analyzed below, alongside a discussion on the impacts of the birth of the common
heritage principle to the continental shelf regime.
It is uncontroversial that Arts. 82 and 76 UNCLOS have more in common than
the sheer blackletter of the law may suggest. The drafting history of the Convention
indicates that the revenue-sharing mechanism was a sort of quid pro quo for the outer
continental shelf beyond 200 nm.
99 Such revenue-sharing system consubstantiates
the second half of the compromise reached between broad-margin states and states
opposing the expansion of coastal state jurisdiction, together with the very possibility of exercising jurisdiction over the shelf beyond 200 nm. In other words, the
approval of Art. 76 was only made possible via concessions by broad-margin states
in return, agreeing to the equitable distribution of financial benefits of outer continental shelf exploitation, pursuant to Art. 160 (2) (f) (i) UNCLOS.
100
One of the reasons grounding the need for a compromise was the argument by
narrow-margin countries that the outer continental shelf would come to life at the
expense of the Area and the common heritage of mankind
101
—under the reasoning
that the outer continental shelf is no purely geological concept, having been given a
legal treatment via the formulae enshrined in Art. 76 (4) to (6) UNCLOS. Hence,
Art. 82 became a response in form of compensation to criticisms that the enlargement of the continental shelf beyond 200 nm would imply a reduction in size of the
common heritage of mankind.
102 This impression is consistent with several pronunciations made during the III UNCLOS. Thus, broad-margin states have agreed
(i) to “compensate” the international community for diminishing the potential size of
the Area;
103 and (ii) to contribute to the sharing of benefits from deep-sea mining.
99 ISA (2009), p. xv.
100 During negotiations, even liberal countries such as the United States considered that the payment
of royalties would be reasonable in light of the massiveness of natural resources that would be
placed under American jurisdiction with the approval of the Convention. As an analyst has put it,
“These royalty rates were negotiated by the U.S. Government with extensive input from U.S. oil and
natural gas interests. As oil and natural gas companies have recognized, the royalties are reasonable
in view of the immense value of the resources that would be made subject to the United States’
exclusive sovereign jurisdiction. The oil and natural gas companies—and the U.S. Treasury—
would be able to retain much more than the U.S. would be required to pay to the Seabed Authority.
Notwithstanding the required payments to the Seabed Authority, joining the Convention would be
overwhelmingly beneficial to U.S. economy and the U.S. Treasury.” Donoghue (2012), p. 5.
101 The revenue-sharing mechanism has also been interpreted as materializing the common heritage
principle, even if the application would take place within the coastal state’s jurisdiction and not in
the Area. It was the case of Shigeru Oda, to whom Art. 82 was “instituted in such a manner that the
concept of the common heritage of mankind plays a role in controlling over-expansion of the
exclusive interests of coastal States in their continental shelves”. See Oda (1989), p. xxxii. That
view, however, is discarded by the ISA, on the basis that Art. 82 UNCLOS was not meant by the
negotiating parties to be an implementation of the common heritage principle. What occurs is
merely the sharing of revenues, which is but one of the multiple facets of the principle.
102 This view is espoused, among others, by Galindo (2006), p. 266.
103 On the issue of a potential continental shelf “encroachment” over the Area, it could also be
sustained that there was no such intrusion, for two reasons. Firstly, both regimes were born at the
same time, with the signature of UNCLOS. Secondly, the geological continental margin has always
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5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .
heritage principle to the continental shelf regime.
It is uncontroversial that Arts. 82 and 76 UNCLOS have more in common than
the sheer blackletter of the law may suggest. The drafting history of the Convention
indicates that the revenue-sharing mechanism was a sort of quid pro quo for the outer
continental shelf beyond 200 nm.
99 Such revenue-sharing system consubstantiates
the second half of the compromise reached between broad-margin states and states
opposing the expansion of coastal state jurisdiction, together with the very possibility of exercising jurisdiction over the shelf beyond 200 nm. In other words, the
approval of Art. 76 was only made possible via concessions by broad-margin states
in return, agreeing to the equitable distribution of financial benefits of outer continental shelf exploitation, pursuant to Art. 160 (2) (f) (i) UNCLOS.
100
One of the reasons grounding the need for a compromise was the argument by
narrow-margin countries that the outer continental shelf would come to life at the
expense of the Area and the common heritage of mankind
101
—under the reasoning
that the outer continental shelf is no purely geological concept, having been given a
legal treatment via the formulae enshrined in Art. 76 (4) to (6) UNCLOS. Hence,
Art. 82 became a response in form of compensation to criticisms that the enlargement of the continental shelf beyond 200 nm would imply a reduction in size of the
common heritage of mankind.
102 This impression is consistent with several pronunciations made during the III UNCLOS. Thus, broad-margin states have agreed
(i) to “compensate” the international community for diminishing the potential size of
the Area;
103 and (ii) to contribute to the sharing of benefits from deep-sea mining.
99 ISA (2009), p. xv.
100 During negotiations, even liberal countries such as the United States considered that the payment
of royalties would be reasonable in light of the massiveness of natural resources that would be
placed under American jurisdiction with the approval of the Convention. As an analyst has put it,
“These royalty rates were negotiated by the U.S. Government with extensive input from U.S. oil and
natural gas interests. As oil and natural gas companies have recognized, the royalties are reasonable
in view of the immense value of the resources that would be made subject to the United States’
exclusive sovereign jurisdiction. The oil and natural gas companies—and the U.S. Treasury—
would be able to retain much more than the U.S. would be required to pay to the Seabed Authority.
Notwithstanding the required payments to the Seabed Authority, joining the Convention would be
overwhelmingly beneficial to U.S. economy and the U.S. Treasury.” Donoghue (2012), p. 5.
101 The revenue-sharing mechanism has also been interpreted as materializing the common heritage
principle, even if the application would take place within the coastal state’s jurisdiction and not in
the Area. It was the case of Shigeru Oda, to whom Art. 82 was “instituted in such a manner that the
concept of the common heritage of mankind plays a role in controlling over-expansion of the
exclusive interests of coastal States in their continental shelves”. See Oda (1989), p. xxxii. That
view, however, is discarded by the ISA, on the basis that Art. 82 UNCLOS was not meant by the
negotiating parties to be an implementation of the common heritage principle. What occurs is
merely the sharing of revenues, which is but one of the multiple facets of the principle.
102 This view is espoused, among others, by Galindo (2006), p. 266.
103 On the issue of a potential continental shelf “encroachment” over the Area, it could also be
sustained that there was no such intrusion, for two reasons. Firstly, both regimes were born at the
same time, with the signature of UNCLOS. Secondly, the geological continental margin has always
132
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .