of mankind, which was already limited in scope by the 200-mile exclusive economic
zone”,
56 Syria,
57 Bulgaria, to whom the outer continental shelf implied an “appropriation of the ocean space”,
58 Libya,
59 Algeria,
60 Ghana,
61 among others.
62 Despite
the organized aversion to the outer continental shelf and the push towards setting a
greater portion of the seafloor beyond national appropriation, compromises were
struck. The arm wrestling came to an end with the creation of a pioneering maritime
zone, the Area, to be governed by an avantguardiste legal construct, the common
heritage principle.
The key tripod of the common heritage principle applicable to that novel zone
would, thus, be: non-appropriation, peaceful uses, common benefit. The first foot of
the tripod defines a specific status for the Area and its resources, rendering the deepsea resources beyond national jurisdiction as res communis and turning mankind into
the addressee of all rights over the resources of the Area.
63 It is, nonetheless, false to
refer to a legal private relationship of ownership in this case, as mankind (as a
collective and unidentifiable subject) shall not dispose nor alienate the resources. In
civil law, the res communis is precisely a good that cannot be subject to private
ownership, the usual example being the air we breathe. There is, thus, no a priori
ownership relation between mankind and the resources of the Area, except for the
relationships that come to exist in pursuance of the provisions and regulations of Part
XI UNCLOS. The difficult task of managing the Area and its resources on behalf of
mankind is attributed to the ISA.
Another key feature of the common heritage principle is to restrict utilization
exclusively for peaceful purposes, which forbids the “threat or use of force against
56 A/CONF.62/SR.138, 138th Plenary meeting Extract from the Official Records of the Third
United Nations Conference on the Law of the Sea, Volume XIV, para 131.
57 A/CONF.62/SR.139, 139th Plenary meeting, para 172.
58 A/CONF.62/SR.103, 103rd Plenary meeting Extract from the Official Records of the Third
United Nations Conference on the Law of the Sea, Volume IX, para 56.
59 According to the Libyan position, if the proposed international sea-bed authority was to have due
competence and to be able to explore and exploit efficiently the resources of such areas, the
continental shelf must not extend beyond the 200-mile limit. See A/CONF.62/SR.104, 104th
Plenary meeting, para 66.
60 The Algerian delegation fully supported the position of the Arab group, which would place a limit
on the prolongation of the continental shelf. Otherwise, the concept of the common heritage of
mankind would be infringed. Any formula which would have the effect of reducing the common
heritage of mankind could not be supported. Id. para 74.
61 To Ghana, it was essential that the outer limit of the continental shelf should not exceed
200 nautical miles if activities on the sea-bed beyond the limits of national jurisdiction were to be
regulated for the benefit of mankind as a whole, in accordance with the concept of the common
heritage of mankind. See A/CONF.62/SR.105, 105th Plenary meeting, para 26.
62 Such a view was shared by scholars to whom the extension of maritime zones under national
jurisdiction deprived the common heritage principle of its primary content and rendered it a mere
political slogan. See Vitzthum (1979), p. 769.
63 Art. 137, paragraph 2, UNCLOS, on the legal status of the Area and its resources.
122
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .
zone”,
56 Syria,
57 Bulgaria, to whom the outer continental shelf implied an “appropriation of the ocean space”,
58 Libya,
59 Algeria,
60 Ghana,
61 among others.
62 Despite
the organized aversion to the outer continental shelf and the push towards setting a
greater portion of the seafloor beyond national appropriation, compromises were
struck. The arm wrestling came to an end with the creation of a pioneering maritime
zone, the Area, to be governed by an avantguardiste legal construct, the common
heritage principle.
The key tripod of the common heritage principle applicable to that novel zone
would, thus, be: non-appropriation, peaceful uses, common benefit. The first foot of
the tripod defines a specific status for the Area and its resources, rendering the deepsea resources beyond national jurisdiction as res communis and turning mankind into
the addressee of all rights over the resources of the Area.
63 It is, nonetheless, false to
refer to a legal private relationship of ownership in this case, as mankind (as a
collective and unidentifiable subject) shall not dispose nor alienate the resources. In
civil law, the res communis is precisely a good that cannot be subject to private
ownership, the usual example being the air we breathe. There is, thus, no a priori
ownership relation between mankind and the resources of the Area, except for the
relationships that come to exist in pursuance of the provisions and regulations of Part
XI UNCLOS. The difficult task of managing the Area and its resources on behalf of
mankind is attributed to the ISA.
Another key feature of the common heritage principle is to restrict utilization
exclusively for peaceful purposes, which forbids the “threat or use of force against
56 A/CONF.62/SR.138, 138th Plenary meeting Extract from the Official Records of the Third
United Nations Conference on the Law of the Sea, Volume XIV, para 131.
57 A/CONF.62/SR.139, 139th Plenary meeting, para 172.
58 A/CONF.62/SR.103, 103rd Plenary meeting Extract from the Official Records of the Third
United Nations Conference on the Law of the Sea, Volume IX, para 56.
59 According to the Libyan position, if the proposed international sea-bed authority was to have due
competence and to be able to explore and exploit efficiently the resources of such areas, the
continental shelf must not extend beyond the 200-mile limit. See A/CONF.62/SR.104, 104th
Plenary meeting, para 66.
60 The Algerian delegation fully supported the position of the Arab group, which would place a limit
on the prolongation of the continental shelf. Otherwise, the concept of the common heritage of
mankind would be infringed. Any formula which would have the effect of reducing the common
heritage of mankind could not be supported. Id. para 74.
61 To Ghana, it was essential that the outer limit of the continental shelf should not exceed
200 nautical miles if activities on the sea-bed beyond the limits of national jurisdiction were to be
regulated for the benefit of mankind as a whole, in accordance with the concept of the common
heritage of mankind. See A/CONF.62/SR.105, 105th Plenary meeting, para 26.
62 Such a view was shared by scholars to whom the extension of maritime zones under national
jurisdiction deprived the common heritage principle of its primary content and rendered it a mere
political slogan. See Vitzthum (1979), p. 769.
63 Art. 137, paragraph 2, UNCLOS, on the legal status of the Area and its resources.
122
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .