heritage principle and the principle of territorial sovereignty upon the birth of the
continental shelf beyond 200 nm, what makes one still wonder if the continental
shelf regime somehow poses a threat to the definition and management of the Area.
5.3.1 Relationship Between the Common Heritage
of Mankind Principle and the Definition of the Outer
Limits of the Continental Shelf
A combined reading of Part XI UNCLOS, the Convention’s travaux preparatoires
and the original notion devised by Arvid Pardo suggests that the common heritage of
mankind encompasses both the Area (as a physical medium) and the natural
non-living resources therein.
29 As defined in the Convention, the “Area” is the
seabed, ocean floor and subsoil thereof beyond the limits of national jurisdiction,
30
while “resources” are solely the “solid, liquid or gaseous in situ in the Area at or
beneath the seabed”, i.e. non-living resources alone.
31 Altogether, the common
heritage of mankind is beyond state appropriation and beyond any claims of
sovereignty.
32
International lawyers, in general, recognize the common heritage of mankind as a
key principle of general international law, applicable initially to space law and the
law of the sea, but nowadays to other fields, such as international environmental law.
That new principle, one the most innovative legal constructs of the last century, is at
the core of the establishment of an international administration for areas open to the
use of all states, or as some scholars name it, the international commons, such as the
deep-sea, outer space bodies or elements of the Antarctic environment.
One of the principle’s main features is to embrace humankind as the main
recipient of rights valid in the Area, as well the beneficiary of activities happening
in the seabed and subsoil beyond national jurisdiction.
33 The use of that concept does
raise, however, questions. Whether the phrase “humankind” possesses any legal
meaning, or whether it is purely political is one of the difficulties related to the
emergence of mankind as an addressee of rights under UNCLOS. Since the adoption
of the Convention, scholars have debated whether a new subject of international law
was brewed, one distinct from states and from the international community. In this
regard, Rüdiger Wolfrum notes that the Convention expressly mentions the peoples
29 Art. 136, UNCLOS, on the common heritage of mankind.
30 Art. 1, paragraph 1(a), UNCLOS, on the use of terms and scope of the Convention.
31 Art. 133 (a) UNCLOS, on the use of terms of Part XI, the Area.
32 Art. 137, paragraph 1, UNCLOS, on the legal status of the Area and its resources.
33 Art. 137, paragraph 2, UNCLOS states that “all rights in the resources of the Area are vested in
mankind as a whole, on whose behalf the Authority shall act” (emphasis added).
5.3 The Outer Continental Shelf and the Area
117
continental shelf beyond 200 nm, what makes one still wonder if the continental
shelf regime somehow poses a threat to the definition and management of the Area.
5.3.1 Relationship Between the Common Heritage
of Mankind Principle and the Definition of the Outer
Limits of the Continental Shelf
A combined reading of Part XI UNCLOS, the Convention’s travaux preparatoires
and the original notion devised by Arvid Pardo suggests that the common heritage of
mankind encompasses both the Area (as a physical medium) and the natural
non-living resources therein.
29 As defined in the Convention, the “Area” is the
seabed, ocean floor and subsoil thereof beyond the limits of national jurisdiction,
30
while “resources” are solely the “solid, liquid or gaseous in situ in the Area at or
beneath the seabed”, i.e. non-living resources alone.
31 Altogether, the common
heritage of mankind is beyond state appropriation and beyond any claims of
sovereignty.
32
International lawyers, in general, recognize the common heritage of mankind as a
key principle of general international law, applicable initially to space law and the
law of the sea, but nowadays to other fields, such as international environmental law.
That new principle, one the most innovative legal constructs of the last century, is at
the core of the establishment of an international administration for areas open to the
use of all states, or as some scholars name it, the international commons, such as the
deep-sea, outer space bodies or elements of the Antarctic environment.
One of the principle’s main features is to embrace humankind as the main
recipient of rights valid in the Area, as well the beneficiary of activities happening
in the seabed and subsoil beyond national jurisdiction.
33 The use of that concept does
raise, however, questions. Whether the phrase “humankind” possesses any legal
meaning, or whether it is purely political is one of the difficulties related to the
emergence of mankind as an addressee of rights under UNCLOS. Since the adoption
of the Convention, scholars have debated whether a new subject of international law
was brewed, one distinct from states and from the international community. In this
regard, Rüdiger Wolfrum notes that the Convention expressly mentions the peoples
29 Art. 136, UNCLOS, on the common heritage of mankind.
30 Art. 1, paragraph 1(a), UNCLOS, on the use of terms and scope of the Convention.
31 Art. 133 (a) UNCLOS, on the use of terms of Part XI, the Area.
32 Art. 137, paragraph 1, UNCLOS, on the legal status of the Area and its resources.
33 Art. 137, paragraph 2, UNCLOS states that “all rights in the resources of the Area are vested in
mankind as a whole, on whose behalf the Authority shall act” (emphasis added).
5.3 The Outer Continental Shelf and the Area
117