Nations, est tout indiquée pour proposer au Gouvernement un moyen d’action avant
qu’il ne soit trop tard.”
45
Particularly, several arguments have been emphasized in favour of the application
of the principle of the common heritage of mankind to the MGRs, such as: (a) in the
UNGA resolution 2749 (XXV),
46 the Area and its resources were declared the
common heritage of mankind, the exploration and exploitation of which shall be
carried out for the benefit of mankind as a whole; (b) the common heritage of
mankind is a fundamental principle of the UNCLOS: it is captured in the preamble
and is also granted a special status—some say approximating the status of jus
cogens
47
—by virtue of Art. 311, par. 6, of UNCLOS.
48
In any case, the application of the regime of the common heritage of mankind to
the MGRS from ABNJ would result into these MGRs being vested in mankind as a
whole.
49
On the other hand, a group of mainly developed countries hold the view that the
applicable regime is that of the freedom of the High Seas, and not the principle of the
common heritage of mankind,
50 emphasizing the application of Part VII of
UNCLOS. In particular, Part VII applies to “all parts of the sea that are not included
in the exclusive economic zone, in the territorial sea or in the internal waters of a
State [. . .], as stated in the Art. 86 of UNCLOS. Art. 87 provides an illustrative list.
In the specific case, even though the exploration and exploitation of the MGRs from
ABNJ is not stated in Art. 87, the High Seas regime could apply. This consideration
is being supported by the fact that Part XI of UNCLOS only refers to mineral
resources. They point out that the application of the principle of common heritage
of mankind would remove an important incentive to invest in research and development, thereby ultimately depriving mankind of its benefits.
51 Besides, in response
to the suggestion to the principle that the marine genetic resource from an ABNJ
would be exploited on a first-come, first-served basis, it has been said
52 that the
activities in question would by no means be in an unrestricted fashion.
In this context, the High Seas freedoms shall be always exercised with due regard
for the interests of other States, as well as for the rights under UNCLOS in respect of
activities of the Area, as stated in Art. 87, par. 2, of UNCLOS. The Convention also
45 Société des Nations, Comité d’experts pour la codification progressive du droit international,
Rapport au Conseil de la Société des Nations, Genève, 1927, p. 123.
46 UNGA Resolution, 2749 (XXV), Declaration of Principles Governing the Seabed and the Ocean
Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, 17 December 1970,
GAOR 25th Session Supp. 28, 24.
47 Cf., Millicay (2015), p. 272 and spec. p. 285.
48 Cf., Millicay (2007), p. 739 and spec. p. 811.
49 About such position, cf., inter alia, Morris-Sharma (2016), pp. 79–81.
50 UNGA, Letter dated 25 July 2014 from the Co-Chairs of the Ad Hoc Open-ended Informal
Working Group to the President of the General Assembly, 23 July 2014, UN Doc. A/69/177, at
Annex, para. 48.
51 UNGA, letter dated 25 July 2014, cit., paras. 49, 51.
52 Cf., Morris-Sharma (2016), p. 78.
412
L. Riccardi
qu’il ne soit trop tard.”
45
Particularly, several arguments have been emphasized in favour of the application
of the principle of the common heritage of mankind to the MGRs, such as: (a) in the
UNGA resolution 2749 (XXV),
46 the Area and its resources were declared the
common heritage of mankind, the exploration and exploitation of which shall be
carried out for the benefit of mankind as a whole; (b) the common heritage of
mankind is a fundamental principle of the UNCLOS: it is captured in the preamble
and is also granted a special status—some say approximating the status of jus
cogens
47
—by virtue of Art. 311, par. 6, of UNCLOS.
48
In any case, the application of the regime of the common heritage of mankind to
the MGRS from ABNJ would result into these MGRs being vested in mankind as a
whole.
49
On the other hand, a group of mainly developed countries hold the view that the
applicable regime is that of the freedom of the High Seas, and not the principle of the
common heritage of mankind,
50 emphasizing the application of Part VII of
UNCLOS. In particular, Part VII applies to “all parts of the sea that are not included
in the exclusive economic zone, in the territorial sea or in the internal waters of a
State [. . .], as stated in the Art. 86 of UNCLOS. Art. 87 provides an illustrative list.
In the specific case, even though the exploration and exploitation of the MGRs from
ABNJ is not stated in Art. 87, the High Seas regime could apply. This consideration
is being supported by the fact that Part XI of UNCLOS only refers to mineral
resources. They point out that the application of the principle of common heritage
of mankind would remove an important incentive to invest in research and development, thereby ultimately depriving mankind of its benefits.
51 Besides, in response
to the suggestion to the principle that the marine genetic resource from an ABNJ
would be exploited on a first-come, first-served basis, it has been said
52 that the
activities in question would by no means be in an unrestricted fashion.
In this context, the High Seas freedoms shall be always exercised with due regard
for the interests of other States, as well as for the rights under UNCLOS in respect of
activities of the Area, as stated in Art. 87, par. 2, of UNCLOS. The Convention also
45 Société des Nations, Comité d’experts pour la codification progressive du droit international,
Rapport au Conseil de la Société des Nations, Genève, 1927, p. 123.
46 UNGA Resolution, 2749 (XXV), Declaration of Principles Governing the Seabed and the Ocean
Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, 17 December 1970,
GAOR 25th Session Supp. 28, 24.
47 Cf., Millicay (2015), p. 272 and spec. p. 285.
48 Cf., Millicay (2007), p. 739 and spec. p. 811.
49 About such position, cf., inter alia, Morris-Sharma (2016), pp. 79–81.
50 UNGA, Letter dated 25 July 2014 from the Co-Chairs of the Ad Hoc Open-ended Informal
Working Group to the President of the General Assembly, 23 July 2014, UN Doc. A/69/177, at
Annex, para. 48.
51 UNGA, letter dated 25 July 2014, cit., paras. 49, 51.
52 Cf., Morris-Sharma (2016), p. 78.
412
L. Riccardi