who have not attained full independence or other self-governing status as beneficiaries to the exploitation of the seabed.
34
As a consequence, it would be unproblematic to claim that “humankind” encompasses more than the notion of sovereign states recognized by international law, what
means that the application of the common heritage principle shall bear in mind
peoples not unanimously recognized as states, as the Palestinians. Interestingly,
some third world approaches to international law could also claim that social
movements (or civil society movements) be taken as composing particles of that
“humankind”, as a means to foster increased participation of civil society representatives within the ocean and deep-sea governance schemes, thereby adding transparency, legitimacy and crafting an international law informed by inputs from those
“below”—in a sort of bottom-up dynamics.
35 Regardless of how beneficial such a
hypothesis would be, it escapes the purpose of this work to scrutinize it any deeper; it
suffices to recognize sovereign states as the ultimate effective participants in the
legal and economic regime governing the Area and the implementers of the common
heritage principle, alongside the ISA.
The main issue at discussion here is the interaction between rules applicable to the
outer continental shelf and those rules governing the seabed, an analysis that rests on
the scope and implementation of the common heritage principle. As rightfully put by
Barbara Kwiatkowska and other scholars, the materialization of Art. 76 UNCLOS
and the extended continental shelf is “closely tied to the concept of the common
heritage of mankind”.
36 Despite the fact that the principle per se is not applicable to
maritime zones within national jurisdiction, the common heritage’s content produces
a “spillover effect” over the continental shelf regime, as analyzed below. As such,
one ought to understand the common heritage principle, so as to grasp the legal
overlaps alive between the regimes of the Area and the continental shelf. It is, thus
paramount to shed some light on the emergence of the principle at stake, followed by
an analysis of the content of that novel legal construct.
The rise of the common heritage principle results from a push to internationalize
the deep seabed and meant a restriction on coastal states’ territorial ambitions
towards submarine areas of the globe. Once again, the 1945 Truman Proclamation
and the 1958 CSC can be seen as the paradigmatic events which triggered international reaction against two potential threats to the public order of the oceans: firstly,
the likelihood of coastal states placing larger portion of the ocean floor under
national jurisdiction; and secondly, pressure by maritime powers towards pre preservation of freedoms of the seas worldwide, namely freedom to exploit the seabed
beyond national jurisdiction. Heated debates followed those two events during the
1960s, time in which the common heritage of mankind embryo began to mature,
showing that the principle should not be regarded as an unpredicted creation, a
34 See Wolfrum (1983), p. 318.
35 For more on resistance to traditional views of state-centered international law, see generally
Rajagopal (2003).
36 Kwiatkowska (1991), p. 157.
118
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .
34
As a consequence, it would be unproblematic to claim that “humankind” encompasses more than the notion of sovereign states recognized by international law, what
means that the application of the common heritage principle shall bear in mind
peoples not unanimously recognized as states, as the Palestinians. Interestingly,
some third world approaches to international law could also claim that social
movements (or civil society movements) be taken as composing particles of that
“humankind”, as a means to foster increased participation of civil society representatives within the ocean and deep-sea governance schemes, thereby adding transparency, legitimacy and crafting an international law informed by inputs from those
“below”—in a sort of bottom-up dynamics.
35 Regardless of how beneficial such a
hypothesis would be, it escapes the purpose of this work to scrutinize it any deeper; it
suffices to recognize sovereign states as the ultimate effective participants in the
legal and economic regime governing the Area and the implementers of the common
heritage principle, alongside the ISA.
The main issue at discussion here is the interaction between rules applicable to the
outer continental shelf and those rules governing the seabed, an analysis that rests on
the scope and implementation of the common heritage principle. As rightfully put by
Barbara Kwiatkowska and other scholars, the materialization of Art. 76 UNCLOS
and the extended continental shelf is “closely tied to the concept of the common
heritage of mankind”.
36 Despite the fact that the principle per se is not applicable to
maritime zones within national jurisdiction, the common heritage’s content produces
a “spillover effect” over the continental shelf regime, as analyzed below. As such,
one ought to understand the common heritage principle, so as to grasp the legal
overlaps alive between the regimes of the Area and the continental shelf. It is, thus
paramount to shed some light on the emergence of the principle at stake, followed by
an analysis of the content of that novel legal construct.
The rise of the common heritage principle results from a push to internationalize
the deep seabed and meant a restriction on coastal states’ territorial ambitions
towards submarine areas of the globe. Once again, the 1945 Truman Proclamation
and the 1958 CSC can be seen as the paradigmatic events which triggered international reaction against two potential threats to the public order of the oceans: firstly,
the likelihood of coastal states placing larger portion of the ocean floor under
national jurisdiction; and secondly, pressure by maritime powers towards pre preservation of freedoms of the seas worldwide, namely freedom to exploit the seabed
beyond national jurisdiction. Heated debates followed those two events during the
1960s, time in which the common heritage of mankind embryo began to mature,
showing that the principle should not be regarded as an unpredicted creation, a
34 See Wolfrum (1983), p. 318.
35 For more on resistance to traditional views of state-centered international law, see generally
Rajagopal (2003).
36 Kwiatkowska (1991), p. 157.
118
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .