146
cise its functions and fulfil its purposes”,
38
granting the organisation and its staff all
the privileges and immunities from the jurisdiction of the members States as far as
they are necessary to perform its own functions.
39
Significantly, the ITLOS Seabed
Dispute Chamber argued that the Authority is one of the potential subjects entitled
to claim compensation for damage to the Area, its resources and the marine environment stating that such entitlement is implicit in Article 137(2) of the Convention,
which states that the Authority shall act “on behalf” of mankind.
None of the modifications introduced by the 1994 Implementation Agreement
did affect this purpose, as it is demonstrated by the relevance it assumed in the shaping of the objectives and goals of the Convention as they are incorporated in the fifth
point of the preamble and in point 2 of the recitals of Annex VI, which respectively
provide that the “realization of a just and equitable international economic order”
and the “new regime” must take into account “the special interests and needs of
developing countries”. Accordingly, Article 140 UNCLOS binds member States
and the International Seabed Authority to carry out activities in the area for the
benefit of mankind as a whole “taking into particular consideration the interests and
needs of developing States” and Article 148 UNCLOS provides that “The effective
participation of developing States in activities in the Area shall be promoted as specifically provided for in this Part, having due regard to their special interests and
needs”. Last but not least it should be pointed out that the role played by the principle of the common heritage of mankind in the context of the Convention has been
further strengthened by Article 311(6) UNCLOS, which establishes a sui generis
conventional peremptory norm by safeguarding it from any amendment and any
agreement in derogation thereof.
40
As a result, the normative value of the principle seems to be indisputable, not
only from the substantive point of view, being the main counterpart to the modifications of the original text which developing States accepted to introduce in order to
meet the interests and requests of developed States, but—it is submitted here—also
as a guiding principle for the interpretation of Part XI of the Convention.
38 Article 176 UNCLOS.
39 Articles 177–183 UNCLOS.
40 Article 311(6) states: “States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be
party to any agreement in derogation thereof”. During the Conference Chile proposed the adoption
of an Article which call the State parties “to accept and recognize on behalf of the international
community as a whole that the provision relating to the common heritage of mankind set out in
article 136 is a peremptory norm of general international law from which no derogation is permitted and which, consequently, can be modified only by subsequent norm of general international
law having the same character”. See the text in Platzöder (1990), p. 390. See in support of the
Chilean proposal the declarations of the delegates of Congo, Costa Rica, Jamaica, Mexico,
Niger, Qatar, Tunisia and the résumé of the President of the Conference in Le droit de la mer. La
notion de patrimoine commun de l’humanité, pp. 448–451.
E. Zamuner
cise its functions and fulfil its purposes”,
38
granting the organisation and its staff all
the privileges and immunities from the jurisdiction of the members States as far as
they are necessary to perform its own functions.
39
Significantly, the ITLOS Seabed
Dispute Chamber argued that the Authority is one of the potential subjects entitled
to claim compensation for damage to the Area, its resources and the marine environment stating that such entitlement is implicit in Article 137(2) of the Convention,
which states that the Authority shall act “on behalf” of mankind.
None of the modifications introduced by the 1994 Implementation Agreement
did affect this purpose, as it is demonstrated by the relevance it assumed in the shaping of the objectives and goals of the Convention as they are incorporated in the fifth
point of the preamble and in point 2 of the recitals of Annex VI, which respectively
provide that the “realization of a just and equitable international economic order”
and the “new regime” must take into account “the special interests and needs of
developing countries”. Accordingly, Article 140 UNCLOS binds member States
and the International Seabed Authority to carry out activities in the area for the
benefit of mankind as a whole “taking into particular consideration the interests and
needs of developing States” and Article 148 UNCLOS provides that “The effective
participation of developing States in activities in the Area shall be promoted as specifically provided for in this Part, having due regard to their special interests and
needs”. Last but not least it should be pointed out that the role played by the principle of the common heritage of mankind in the context of the Convention has been
further strengthened by Article 311(6) UNCLOS, which establishes a sui generis
conventional peremptory norm by safeguarding it from any amendment and any
agreement in derogation thereof.
40
As a result, the normative value of the principle seems to be indisputable, not
only from the substantive point of view, being the main counterpart to the modifications of the original text which developing States accepted to introduce in order to
meet the interests and requests of developed States, but—it is submitted here—also
as a guiding principle for the interpretation of Part XI of the Convention.
38 Article 176 UNCLOS.
39 Articles 177–183 UNCLOS.
40 Article 311(6) states: “States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be
party to any agreement in derogation thereof”. During the Conference Chile proposed the adoption
of an Article which call the State parties “to accept and recognize on behalf of the international
community as a whole that the provision relating to the common heritage of mankind set out in
article 136 is a peremptory norm of general international law from which no derogation is permitted and which, consequently, can be modified only by subsequent norm of general international
law having the same character”. See the text in Platzöder (1990), p. 390. See in support of the
Chilean proposal the declarations of the delegates of Congo, Costa Rica, Jamaica, Mexico,
Niger, Qatar, Tunisia and the résumé of the President of the Conference in Le droit de la mer. La
notion de patrimoine commun de l’humanité, pp. 448–451.
E. Zamuner