For instance, Ted McDorman, when commenting on the efforts and the “untold
millions” spent by coastal states to collect data of the seafloor adjacent to their coasts
and elaborate a submission to the CLCS, makes the following statement: “the ethos
of the 1970s, when there was the international political will to accept the Common
Heritage concept and a degree of global sharing increasingly appears to have been a
blip on the historic law-of-the-sea radar”.
81 That is a quite polemic affirmation, to
say the least. How can the communal ethos of the 1970s (provided there is such an
abstract phenomenon as the ethos of a decade) be challenged by coastal states’
efforts to operationalize a right of theirs, a right which was sculpted into the
Convention at the same time as the common heritage principle?
The author seems to romanticize the decade of UNCLOS negotiations, blurred by
the subjective perception that the general ethos of the time was one of prevalence of
the common heritage, as if the struggles to extend coastal state jurisdiction seawards
would not constitute part of the same ethos. Well, the push for internationalizing the
seabed was never unanimous, it came to life alongside pressure to expand coastal
state powers over natural resources offshore. Finally, the sentence seems to disregard
the fact that “a degree of global sharing” will also occur in the case of exploitation
beyond 200 nm, as the revenue-sharing mechanism enshrined in Art. 82 of the
Convention confirms. In sum, McDorman’s statement delivers the undesired effect
of pitting the outer continental shelf against the common heritage of mankind, as if
both concepts would have been bred and raised in a permanent tug-of-war.
Other criticisms have the unwanted impact of boiling down to one single cause all
the practical problems immanent to the implementation of the common heritage
principle: the territorial temptation of coastal states and the encroachments over the
Area. In a paper on the ISA and the common heritage on mankind, Erik Franckx
mentions only en vole d’oiseau the 1994 Implementing Agreement and the subsequent devastation to the principle’s hard core,
82 opting instead for crediting practical
challenges to the principle’s implementation mostly on the ill-equipment of the
Authority to tackle coastal states’ abusive intrusions in the Area.
The road to implementation of the common heritage principle, up to now, has
surely been a bumpy one. Coastal states may have a share on this, but a key
development in the law of the sea that deserves attention was the adoption of the
Implementing Agreement to Part XI in 1994.
83 In fact, changes brought about by
that instrument have diminished Third World countries’ ability to access both
research results and financial benefits obtained in the Area. That is due partially to
the fact that contractors have gained permission for free and corporate access to
seabed, i.e. unbound by the once existing obligation to transfer technology. Such an
alteration results partly from changes in world politics during the 1990s. On the one
81 McDorman (2015), p. 202.
82 Limitations such as the dropping of the obligation upon miners to pay fees prior to the commercial
extraction of mineral, or the dropping of technology transfer clauses have impaired the very essence
of the common heritage principle, as devised by Arvid Pardo.
83 Agreement relating to the Implementation of Part XI of UNCLOS, New York, 28 July 1994.
128
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .
millions” spent by coastal states to collect data of the seafloor adjacent to their coasts
and elaborate a submission to the CLCS, makes the following statement: “the ethos
of the 1970s, when there was the international political will to accept the Common
Heritage concept and a degree of global sharing increasingly appears to have been a
blip on the historic law-of-the-sea radar”.
81 That is a quite polemic affirmation, to
say the least. How can the communal ethos of the 1970s (provided there is such an
abstract phenomenon as the ethos of a decade) be challenged by coastal states’
efforts to operationalize a right of theirs, a right which was sculpted into the
Convention at the same time as the common heritage principle?
The author seems to romanticize the decade of UNCLOS negotiations, blurred by
the subjective perception that the general ethos of the time was one of prevalence of
the common heritage, as if the struggles to extend coastal state jurisdiction seawards
would not constitute part of the same ethos. Well, the push for internationalizing the
seabed was never unanimous, it came to life alongside pressure to expand coastal
state powers over natural resources offshore. Finally, the sentence seems to disregard
the fact that “a degree of global sharing” will also occur in the case of exploitation
beyond 200 nm, as the revenue-sharing mechanism enshrined in Art. 82 of the
Convention confirms. In sum, McDorman’s statement delivers the undesired effect
of pitting the outer continental shelf against the common heritage of mankind, as if
both concepts would have been bred and raised in a permanent tug-of-war.
Other criticisms have the unwanted impact of boiling down to one single cause all
the practical problems immanent to the implementation of the common heritage
principle: the territorial temptation of coastal states and the encroachments over the
Area. In a paper on the ISA and the common heritage on mankind, Erik Franckx
mentions only en vole d’oiseau the 1994 Implementing Agreement and the subsequent devastation to the principle’s hard core,
82 opting instead for crediting practical
challenges to the principle’s implementation mostly on the ill-equipment of the
Authority to tackle coastal states’ abusive intrusions in the Area.
The road to implementation of the common heritage principle, up to now, has
surely been a bumpy one. Coastal states may have a share on this, but a key
development in the law of the sea that deserves attention was the adoption of the
Implementing Agreement to Part XI in 1994.
83 In fact, changes brought about by
that instrument have diminished Third World countries’ ability to access both
research results and financial benefits obtained in the Area. That is due partially to
the fact that contractors have gained permission for free and corporate access to
seabed, i.e. unbound by the once existing obligation to transfer technology. Such an
alteration results partly from changes in world politics during the 1990s. On the one
81 McDorman (2015), p. 202.
82 Limitations such as the dropping of the obligation upon miners to pay fees prior to the commercial
extraction of mineral, or the dropping of technology transfer clauses have impaired the very essence
of the common heritage principle, as devised by Arvid Pardo.
83 Agreement relating to the Implementation of Part XI of UNCLOS, New York, 28 July 1994.
128
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .