143
result that decisions of the Council may be blocked by the opposing vote of each of
the two States forming part of the group A.
22
From the second point of view, the legal regime for the activities in the Area
23
was substantially modified with the introduction, on a proposal from the United
States, of the “parallel system”,
24
which granted individual States (whether directly
or through their sponsored investors) to retain a considerable freedom of action.
25
During the eleventh session of the Third UN Conference on the law of the sea the
United States proposed more far-reaching amendments to the provisions of Part XI
and it is significant that the overwhelming majority of delegates from developing
countries opposed to these amendments stressing that many unilateral concession
had already been made, including the acceptance of the parallel system, which, in
the words of the Yugoslav representative, was to be considered “la limite extrême
des concessions; sinon l’essence même du principe de patrimoine commun de
l’humanité serait privée de sens”.
26
22 The Council consists of 36 members of the Authority, each of them elected by the Assembly
every 4 years According to section 3, number 15 (that rendered Article 161(1), UNCLOS inapplicable), the eligible States are divided in five groups in virtue of a combination of both economic
and geographical criteria. The last elections held on 24th July 2014 and the Assembly elected the
following States for a 4 years term starting the 1st January 2015 (ISBA/20/A/L.6). The members
elected are: Group A: Italy (which will relinquish the seat if the USA will become members of the
Authority) and Russia; Group B: France, Germany and South Korea; Group C: Australia and
Chile; Group D: Fiji, Jamaica and Lesotho; Group E: Cameroon, Ghana, Indonesia, Mexico,
Nigeria, Singapore and Tonga. In the decision adopted by the Assembly it specified that “[t]he
agreed allocation of seats on the Council is 10 seats to the African Group, 9 seats to the Asian
Group, 8 seats to the Western European and Others Group, 7 seats to the Latin American and
Caribbean Group and 3 seats to the Eastern European Group”.
23 Vitzthum (1972), Brownlie (1979), pp. 294–300; Jaenicke (1983), Mahmoudi (1987), Salamancas
Aguado (2003), Egede (2011), Tuerk (2014), and Lodge (2015).
24 Tuerk (2012) p. 37.
25 Exploration and exploitation are subject to authorization by the Authority and to a plan of work
in the form of a contract between the interested party and the Authority according to Article 153(3)
of the Convention and Article 3(5) of Annex III. As regards the exploration of the Area the application must indicate the coordinates of two different areas of commercial value. One of these areas
is assigned to the applicant, the other one is reserved to the Enterprise or to developing countries
or private entities sponsored by them (the so called ‘banking system’). Once the area has been
reserved to the exclusive rights of the Enterprise the latter has 15 years to begin activities in respect
of such areas. Otherwise, the contractor which has contributed that reserved area to the Authority
is entitled to apply for a plan of work provided it offers in good faith to include the Enterprise as a
joint-venture partner: 1994 Implementation Agreement, Annex, Section 2(5). Nevertheless, it is
important to note that 20 years after the entry into force of the UNCLOS the Enterprise has not yet
begun to operate independently of the Secretariat which still continue to perform its functions
(1994 Implementation Agreement, Annex, Section 2(1)). See International Seabed Authority,
Legislative History of the Enterprise under the United Nations Convention on the Law of the Sea
and the Agreement relating to the Implementation of Part XI of the Convention (International
Seabed Authority, Jamaica 2002). See also Lodge (2015), pp. 237–239.
26 Le droit de la mer. La notion de patrimoine commun de l’humanité. Historique de l’élaboration
des articles 133 à 150 et 311(6) de la Convention des Nations Unies sur le droit de la mer, Nations
Unies, Division des affaires maritimes et du droit de la mer, Bureau des affaires juridiques,
New York, 1997, p. 506.
The Interpretative Value of the Principle of the Common Heritage of Mankind…
result that decisions of the Council may be blocked by the opposing vote of each of
the two States forming part of the group A.
22
From the second point of view, the legal regime for the activities in the Area
23
was substantially modified with the introduction, on a proposal from the United
States, of the “parallel system”,
24
which granted individual States (whether directly
or through their sponsored investors) to retain a considerable freedom of action.
25
During the eleventh session of the Third UN Conference on the law of the sea the
United States proposed more far-reaching amendments to the provisions of Part XI
and it is significant that the overwhelming majority of delegates from developing
countries opposed to these amendments stressing that many unilateral concession
had already been made, including the acceptance of the parallel system, which, in
the words of the Yugoslav representative, was to be considered “la limite extrême
des concessions; sinon l’essence même du principe de patrimoine commun de
l’humanité serait privée de sens”.
26
22 The Council consists of 36 members of the Authority, each of them elected by the Assembly
every 4 years According to section 3, number 15 (that rendered Article 161(1), UNCLOS inapplicable), the eligible States are divided in five groups in virtue of a combination of both economic
and geographical criteria. The last elections held on 24th July 2014 and the Assembly elected the
following States for a 4 years term starting the 1st January 2015 (ISBA/20/A/L.6). The members
elected are: Group A: Italy (which will relinquish the seat if the USA will become members of the
Authority) and Russia; Group B: France, Germany and South Korea; Group C: Australia and
Chile; Group D: Fiji, Jamaica and Lesotho; Group E: Cameroon, Ghana, Indonesia, Mexico,
Nigeria, Singapore and Tonga. In the decision adopted by the Assembly it specified that “[t]he
agreed allocation of seats on the Council is 10 seats to the African Group, 9 seats to the Asian
Group, 8 seats to the Western European and Others Group, 7 seats to the Latin American and
Caribbean Group and 3 seats to the Eastern European Group”.
23 Vitzthum (1972), Brownlie (1979), pp. 294–300; Jaenicke (1983), Mahmoudi (1987), Salamancas
Aguado (2003), Egede (2011), Tuerk (2014), and Lodge (2015).
24 Tuerk (2012) p. 37.
25 Exploration and exploitation are subject to authorization by the Authority and to a plan of work
in the form of a contract between the interested party and the Authority according to Article 153(3)
of the Convention and Article 3(5) of Annex III. As regards the exploration of the Area the application must indicate the coordinates of two different areas of commercial value. One of these areas
is assigned to the applicant, the other one is reserved to the Enterprise or to developing countries
or private entities sponsored by them (the so called ‘banking system’). Once the area has been
reserved to the exclusive rights of the Enterprise the latter has 15 years to begin activities in respect
of such areas. Otherwise, the contractor which has contributed that reserved area to the Authority
is entitled to apply for a plan of work provided it offers in good faith to include the Enterprise as a
joint-venture partner: 1994 Implementation Agreement, Annex, Section 2(5). Nevertheless, it is
important to note that 20 years after the entry into force of the UNCLOS the Enterprise has not yet
begun to operate independently of the Secretariat which still continue to perform its functions
(1994 Implementation Agreement, Annex, Section 2(1)). See International Seabed Authority,
Legislative History of the Enterprise under the United Nations Convention on the Law of the Sea
and the Agreement relating to the Implementation of Part XI of the Convention (International
Seabed Authority, Jamaica 2002). See also Lodge (2015), pp. 237–239.
26 Le droit de la mer. La notion de patrimoine commun de l’humanité. Historique de l’élaboration
des articles 133 à 150 et 311(6) de la Convention des Nations Unies sur le droit de la mer, Nations
Unies, Division des affaires maritimes et du droit de la mer, Bureau des affaires juridiques,
New York, 1997, p. 506.
The Interpretative Value of the Principle of the Common Heritage of Mankind…