hand, the 1970s witness the cooling of the Cold War, the reinforcement of multilateralism as a way to accommodate conflicting views, and the containment of the
American power—features which have undeniably benefited the negotiation and
adoption of UNCLOS. On the other hand, the early 1990s were rather influenced by
commercial ultraliberalism and the prevalence of hegemonic interests in the making
of a regime for the use of the ocean floor.
84
One of the voices critical to the attack on the original meaning of the common
heritage principle is R. P. Anand, to whom the concept was left as good as
“mutilated”. To that scholar, the modifications effected by the 1994 Agreement
shall lead to the exploitation of the deep seabed in “commercial terms, irrespective
of the needs and interests of the weaker members of the international community”.
85
From a critical perspective, such changes may be interpreted as having effectively
amended Part XI and core features of the common heritage principle, in violation of
Art. 311 (6) of the Convention (despite efforts by negotiating parties to conveniently
sell the move as an “implementing” effort).
86 By loosening the obligation to transfer
technology, deregulating deep-sea exploitation, and flirting with liberal and free
trade ideals, the adoption of the 1994 Agreement has shown how much international
lawyers in general, with a few exceptions, were subservient to political interests,
acting in order to justify the 1994 Agreement.
87
Regardless of the critiques to the loosening of the common heritage principle, it
would be exaggerated to dismiss efforts to create an international regime for the
submerged spaces beyond national jurisdiction as a failure. For Loureiro Bastos,
there is a strong international regime for the Area in place, which has gained a de
facto prevalence due to the customary nature of its rules, thereby producing conventional effects in relation to third states.
88 This prevalence, so Bastos, stems from
the fact that the majority of states especially interested in the use of mineral resources
of the Area are currently parties to UNCLOS and have been orderly complying the
Conventions stipulations on access to the common heritage of mankind.
89
Besides, the insistence in portraying coastal states’ jurisdictional ambitions as the
source of evil in the law of the sea does not help assess the difficulties ahead of the
international community regarding the application of the common heritage principle.
84 See Moreira and Silva (2010), p. 13.
85 Anand (2004), p. 196.
86 Art. 311, paragraph 6, UNCLOS stipulates that “States Parties agree that there shall be no
amendments to the basic principle relating to the common heritage of mankind set forth in Art.
136”.
87 Opinion embraced, among others, by Galindo (2006), p. 384.
88 Bastos (2012), p. 141.
89 A consequence of this claim would be that even non-parties to Convention would be obliged to
respect the international legal regime contained in Part XI. For Bastos, “coastal states cannot
interpret ‘sovereignty and ‘sovereign rights’ granted to them for the exploitation of mineral
resources in the submerged areas under their sovereignty or jurisdiction using the perspective of
the pursuing of strictly individual interests”—it is a restriction established by Art. 193 UNCLOS.
See Bastos (2012), p. 143.
5.3 The Outer Continental Shelf and the Area
129
American power—features which have undeniably benefited the negotiation and
adoption of UNCLOS. On the other hand, the early 1990s were rather influenced by
commercial ultraliberalism and the prevalence of hegemonic interests in the making
of a regime for the use of the ocean floor.
84
One of the voices critical to the attack on the original meaning of the common
heritage principle is R. P. Anand, to whom the concept was left as good as
“mutilated”. To that scholar, the modifications effected by the 1994 Agreement
shall lead to the exploitation of the deep seabed in “commercial terms, irrespective
of the needs and interests of the weaker members of the international community”.
85
From a critical perspective, such changes may be interpreted as having effectively
amended Part XI and core features of the common heritage principle, in violation of
Art. 311 (6) of the Convention (despite efforts by negotiating parties to conveniently
sell the move as an “implementing” effort).
86 By loosening the obligation to transfer
technology, deregulating deep-sea exploitation, and flirting with liberal and free
trade ideals, the adoption of the 1994 Agreement has shown how much international
lawyers in general, with a few exceptions, were subservient to political interests,
acting in order to justify the 1994 Agreement.
87
Regardless of the critiques to the loosening of the common heritage principle, it
would be exaggerated to dismiss efforts to create an international regime for the
submerged spaces beyond national jurisdiction as a failure. For Loureiro Bastos,
there is a strong international regime for the Area in place, which has gained a de
facto prevalence due to the customary nature of its rules, thereby producing conventional effects in relation to third states.
88 This prevalence, so Bastos, stems from
the fact that the majority of states especially interested in the use of mineral resources
of the Area are currently parties to UNCLOS and have been orderly complying the
Conventions stipulations on access to the common heritage of mankind.
89
Besides, the insistence in portraying coastal states’ jurisdictional ambitions as the
source of evil in the law of the sea does not help assess the difficulties ahead of the
international community regarding the application of the common heritage principle.
84 See Moreira and Silva (2010), p. 13.
85 Anand (2004), p. 196.
86 Art. 311, paragraph 6, UNCLOS stipulates that “States Parties agree that there shall be no
amendments to the basic principle relating to the common heritage of mankind set forth in Art.
136”.
87 Opinion embraced, among others, by Galindo (2006), p. 384.
88 Bastos (2012), p. 141.
89 A consequence of this claim would be that even non-parties to Convention would be obliged to
respect the international legal regime contained in Part XI. For Bastos, “coastal states cannot
interpret ‘sovereignty and ‘sovereign rights’ granted to them for the exploitation of mineral
resources in the submerged areas under their sovereignty or jurisdiction using the perspective of
the pursuing of strictly individual interests”—it is a restriction established by Art. 193 UNCLOS.
See Bastos (2012), p. 143.
5.3 The Outer Continental Shelf and the Area
129