state’s discretion to harvest the riches of the deep-sea, albeit while preserving
freedom of the high seas over the superjacent waters and the airspace above them.
72
After having faced initial resistance on behalf of the traditional scholarship of
international, it became clear that the fundaments of the CHM principle could not be
sought in traditional doctrines of international law, but in new, equitable and moral
doctrines. As such, the common heritage principle “not only symbolized the interests
and aspirations of the developing countries, but had been endorsed by all the
developed countries, including the United States”.
73 That endorsement did not last
long after the signature of the Convention, when some states performed significant
opposition to specific provisions of Part XI. As a consequence, the international
society worked on an Implementing Agreement to Part XI, which sought to give
flexibility to some clauses relating to the legal regime of the Area and, thus, attract
more support from staunchest objectors, in particular the United States.
The Agreement was adopted in 1994
74 and is considered by some scholars a
mutilation of the common heritage principle.
75 Amongst the most relevant modifications in the original content of Part XI, provisions compelling the transfer of
seabed mining technology were dropped, as was the provision for large annual fees
that miners were to pay prior to commercial production. In practice, the distortion of
the original meaning of the principle may amount to vested disregard of the “needs
and interests of the weaker members of the international community”.
76 As interesting as it may sound, this work is not centered on the CHM principle, but on the
analysis of the interplay between the two early principles of the law of the sea,
freedom of navigation and territorial sovereignty, due to their complex interaction in
maritime zones within national jurisdiction.
4.3.3 Progressive and Functional Jurisdiction
in the Exclusive Economic Zone and Continental Shelf
UNCLOS instituted a balance between the mare liberum and the principle of
territorial sovereignty through a carefully crafted system of “progression” or “gradation” from stronger to weaker forms of jurisdiction over maritime zones. The
Convention drafters, during almost a decade-long negotiation, have sought for a
balance of rights between different and sometimes conflicting uses of the ocean. At
the end of negotiations, the international community signed a treaty that
72 Art. 135 UNCLOS, on the legal status of the superjacent waters and air space.
73 Anand (2004), p. 182.
74 Agreement Relating to the Implementation of Part XI of the UNCLOS, UNGA, A/RES/48/263,
17.08.1994.
75 Anand (2004), p. 182, is of the view that the common heritage principle had its original nature and
intent overtly assailed by powerful states.
76 Id. 196.
4.3 From Sovereignty to Progressive Jurisdiction in the New Law of the Sea
103
freedom of the high seas over the superjacent waters and the airspace above them.
72
After having faced initial resistance on behalf of the traditional scholarship of
international, it became clear that the fundaments of the CHM principle could not be
sought in traditional doctrines of international law, but in new, equitable and moral
doctrines. As such, the common heritage principle “not only symbolized the interests
and aspirations of the developing countries, but had been endorsed by all the
developed countries, including the United States”.
73 That endorsement did not last
long after the signature of the Convention, when some states performed significant
opposition to specific provisions of Part XI. As a consequence, the international
society worked on an Implementing Agreement to Part XI, which sought to give
flexibility to some clauses relating to the legal regime of the Area and, thus, attract
more support from staunchest objectors, in particular the United States.
The Agreement was adopted in 1994
74 and is considered by some scholars a
mutilation of the common heritage principle.
75 Amongst the most relevant modifications in the original content of Part XI, provisions compelling the transfer of
seabed mining technology were dropped, as was the provision for large annual fees
that miners were to pay prior to commercial production. In practice, the distortion of
the original meaning of the principle may amount to vested disregard of the “needs
and interests of the weaker members of the international community”.
76 As interesting as it may sound, this work is not centered on the CHM principle, but on the
analysis of the interplay between the two early principles of the law of the sea,
freedom of navigation and territorial sovereignty, due to their complex interaction in
maritime zones within national jurisdiction.
4.3.3 Progressive and Functional Jurisdiction
in the Exclusive Economic Zone and Continental Shelf
UNCLOS instituted a balance between the mare liberum and the principle of
territorial sovereignty through a carefully crafted system of “progression” or “gradation” from stronger to weaker forms of jurisdiction over maritime zones. The
Convention drafters, during almost a decade-long negotiation, have sought for a
balance of rights between different and sometimes conflicting uses of the ocean. At
the end of negotiations, the international community signed a treaty that
72 Art. 135 UNCLOS, on the legal status of the superjacent waters and air space.
73 Anand (2004), p. 182.
74 Agreement Relating to the Implementation of Part XI of the UNCLOS, UNGA, A/RES/48/263,
17.08.1994.
75 Anand (2004), p. 182, is of the view that the common heritage principle had its original nature and
intent overtly assailed by powerful states.
76 Id. 196.
4.3 From Sovereignty to Progressive Jurisdiction in the New Law of the Sea
103