145
3 The Effective Participation of Developing States
in the Activities in the Area as the Cornerstone of Part XI
of the Convention
As we have seen, the regime established by UNCLOS was challenged by developed
States in order to obtain a modification of the machinery envisaged to implement
the principle of the common heritage of mankind rather than reject its inherent legal
value, which is to strike a balance between the concurring and sometimes conflicting interests of those States having the capacity to draw from the seabed its actual
and potential benefits and those lacking in these capacities because of the state of
their economic, financial and technological development.
33
Twenty years after the
entry into force of UNCLOS the normative and institutional dimensions of the
principle are still at the core of Part XI of the Convention.
34
According to Articles
136 and 137 UNCLOS, respectively, “[t]he Area
35
and its resources
36
are the common heritage of mankind” and “[a]ll rights in the resources of the Area are vested in
mankind as a whole, on whose behalf the Authority shall act”. UNCLOS does not
merely provide for the substantive rules relating to the activities of States parties in
the Area but it is also the constituent instrument of the ISA, “through which State
parties shall…organize and control activities in the Area, particularly with a view to
administering the resources of the Area”.
37
From the limited point of view of this provision, it seems that UNCLOS considers the ISA like a common organ acting on behalf of its members rather than an
entity with independent capacity at the international level. Nevertheless, at least vis
à vis State parties, the LOS Convention provides that “the Authority shall have
international legal personality and such legal capacity as may be necessary to exer33 See Frakes (2003).
34 As it is pointed out: “[t]he institutional aspect is one of the main components of the concept of
common heritage of mankind and cannot be separated from the others”. See Scovazzi (2010),
p. 45.
35 UNCLOS does not define the extension of the Area. Its boundaries stem in turn from the extension in a particular situation of the outer limits of the continental shelf, according to Article 76(6)
of the Convention, depending on geographical elements, which vary according to the relevant
factual situation. On this point see Franckx (2010).
36 The resources encompassed by the legal regime of the Area do not include living resources and
in particular fishing resources. According to Article 133 they are limited to “all solid, liquid or
gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic
nodules”. For a different perspective, see Mallia (2013).
37 Article 157(1). On the International Seabed Authority see Paolillo (1984), Treves (1998), Lévy
(2002), Scovazzi (2004), and Proelss (2013) pp. 157–158. The structure of the ISA is consistent
with the model of contemporary inter-governmental organizations. The principal organs of the
Authority are the Assembly, the Council and the Secretariat. In addition Article 158, in conjunction
with Article 170, provides for the establishment of the Enterprise, which supervision and control
is conferred upon the Council (Article 170(2)).
The Interpretative Value of the Principle of the Common Heritage of Mankind…
3 The Effective Participation of Developing States
in the Activities in the Area as the Cornerstone of Part XI
of the Convention
As we have seen, the regime established by UNCLOS was challenged by developed
States in order to obtain a modification of the machinery envisaged to implement
the principle of the common heritage of mankind rather than reject its inherent legal
value, which is to strike a balance between the concurring and sometimes conflicting interests of those States having the capacity to draw from the seabed its actual
and potential benefits and those lacking in these capacities because of the state of
their economic, financial and technological development.
33
Twenty years after the
entry into force of UNCLOS the normative and institutional dimensions of the
principle are still at the core of Part XI of the Convention.
34
According to Articles
136 and 137 UNCLOS, respectively, “[t]he Area
35
and its resources
36
are the common heritage of mankind” and “[a]ll rights in the resources of the Area are vested in
mankind as a whole, on whose behalf the Authority shall act”. UNCLOS does not
merely provide for the substantive rules relating to the activities of States parties in
the Area but it is also the constituent instrument of the ISA, “through which State
parties shall…organize and control activities in the Area, particularly with a view to
administering the resources of the Area”.
37
From the limited point of view of this provision, it seems that UNCLOS considers the ISA like a common organ acting on behalf of its members rather than an
entity with independent capacity at the international level. Nevertheless, at least vis
à vis State parties, the LOS Convention provides that “the Authority shall have
international legal personality and such legal capacity as may be necessary to exer33 See Frakes (2003).
34 As it is pointed out: “[t]he institutional aspect is one of the main components of the concept of
common heritage of mankind and cannot be separated from the others”. See Scovazzi (2010),
p. 45.
35 UNCLOS does not define the extension of the Area. Its boundaries stem in turn from the extension in a particular situation of the outer limits of the continental shelf, according to Article 76(6)
of the Convention, depending on geographical elements, which vary according to the relevant
factual situation. On this point see Franckx (2010).
36 The resources encompassed by the legal regime of the Area do not include living resources and
in particular fishing resources. According to Article 133 they are limited to “all solid, liquid or
gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic
nodules”. For a different perspective, see Mallia (2013).
37 Article 157(1). On the International Seabed Authority see Paolillo (1984), Treves (1998), Lévy
(2002), Scovazzi (2004), and Proelss (2013) pp. 157–158. The structure of the ISA is consistent
with the model of contemporary inter-governmental organizations. The principal organs of the
Authority are the Assembly, the Council and the Secretariat. In addition Article 158, in conjunction
with Article 170, provides for the establishment of the Enterprise, which supervision and control
is conferred upon the Council (Article 170(2)).
The Interpretative Value of the Principle of the Common Heritage of Mankind…