In the view of Ted McDorman, Pardo sought to halt the political trend of
“creeping jurisdictionalism” over the seas.
68 With due respect, such a statement
does not resume the complexity of the context in which the common heritage
principle was proposed. While Pardo may have sought to halt the expansion of
territorialist intentions, he did so by suggesting a communitarian approach that
would simultaneously keep sovereign states from appropriating portions of the
deep-sea and its incalculable riches, and contribute to a fairer world economic
order, via a revenue-sharing mechanism.
As such, the activities in the deep seabed were to be carried out for the benefit of
humankind as a whole, meaning that states would seek for an equitable sharing of
financial and economic gains derived from activities therein.
69 There is, thus, a
fundamental difference between the “creeping jurisdictionalism” that Pardo was
fighting (appropriation of natural resources by wealthy states who already had
practically the vastness of the oceans under the reach of their fleets) and the move
of coastal states towards the exercise of unilateral jurisdiction over the waters
immediately adjacent to their shore in order to prevent colonial-like spoliation of
marine natural resources therein. This issue will be addressed further below, in the
item on “creeping jurisdiction”.
Hence, UNCLOS was adopted with the Part XI and its 58 articles dedicated to the
regulation of the Area and to creating the institutional machinery responsible for
implementing the newly agreed upon principle, which made direct exploitation of
the deep seabed and its incalculable riches unreachable to States, and restricted
autonomy and authority of those States over a part of the ocean that would otherwise
belong to nobody—res nullius—until someone encloses a particular slot and sinks a
flag therein. Instead, the principle represents a vibrant option of the international
community for the orderly management of the Area according to a res communis
approach, in which the seafloor beyond national powers belongs to everyone and, as
such, shall only be exploited in the benefit of humankind.
70 The implementation of
the common heritage principle is a task for the ISA, who has the legal mandate to
exercise prescriptive and enforcement jurisdiction over the deep seabed and its
resources.
71 The creation of the Authority thus symbolized a severe restriction of
68 One of the main purposes of the common heritage principle is to protect areas beyond national
jurisdiction or, when necessary, to allow exploitation in a way that enhanced the common benefit of
humankind. For a detailed narrative on this principle, see generally Galindo (2006).
69 This feature of the common heritage principle is enshrined in Art. 140 (2), UNCLOS, on the use
of the Area of the benefit of mankind.
70 Due to its revenue-sharing mechanism, Peter Bautista Poyoyo highlights crucial role the common
heritage principle may play in dealing with world inequality and promoting sustainable development. See generally Poyoyo (1997).
71 The prescriptive jurisdiction of the Authority is exemplified in the adoption of the “Mining Code”
and other Regulations on the Exploration and Exploitation of seabed resources, as well as on the
environmental protection of the deep-sea environment, as confirmed by UNCLOS Art. 137 (2). The
enforcement jurisdiction is exercised every time the ISA adopts measures to control pollution and
other hazards to the marine environment, in line with Art. 145 (a) an (b).
102
4 Sovereignty and Jurisdiction in the Law of the Sea
“creeping jurisdictionalism” over the seas.
68 With due respect, such a statement
does not resume the complexity of the context in which the common heritage
principle was proposed. While Pardo may have sought to halt the expansion of
territorialist intentions, he did so by suggesting a communitarian approach that
would simultaneously keep sovereign states from appropriating portions of the
deep-sea and its incalculable riches, and contribute to a fairer world economic
order, via a revenue-sharing mechanism.
As such, the activities in the deep seabed were to be carried out for the benefit of
humankind as a whole, meaning that states would seek for an equitable sharing of
financial and economic gains derived from activities therein.
69 There is, thus, a
fundamental difference between the “creeping jurisdictionalism” that Pardo was
fighting (appropriation of natural resources by wealthy states who already had
practically the vastness of the oceans under the reach of their fleets) and the move
of coastal states towards the exercise of unilateral jurisdiction over the waters
immediately adjacent to their shore in order to prevent colonial-like spoliation of
marine natural resources therein. This issue will be addressed further below, in the
item on “creeping jurisdiction”.
Hence, UNCLOS was adopted with the Part XI and its 58 articles dedicated to the
regulation of the Area and to creating the institutional machinery responsible for
implementing the newly agreed upon principle, which made direct exploitation of
the deep seabed and its incalculable riches unreachable to States, and restricted
autonomy and authority of those States over a part of the ocean that would otherwise
belong to nobody—res nullius—until someone encloses a particular slot and sinks a
flag therein. Instead, the principle represents a vibrant option of the international
community for the orderly management of the Area according to a res communis
approach, in which the seafloor beyond national powers belongs to everyone and, as
such, shall only be exploited in the benefit of humankind.
70 The implementation of
the common heritage principle is a task for the ISA, who has the legal mandate to
exercise prescriptive and enforcement jurisdiction over the deep seabed and its
resources.
71 The creation of the Authority thus symbolized a severe restriction of
68 One of the main purposes of the common heritage principle is to protect areas beyond national
jurisdiction or, when necessary, to allow exploitation in a way that enhanced the common benefit of
humankind. For a detailed narrative on this principle, see generally Galindo (2006).
69 This feature of the common heritage principle is enshrined in Art. 140 (2), UNCLOS, on the use
of the Area of the benefit of mankind.
70 Due to its revenue-sharing mechanism, Peter Bautista Poyoyo highlights crucial role the common
heritage principle may play in dealing with world inequality and promoting sustainable development. See generally Poyoyo (1997).
71 The prescriptive jurisdiction of the Authority is exemplified in the adoption of the “Mining Code”
and other Regulations on the Exploration and Exploitation of seabed resources, as well as on the
environmental protection of the deep-sea environment, as confirmed by UNCLOS Art. 137 (2). The
enforcement jurisdiction is exercised every time the ISA adopts measures to control pollution and
other hazards to the marine environment, in line with Art. 145 (a) an (b).
102
4 Sovereignty and Jurisdiction in the Law of the Sea