings. And as Jakobson (2010: 13) cautions, there is a risk that repeated
misuse of certain legal concepts in political discourse leads to their perception as the prevailing legal
situation.
Legally questionable conflation can result from imperfect knowledge of the law or be a rhetorical
strategy. As both can be mutually supportive, it may be impossible to tell them apart. In either case,
collective management and benefit-sharing might be taken to apply to zones that do not qualify as
common heritage of mankind, be they international– i.e. the high seas – or under coastal state
jurisdiction – i.e. the continental shelves and the exclusive economic zone. Slightly different
expressions, such as “ecological heritage of mankind” and “common legacy of humankind”, do not
give cause for criticism from a strictly legal point of view. The first phrase in particular seems to move
intentionally away from the legal term. While neither expression has any legal value, both might
however do the political trick. Their lexical proximity to the legal concept, depicting the Arctic as an
international space, draws upon connotations that insinuate that the Arctic’s resources call for
international management and sharing.
Even references to the principle of common heritage of mankind that are legally correct may appear
in a twilight. Winkelmann (2013: 329), for instance, puts emphasis on the support the principle lends
to the non-Arctic states’ interest, or entitlement, to take part in discussions that he does not further
specify and that would be, from a strictly legal perspective, of a far more limited scope than the one
that seems to be politically intended.
Innovations through the concept of ‘common concerns’?
Statements that merely imply commonality, considering Arctic issues of “concern” to or as “a shared
interest” of the “international community”, seem driven by a different strategy and less ambitious
Bartenstein