“lightning in a blue sky”. To the contrary, it embodies values, discussions and trends
of that time.
Juridically, the principle had its cornerstone a tick earlier, in the 1958 CSC—in a
quite paradoxical way. Art. 1 of the CSC defined continental shelf as the submarine
areas “to a depth of 200 meters or, beyond that limit, to where the depth of the
superjacent waters admits the exploitation of the natural resources of the said areas”,
only to enter history as one of the most disastrous provisions ever to be inserted in a
treaty that vital to humankind.
37 In fact, the provision allowed coastal states to place
potentially all submarine areas of the globe under some sort of coastal state jurisdiction—a move that triggered stark criticisms from the international community of
states.
38 Such dual criteria for the designation of the continental shelf (depth and
exploitability) was the reason both for the timid acceptance of the treaty and the
appearance of the idea of a “common heritage of mankind”, albeit not with those
terms.
39
It was understandable, thus, that the decade following the adoption of the CSC
witnessed discussions between universalism and particularism in the jurisdictional
division of the ocean. In the United States, the debate acquired greater proportions
for the development of the law of the sea. Following the Truman Proclamations, the
country was the stage of a fiery debate between opponents of a larger continental
shelf and those sympathetic to larger jurisdiction over the seafloor. Rivaling a larger
shelf, and siding with a doctrine of universalism in the division of the oceans, Louis
Henkin; supporting an expansion of the shelf as the advancement of particular
American interests, Luke Finley.
40 The controversy was at the core of the debate
between extending the continental shelf beyond geological criteria and
internationalizing the deep seabed.
At that point, on the political level, US President Lyndon Johnson formulates a
call for an internationally negotiated solution to the potential race for the unchecked
appropriation of the deep seabed. In Johnson’s words, the international community
must “ensure that the deep seas and the ocean bottoms are, and remain, the legacy of
all human beings”.
41 To that goal, international cooperation would be key in
preventing deep-sea mineral riches from enticing a “new form of colonial competition among the maritime nations”.
42
The semantic power of the phrase “common heritage of mankind”, which points
to the idea that international resources should be a “legacy to all human beings”,
combined with the tense international relations in the wake of the decolonization
37 Friedmann (1971), p. 759.
38 Judge Shigeru Oda was among the first ones to alert to the possibility of such a radical
interpretation of Art. 1 CSC. See Oda (1968), p. 10.
39 Galindo (2006), p. 107.
40 For more on the debate, see Henkin (1969) and Finley (1969).
41 President Lyndon B. Johnson, 2 Weekly Compilation of Presidential Documents, 930, July
13, 1966.
42 Idem.
5.3 The Outer Continental Shelf and the Area
119
of that time.
Juridically, the principle had its cornerstone a tick earlier, in the 1958 CSC—in a
quite paradoxical way. Art. 1 of the CSC defined continental shelf as the submarine
areas “to a depth of 200 meters or, beyond that limit, to where the depth of the
superjacent waters admits the exploitation of the natural resources of the said areas”,
only to enter history as one of the most disastrous provisions ever to be inserted in a
treaty that vital to humankind.
37 In fact, the provision allowed coastal states to place
potentially all submarine areas of the globe under some sort of coastal state jurisdiction—a move that triggered stark criticisms from the international community of
states.
38 Such dual criteria for the designation of the continental shelf (depth and
exploitability) was the reason both for the timid acceptance of the treaty and the
appearance of the idea of a “common heritage of mankind”, albeit not with those
terms.
39
It was understandable, thus, that the decade following the adoption of the CSC
witnessed discussions between universalism and particularism in the jurisdictional
division of the ocean. In the United States, the debate acquired greater proportions
for the development of the law of the sea. Following the Truman Proclamations, the
country was the stage of a fiery debate between opponents of a larger continental
shelf and those sympathetic to larger jurisdiction over the seafloor. Rivaling a larger
shelf, and siding with a doctrine of universalism in the division of the oceans, Louis
Henkin; supporting an expansion of the shelf as the advancement of particular
American interests, Luke Finley.
40 The controversy was at the core of the debate
between extending the continental shelf beyond geological criteria and
internationalizing the deep seabed.
At that point, on the political level, US President Lyndon Johnson formulates a
call for an internationally negotiated solution to the potential race for the unchecked
appropriation of the deep seabed. In Johnson’s words, the international community
must “ensure that the deep seas and the ocean bottoms are, and remain, the legacy of
all human beings”.
41 To that goal, international cooperation would be key in
preventing deep-sea mineral riches from enticing a “new form of colonial competition among the maritime nations”.
42
The semantic power of the phrase “common heritage of mankind”, which points
to the idea that international resources should be a “legacy to all human beings”,
combined with the tense international relations in the wake of the decolonization
37 Friedmann (1971), p. 759.
38 Judge Shigeru Oda was among the first ones to alert to the possibility of such a radical
interpretation of Art. 1 CSC. See Oda (1968), p. 10.
39 Galindo (2006), p. 107.
40 For more on the debate, see Henkin (1969) and Finley (1969).
41 President Lyndon B. Johnson, 2 Weekly Compilation of Presidential Documents, 930, July
13, 1966.
42 Idem.
5.3 The Outer Continental Shelf and the Area
119