reduction is the continental shelf regime, which regulates the seafloor and had been
in place way before the emergence of the EEZ, since the Truman Proclamations.
Secondly, the regime for the Area does not relate to living resources, but solely to
non-living ones. And finally, the deep seabed beyond 200 nm is likely have most of
deep-sea minerals.
89 Therefore, in our view, it is rather unlikely that the creation of
the EEZ affected the common heritage principle (both in theory and practice) in a
significant way.
90
Scholars have also expressed uneasiness with undue restrictions to scientific
research in maritime zones under coastal state jurisdiction, which renders the
planning and execution of research projects therein more problematic and expensive.
91 The practice of creeping jurisdiction would be, thus, especially nefarious with
regard to scientific projects aiming at enhanced knowledge of the world oceans. In
the opinion of Helmut Türk, “the domestic legislation of certain States does not
reflect the balance achieved with respect to marine scientific research between the
interests of coastal and other States in UNCLOS”.
92 The problem with this argument
is that it equates interests of researched and researching states, and assumes all
scientific research conducted in other countries’ EEZ would be pure and unrelated to
commercial intents, but the interests at stake are not the same. The bulk of scientific
research conducted worldwide is commercially-oriented and it is natural that coastal
states interpret the Convention so as to shield themselves against foreign surveys
which aim at assessing the resource potential within those coastal states’ maritime
zones. If it were not for some restriction on researching rights, in commerciallyoriented investigations, the law of the sea would have perpetuated the unfair pattern
of colonial spoliation in place in many regions of the world at least until 1970s, by
further guaranteeing privileged knowledge of the seabed to technically advanced
states.
93
89 Apart from the Pacific Ocean, where deep-sea minerals abound within EEZ of island states, the
remaining mineral deposits occur beyond national jurisdictions. See German Marine Research
Consortium, Resource Assessment of Marine Mineral Deposits, online. Available at: http://www.
deutsche-meeresforschung.de/en/sg_mineral_resources. Accessed 10 April 2020.
90 That meant a much stronger blow to the common heritage principle was the adoption of the 1994
Implementing Agreement, which was crafted to satisfy demands and needs of a few developed
countries, particularly the United States. The instrument made the principle more flexible than its
original design, without having resulted in the adherence by the United States to UNCLOS, nor to
the deep-sea mining regime. For a similar view, see Anand (2004), p. 196.
91 Türk (2012), p. 163.
92 Id. 163.
93 To some authors, the colonial nature of International Law is still there a key feature in the
discipline. It is the case of scholars affiliated to the so-called Third World Approaches to International Law (TWAIL), such as Anthony Anghie, Balakrishnan Rajagopal, B.S. Chimni, R.P. Anand,
G. Galindo, amongst others. When it comes to the law of the sea, it is inevitable to attach the uses of
the oceans to the traditional unequal distribution of world riches. Thus, the new law of sea is usually
connected to the New International Economic Order (NIEO), which aimed at surpassing such
inequality and granting by legal terms more access to world’s riches, in which the rights and duties
of all the actors are fully protected. On the NIEO, see generally Makarczyk (1988).
158
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .
in place way before the emergence of the EEZ, since the Truman Proclamations.
Secondly, the regime for the Area does not relate to living resources, but solely to
non-living ones. And finally, the deep seabed beyond 200 nm is likely have most of
deep-sea minerals.
89 Therefore, in our view, it is rather unlikely that the creation of
the EEZ affected the common heritage principle (both in theory and practice) in a
significant way.
90
Scholars have also expressed uneasiness with undue restrictions to scientific
research in maritime zones under coastal state jurisdiction, which renders the
planning and execution of research projects therein more problematic and expensive.
91 The practice of creeping jurisdiction would be, thus, especially nefarious with
regard to scientific projects aiming at enhanced knowledge of the world oceans. In
the opinion of Helmut Türk, “the domestic legislation of certain States does not
reflect the balance achieved with respect to marine scientific research between the
interests of coastal and other States in UNCLOS”.
92 The problem with this argument
is that it equates interests of researched and researching states, and assumes all
scientific research conducted in other countries’ EEZ would be pure and unrelated to
commercial intents, but the interests at stake are not the same. The bulk of scientific
research conducted worldwide is commercially-oriented and it is natural that coastal
states interpret the Convention so as to shield themselves against foreign surveys
which aim at assessing the resource potential within those coastal states’ maritime
zones. If it were not for some restriction on researching rights, in commerciallyoriented investigations, the law of the sea would have perpetuated the unfair pattern
of colonial spoliation in place in many regions of the world at least until 1970s, by
further guaranteeing privileged knowledge of the seabed to technically advanced
states.
93
89 Apart from the Pacific Ocean, where deep-sea minerals abound within EEZ of island states, the
remaining mineral deposits occur beyond national jurisdictions. See German Marine Research
Consortium, Resource Assessment of Marine Mineral Deposits, online. Available at: http://www.
deutsche-meeresforschung.de/en/sg_mineral_resources. Accessed 10 April 2020.
90 That meant a much stronger blow to the common heritage principle was the adoption of the 1994
Implementing Agreement, which was crafted to satisfy demands and needs of a few developed
countries, particularly the United States. The instrument made the principle more flexible than its
original design, without having resulted in the adherence by the United States to UNCLOS, nor to
the deep-sea mining regime. For a similar view, see Anand (2004), p. 196.
91 Türk (2012), p. 163.
92 Id. 163.
93 To some authors, the colonial nature of International Law is still there a key feature in the
discipline. It is the case of scholars affiliated to the so-called Third World Approaches to International Law (TWAIL), such as Anthony Anghie, Balakrishnan Rajagopal, B.S. Chimni, R.P. Anand,
G. Galindo, amongst others. When it comes to the law of the sea, it is inevitable to attach the uses of
the oceans to the traditional unequal distribution of world riches. Thus, the new law of sea is usually
connected to the New International Economic Order (NIEO), which aimed at surpassing such
inequality and granting by legal terms more access to world’s riches, in which the rights and duties
of all the actors are fully protected. On the NIEO, see generally Makarczyk (1988).
158
6 Creeping Jurisdiction in the Law of the Sea: Threat to Navigational Freedoms or. . .