回归公域治理原则:人类共同继承财产拓展适用的出路

Returning to Its Original Position as Functional Concept:Expanding Application of the Concept of Common Heritage of Mankind in Other International Legal Fields

在人类不断开拓新的空间领域过程中,人类共同继承财产(Common Heritage of Mankind,以下简称“CHM”)这一原则虽始终保持着活力和影响力,但其拓展适用又始终难有实质性的进展,盖因“共有”范式下的CHM不仅在规范逻辑上难以自洽,也缺乏现实的国际政治土壤。通过梳理CHM的起源与发展历史,结合当前国家管辖范围以外区域海洋遗传资源获取与惠益分享国际立法,可以看出,CHM的进一步拓展适用,应回归到作为全球共用物治理功能性原则的属性定位。应在保留CHM合理内核的同时,抛弃CHM的财产表述,推动全球公域资源的公平、公正开发利用与惠益分享。与此同时,功能主义CHM的回归也为人类命运共同体理念的落实提供了一个重要的规范性载体。

The concept of common heritage of mankind(CHM)has always maintained its vitality and influence in the governance of global commons in the process of human’s continuous development in his exploitation to new space.However,it is difficult to make substantial progress in the application of this concept in other field.The reason for this is that the CHM under the“common ownership”paradigm is not only difficult to be self-consistent in normative logic,but also lack of realistic international political soil.By tracing the origin and development of this concept,as well as the current international legislation on the conservation and sustainable development of marine biodiversity in areas beyond national jurisdiction(BBNJ),it can be observed that the further expansion and application of CHM should return to its attribute orientation as a functional concept of governance of global commons.The property expression of CHM should be discarded while its reasonable elements should be retained so as to promote the fair and equitable exploitation of the resources as well as the benefit sharing of global commons.At the same time,the return of functionalist CHM also provides an important normative carrier for the advancement of the concept of a human community with a shared future.