That a pattern of argumentation is to be found with relative frequency in specialized
literature of the field, according to which the increase of coastal state’s competences
over larger maritime spaces offshore leads to less stability in the ordre publique
océanique, therefore posing greater hazard to principles dear to the law of the sea,
such as the very common heritage of mankind, the protection of the marine environment, among others. A critique to such scare-mongering against the jurisdictional
assertions of coastal states is formulated in Chap. 6.
Finally, specialized literature occasionally depicts an excessively impotent
Authority and an equally powerless international community, when criticizing the
current governance edifice of the Area.
90 Sure, the ISA is not mandated to intervene
in delineation processes between coastal states and the CLCS. It has also been said to
have no legal capacity to question judicially excessive national claims for outer
continental shelves. And yes, the Authority was given no explicit locus standi before
adjudication bodies as specified by the dispute settlement rules of the Convention’s
Part XV.
However, UNCLOS does attribute to the ISA the major responsibility for
safeguarding the common heritage of mankind,
91 a duty which comprises insurgence
against abusive unilateral encroachment on the Area. To protect the community
commons of the Area and the natural resources thereof is one of the main purposes of
the Authority, acting on behalf of humankind. A possible avenue for legal action
would, thus, be the to provoke the Seabed Disputes Chamber, in its contentious
jurisdiction, to decide upon conflicts involving the Area.
92 That Chamber operates
within the structure of the ITLOS and has jurisdiction, among others, over disputes
with respect to “acts or omissions of the Authority or of a State Party alleged to be in
violation of this Part or the Annexes relating thereto or of rules, regulations and
procedures of the Authority adopted in accordance therewith” (emphasis added).
93
Such a dispute may be referred to the Chamber by the ISA Council, as UNCLOS
grants the Council powers to “institute proceedings on behalf of the Authority before
the Seabed Disputes Chamber in cases of non-compliance”.
94 As such, an eventual
encroachment upon the Area could be judicially questioned before that Chamber of
the ITLOS.
In addition to that, even assuming that the Authority (and its Council) has its
hands entirely tied, and the alternative suggested above would not be accepted
before an international tribunal, individual states are still legally entitled to defend
90 Vicente Marotta Rangel, for instance, considered it deplorable that “la Convention n’est pas
accordé à l’Autorité (des fonds marins) le pouvoir de négocier avec l’État côtier leurs frontières
communes”. See Rangel (1985), p. 364.
91 Art. 137, paragraph 2 of the Convention.
92 Vicente Marotta Rangel had raised that possibility a while ago. For the Brazilian scholar, “under
Part XI it would be able to accede to the Sea-Bed Disputes Chamber, to its contentious and advisory
jurisdiction, since some conditions specified in the LOSC, Arts. 187 (b) (i) and 191 are effectively
met”. See Marotta Rangel (2006), p. 362.
93 Art. 187 (b) (i), UNCLOS, on the jurisdiction of the Seabed Disputes Chamber.
94 Art. 162, paragraph 2 (u), UNCLOS, on the powers of the ISA Council.
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5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .
literature of the field, according to which the increase of coastal state’s competences
over larger maritime spaces offshore leads to less stability in the ordre publique
océanique, therefore posing greater hazard to principles dear to the law of the sea,
such as the very common heritage of mankind, the protection of the marine environment, among others. A critique to such scare-mongering against the jurisdictional
assertions of coastal states is formulated in Chap. 6.
Finally, specialized literature occasionally depicts an excessively impotent
Authority and an equally powerless international community, when criticizing the
current governance edifice of the Area.
90 Sure, the ISA is not mandated to intervene
in delineation processes between coastal states and the CLCS. It has also been said to
have no legal capacity to question judicially excessive national claims for outer
continental shelves. And yes, the Authority was given no explicit locus standi before
adjudication bodies as specified by the dispute settlement rules of the Convention’s
Part XV.
However, UNCLOS does attribute to the ISA the major responsibility for
safeguarding the common heritage of mankind,
91 a duty which comprises insurgence
against abusive unilateral encroachment on the Area. To protect the community
commons of the Area and the natural resources thereof is one of the main purposes of
the Authority, acting on behalf of humankind. A possible avenue for legal action
would, thus, be the to provoke the Seabed Disputes Chamber, in its contentious
jurisdiction, to decide upon conflicts involving the Area.
92 That Chamber operates
within the structure of the ITLOS and has jurisdiction, among others, over disputes
with respect to “acts or omissions of the Authority or of a State Party alleged to be in
violation of this Part or the Annexes relating thereto or of rules, regulations and
procedures of the Authority adopted in accordance therewith” (emphasis added).
93
Such a dispute may be referred to the Chamber by the ISA Council, as UNCLOS
grants the Council powers to “institute proceedings on behalf of the Authority before
the Seabed Disputes Chamber in cases of non-compliance”.
94 As such, an eventual
encroachment upon the Area could be judicially questioned before that Chamber of
the ITLOS.
In addition to that, even assuming that the Authority (and its Council) has its
hands entirely tied, and the alternative suggested above would not be accepted
before an international tribunal, individual states are still legally entitled to defend
90 Vicente Marotta Rangel, for instance, considered it deplorable that “la Convention n’est pas
accordé à l’Autorité (des fonds marins) le pouvoir de négocier avec l’État côtier leurs frontières
communes”. See Rangel (1985), p. 364.
91 Art. 137, paragraph 2 of the Convention.
92 Vicente Marotta Rangel had raised that possibility a while ago. For the Brazilian scholar, “under
Part XI it would be able to accede to the Sea-Bed Disputes Chamber, to its contentious and advisory
jurisdiction, since some conditions specified in the LOSC, Arts. 187 (b) (i) and 191 are effectively
met”. See Marotta Rangel (2006), p. 362.
93 Art. 187 (b) (i), UNCLOS, on the jurisdiction of the Seabed Disputes Chamber.
94 Art. 162, paragraph 2 (u), UNCLOS, on the powers of the ISA Council.
130
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .