zone, the exclusive economic zone (hereinafter, EEZ), and the CS.
20 Second, they
were reduced by the regulation of mining activity in the seabed and ocean floor and
subsoil thereof beyond the limits of national jurisdiction, the so-called Area, and the
recognition of the Area and its resources as common heritage of mankind.
21 Thus,
the situation today is not the one that has always existed, and it may not correspond
to the future situation either.
Currently, as set out in UNCLOS,
22 international law recognises two legal
regimes in ABNJs: the high seas regime and the Area regime. The overlap between
the two has been highlighted by some authors and refuted by others.
23 The wording
of UNCLOS certainly does pose challenges, as it refers to both the high seas and the
Area not only as “legal regimes” but also as “geographic spaces” (through the high
seas, on the high seas, from the high seas, activities in the Area, research in the Area,
etc.).
24 This double meaning, i.e., the use of the same term to refer to a legal regime
and to its geographic scope, is also the case with regard to some areas under national
jurisdiction where the geographical space is not subject to a single legal regime (the
contiguous zone and the EEZ), but in that case the framework is not discussed.
25 The
situation is different with the Area and the high seas.
It is clear that the high seas regime is not a substitute for the Area regime, but
doubts arise regarding the application of the high seas regime to the seabed and
ocean floor and subsoil thereof beyond the limits of national jurisdiction (hereinafter,
deep seabed) in a suppletive capacity, i.e. as a subsidiary source of law for issues not
20 Contiguous zone (Art. 33 UNCLOS), EEZ (Arts 55–75 UNCLOS) and CS (Arts 76–85
UNCLOS).
21 The Area (Arts 133–191 UNCLOS).
22 UNCLOS is not a universal treaty. However, since a large number of its provisions are customary
law, it is a universal reference. See e.g. Casado Raigón (2014) and Treves (2008).
23 Art. 86 UNCLOS: “The provisions of this Part [Part VII: High seas] apply 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, or in the archipelagic waters of an archipelagic State (. . .)”. Based on Art. 86 UNCLOS,
Molenaar and Oude Elferink (2009, p. 7) affirm that these two regimes “overlap spatially” because
“the high seas regime is not only applicable to the water column, but also to the seabed and subsoil”.
In contrast, Tladi (2014, pp. 118–119) states: “While a literal reading of this provision defining the
high seas [Art. 86] might suggest that the high seas include the Area, the Area is governed by a
different part of the convention, namely Part XI. The Area, defined as ‘the seabed and ocean floor
and subsoil thereof, beyond the limits of national jurisdiction,’ is thus not covered by the provision
of UNCLOS relating to the high seas.”
24 On the high seas, see, e.g.: Art. 36 (a route through the high seas); Art. 94 (navigation on the high
seas); Art. 109 (unauthorised broadcasting from the high seas); Art. 116 (right to fish on the high
seas); etc. Regarding the Area, several graphical expressions are used. See, e.g.: Art. 137 (“legal
status of the Area and its resources”); Art. 147 (“activities in the Area and in the marine environment”); Art. 141 (use of the Area); Art. 147 (activities in the Area); Art. 256 (research in the
Area); etc.
25 On the one hand, there is the overlap between the contiguous zone (Art. 33 UNCLOS) and the
EEZ; on the other, there is a specific reference of the EEZ regime to the high seas regime (Art.
58 UNCLOS). Only the “contiguous zone” is referred to as a geographical space in relation to the
competences of control granted to the state under Art. 33 UNCLOS.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
447
20 Second, they
were reduced by the regulation of mining activity in the seabed and ocean floor and
subsoil thereof beyond the limits of national jurisdiction, the so-called Area, and the
recognition of the Area and its resources as common heritage of mankind.
21 Thus,
the situation today is not the one that has always existed, and it may not correspond
to the future situation either.
Currently, as set out in UNCLOS,
22 international law recognises two legal
regimes in ABNJs: the high seas regime and the Area regime. The overlap between
the two has been highlighted by some authors and refuted by others.
23 The wording
of UNCLOS certainly does pose challenges, as it refers to both the high seas and the
Area not only as “legal regimes” but also as “geographic spaces” (through the high
seas, on the high seas, from the high seas, activities in the Area, research in the Area,
etc.).
24 This double meaning, i.e., the use of the same term to refer to a legal regime
and to its geographic scope, is also the case with regard to some areas under national
jurisdiction where the geographical space is not subject to a single legal regime (the
contiguous zone and the EEZ), but in that case the framework is not discussed.
25 The
situation is different with the Area and the high seas.
It is clear that the high seas regime is not a substitute for the Area regime, but
doubts arise regarding the application of the high seas regime to the seabed and
ocean floor and subsoil thereof beyond the limits of national jurisdiction (hereinafter,
deep seabed) in a suppletive capacity, i.e. as a subsidiary source of law for issues not
20 Contiguous zone (Art. 33 UNCLOS), EEZ (Arts 55–75 UNCLOS) and CS (Arts 76–85
UNCLOS).
21 The Area (Arts 133–191 UNCLOS).
22 UNCLOS is not a universal treaty. However, since a large number of its provisions are customary
law, it is a universal reference. See e.g. Casado Raigón (2014) and Treves (2008).
23 Art. 86 UNCLOS: “The provisions of this Part [Part VII: High seas] apply 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, or in the archipelagic waters of an archipelagic State (. . .)”. Based on Art. 86 UNCLOS,
Molenaar and Oude Elferink (2009, p. 7) affirm that these two regimes “overlap spatially” because
“the high seas regime is not only applicable to the water column, but also to the seabed and subsoil”.
In contrast, Tladi (2014, pp. 118–119) states: “While a literal reading of this provision defining the
high seas [Art. 86] might suggest that the high seas include the Area, the Area is governed by a
different part of the convention, namely Part XI. The Area, defined as ‘the seabed and ocean floor
and subsoil thereof, beyond the limits of national jurisdiction,’ is thus not covered by the provision
of UNCLOS relating to the high seas.”
24 On the high seas, see, e.g.: Art. 36 (a route through the high seas); Art. 94 (navigation on the high
seas); Art. 109 (unauthorised broadcasting from the high seas); Art. 116 (right to fish on the high
seas); etc. Regarding the Area, several graphical expressions are used. See, e.g.: Art. 137 (“legal
status of the Area and its resources”); Art. 147 (“activities in the Area and in the marine environment”); Art. 141 (use of the Area); Art. 147 (activities in the Area); Art. 256 (research in the
Area); etc.
25 On the one hand, there is the overlap between the contiguous zone (Art. 33 UNCLOS) and the
EEZ; on the other, there is a specific reference of the EEZ regime to the high seas regime (Art.
58 UNCLOS). Only the “contiguous zone” is referred to as a geographical space in relation to the
competences of control granted to the state under Art. 33 UNCLOS.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
447