148
based on the erroneous assumption that the expression “as specifically provided for
in this part” is referred to “the interests and needs of the developing States”, so as to
require as a condition for the recognition of a special treatment to developing countries that their interests and needs are expressly mentioned in the subsequent
provisions.
Such a restrictive interpretation clearly conflicts with the wording of the provision, given that the expression “as specifically provided for in this part” is logically
related to the “effective participation with respect to the activities in the Area”.
45
In
this context, unless otherwise agreed, substantive rules, including the rules on
responsibility and liability of the sponsoring State, are to be interpreted and applied
having due regard to the interests and needs of developing countries in relation to
the specific circumstances of the case.
The same reasoning applies a fortiori to Article 140, in the context of which the
expression “as specifically provided for in this Part” clearly refers to the “Activities
in the Area” rather than to the interests and needs of developing countries. As a matter of fact, it is difficult to understand how the Convention can specify, once and for
all, the content and scope of an evolving concept (i.e. the interests and needs of
developing countries), which is by its very nature subject to changing factors. This
result would be precisely the opposite of the purpose the Convention wants to
achieve by establishing a regime which is a system of progressive development of
international law.
Anyway, the main argument proposed by the Chamber in support of this interpretation is not convincing. The Chamber held that: “Equality of treatment between
developing and developed sponsoring States is consistent with the need to prevent
commercial enterprises based in developed States from setting up companies in
developing States, acquiring their nationality and obtaining their sponsorship in the
hope of being subjected to less burdensome regulations and controls. The spread of
sponsoring States “of convenience” would jeopardize uniform application of the
highest standards of protection of the marine environment, the safe development of
activities in the Area and protection of the common heritage of mankind”.
By an implicit reference to the phenomenon of flags of convenience, the Chamber
draws the attention to a possible distortion that an easy relocation of companies
from developed States to sponsoring developing States according to convenience
might cause to the fair and equitable development of the common heritage of mankind. However, even assuming that the nationality of companies and the nationality
of ships are comparable, such a comparison seems to be immaterial if one consider
that the acquisition of the nationality of a weak sponsoring State does not exempt
the contractor, by reason of incorporation in a developing country incapable of
45 This interpretation is endorsed by the reading of the French and Spanish version of the text: “[l]
a participation effective des Etats en développement aux activités menées dans la Zone est encouragée, come le prévoit expressément la présente partie, compte dȗment tenu des interêts et besoins
particuliers de ces Etats…”; “[s]e promoverá la participación efectiva de los Estados en desarrollo
en las actividades en la Zona, según se dispone expresamente en esta Parte, teniendo debidamente
en cuenta sus intereses y necesidades especiales”.
E. Zamuner
based on the erroneous assumption that the expression “as specifically provided for
in this part” is referred to “the interests and needs of the developing States”, so as to
require as a condition for the recognition of a special treatment to developing countries that their interests and needs are expressly mentioned in the subsequent
provisions.
Such a restrictive interpretation clearly conflicts with the wording of the provision, given that the expression “as specifically provided for in this part” is logically
related to the “effective participation with respect to the activities in the Area”.
45
In
this context, unless otherwise agreed, substantive rules, including the rules on
responsibility and liability of the sponsoring State, are to be interpreted and applied
having due regard to the interests and needs of developing countries in relation to
the specific circumstances of the case.
The same reasoning applies a fortiori to Article 140, in the context of which the
expression “as specifically provided for in this Part” clearly refers to the “Activities
in the Area” rather than to the interests and needs of developing countries. As a matter of fact, it is difficult to understand how the Convention can specify, once and for
all, the content and scope of an evolving concept (i.e. the interests and needs of
developing countries), which is by its very nature subject to changing factors. This
result would be precisely the opposite of the purpose the Convention wants to
achieve by establishing a regime which is a system of progressive development of
international law.
Anyway, the main argument proposed by the Chamber in support of this interpretation is not convincing. The Chamber held that: “Equality of treatment between
developing and developed sponsoring States is consistent with the need to prevent
commercial enterprises based in developed States from setting up companies in
developing States, acquiring their nationality and obtaining their sponsorship in the
hope of being subjected to less burdensome regulations and controls. The spread of
sponsoring States “of convenience” would jeopardize uniform application of the
highest standards of protection of the marine environment, the safe development of
activities in the Area and protection of the common heritage of mankind”.
By an implicit reference to the phenomenon of flags of convenience, the Chamber
draws the attention to a possible distortion that an easy relocation of companies
from developed States to sponsoring developing States according to convenience
might cause to the fair and equitable development of the common heritage of mankind. However, even assuming that the nationality of companies and the nationality
of ships are comparable, such a comparison seems to be immaterial if one consider
that the acquisition of the nationality of a weak sponsoring State does not exempt
the contractor, by reason of incorporation in a developing country incapable of
45 This interpretation is endorsed by the reading of the French and Spanish version of the text: “[l]
a participation effective des Etats en développement aux activités menées dans la Zone est encouragée, come le prévoit expressément la présente partie, compte dȗment tenu des interêts et besoins
particuliers de ces Etats…”; “[s]e promoverá la participación efectiva de los Estados en desarrollo
en las actividades en la Zona, según se dispone expresamente en esta Parte, teniendo debidamente
en cuenta sus intereses y necesidades especiales”.
E. Zamuner