their interests over the Area by bringing up a case against other states before an
international adjudicating body. On the power of third states to question the delineation of outer limits, Rüdiger Wolfrum dismisses the argument that legal action by
any other coastal state party to the Convention would amount to an “actio popularis”,
which is traditionally non-accepted in international law. For the former ITLOS
Judge, potential mining states or states sponsoring contractors engaged in deep
seabed mining activities “have not only a general but also an individual interest in
potential mining sites not being taken from the Area” (emphasis added).
95 The road
for encroaching on the Area can be, thus, made a lot more difficult than some of the
criticisms analyzed supra may suggest.
In sum, the common heritage of mankind is an ambitious principle and, precisely
because of that, a difficult one to implement. It restricts both principles of freedoms
of the seas and territorial sovereignty of states, but ultimately leaves states plenty of
maneuver room as to how to implement the “benefit of mankind as a whole”
clause.
96 In order address some of the issues highlighted above, the international
community will necessitate new types of cooperation schemes, particularly between
the Authority and coastal states with an outer continental shelf.
97 As seen above, part
of the common heritage principle regulates a core provision of UNCLOS continental
shelf regime, namely the duty incumbent upon coastal states to share the financial
benefits of deep-sea mineral exploitation on the shelf beyond 200 nm. That intersection between the Area, the common heritage principle and the outer continental
shelf is the topic of the following item.
5.3.3 Revenue-Sharing Mechanism of the Outer
Continental Shelf
An important part of the intersection between the legal regimes established at
UNCLOS Part VI and Part XI is materialized in the obligation of coastal states to
share revenues deriving from the exploitation of non-living resources of the continental shelf beyond 200 nm—the so-called revenue-sharing mechanism. In fact, Art.
82 UNCLOS requires coastal states to make payments or contributions in kind in
respect of the exploitation of the non-living resources of the continental shelf beyond
200 nm, exempting only developing states who are net importers of the resources in
question from paying contributions to the Authority. This provision serves the cause
of protecting the common heritage principle and, as such, is believed to be a legal
tool against the “maritime expansionism of broad-margin states”.
98 Such a claim is
95 Wolfrum (2008), p. 13.
96 Art. 140, paragraph 1, UNCLOS, on the benefit of mankind.
97 Position held by Chircop (2011), p. 182.
98 Kwiatkowska (1991), p. 157.
5.3 The Outer Continental Shelf and the Area
131
international adjudicating body. On the power of third states to question the delineation of outer limits, Rüdiger Wolfrum dismisses the argument that legal action by
any other coastal state party to the Convention would amount to an “actio popularis”,
which is traditionally non-accepted in international law. For the former ITLOS
Judge, potential mining states or states sponsoring contractors engaged in deep
seabed mining activities “have not only a general but also an individual interest in
potential mining sites not being taken from the Area” (emphasis added).
95 The road
for encroaching on the Area can be, thus, made a lot more difficult than some of the
criticisms analyzed supra may suggest.
In sum, the common heritage of mankind is an ambitious principle and, precisely
because of that, a difficult one to implement. It restricts both principles of freedoms
of the seas and territorial sovereignty of states, but ultimately leaves states plenty of
maneuver room as to how to implement the “benefit of mankind as a whole”
clause.
96 In order address some of the issues highlighted above, the international
community will necessitate new types of cooperation schemes, particularly between
the Authority and coastal states with an outer continental shelf.
97 As seen above, part
of the common heritage principle regulates a core provision of UNCLOS continental
shelf regime, namely the duty incumbent upon coastal states to share the financial
benefits of deep-sea mineral exploitation on the shelf beyond 200 nm. That intersection between the Area, the common heritage principle and the outer continental
shelf is the topic of the following item.
5.3.3 Revenue-Sharing Mechanism of the Outer
Continental Shelf
An important part of the intersection between the legal regimes established at
UNCLOS Part VI and Part XI is materialized in the obligation of coastal states to
share revenues deriving from the exploitation of non-living resources of the continental shelf beyond 200 nm—the so-called revenue-sharing mechanism. In fact, Art.
82 UNCLOS requires coastal states to make payments or contributions in kind in
respect of the exploitation of the non-living resources of the continental shelf beyond
200 nm, exempting only developing states who are net importers of the resources in
question from paying contributions to the Authority. This provision serves the cause
of protecting the common heritage principle and, as such, is believed to be a legal
tool against the “maritime expansionism of broad-margin states”.
98 Such a claim is
95 Wolfrum (2008), p. 13.
96 Art. 140, paragraph 1, UNCLOS, on the benefit of mankind.
97 Position held by Chircop (2011), p. 182.
98 Kwiatkowska (1991), p. 157.
5.3 The Outer Continental Shelf and the Area
131