If the answer is yes, then the existing regime for the Area, limited to mining
resources, would be incomplete.
39 Any suppletive application (as might be the case
with the high seas regime) and any subsequent development (such as the future
UNCLOS implementing agreement) would have to take this recognition as common
heritage of mankind into account.
40 And if, in addition, the sedentary species in the
ABNJs were considered part of the deep seabed instead of the water column (the
debate discussed in the previous section), they would also be common heritage of
mankind.
41 All this, in turn, raises a number of issues, such as the compatibility
between the high seas and common heritage of mankind, which has been addressed
both in the literature and politically.
42 This would be relevant in case of a suppletive
application of the high seas regime; however, it has also arisen in proposals to
recognise the high seas as common heritage of mankind.
43 On the other hand, would
the eventual consideration of sedentary species in the ABNJ as common heritage of
mankind be compatible with the fact that RFMO/As are the ones responsible for
managing sedentary species in ABNJs? These and others specific questions bring us
to the fundamental question of what common heritage of mankind means.
44 What
else does it mean, in addition to non-appropriation, which, on the other hand, also
applies in the high sea itself, although not to its resources?
45
Furthermore, if the Area were considered to be perfectly synonymous with the
deep seabed, the current Area regulation would also be incomplete with regard to the
institutional arrangement. Under the current framework, the application of the Area
regime to the marine genetic resources of the deep seabed would fall to the
International Seabed Authority, as the responsible organisation, which would require
39 According to that interpretation, Art. 133 UNCLOS would contain an instrumental and not
definitive definition of the resources of the Area, i.e. a definition for the sole effect of the only
regime currently established in the deep seabed, which is the mining regime.
40 Art. 311.6 UNCLOS: “States Parties agree that there shall be no amendments to the basic
principle relating to the common heritage of mankind set forth in Art. 136 and that they shall not
be party to any agreement in derogation thereof.”
41 In contrast to this possibility, Franckx (2007, p. 472), e.g., states that “the ‘common heritage of
mankind’ principle applicable in the ‘area’ does not concern living resources, but only mineral
resources”.
42 In the literature, see, e.g., Ridings (2018). Politically, see the following footnote.
43 In the political debate, guided by a practical strategy, some have defended their compatibility. As
Tladi (2014, pp. 122–124) points out, in the preparatory committee, developing states firmly
defended the common heritage of mankind principle, albeit with different approaches, ranging
from its application limited to the deep seabed (e.g. Costa Rica) to its application as a principle that
should govern the biodiversity of all ABNJs (e.g. Thailand, Trinidad and Tobago) or even the
assertion that the freedom of the high seas and the common heritage of mankind principles “are
complementary and harmonious” (Mexico).
44 The scope, content and legal status of the common heritage of mankind remain disputed. On this
debate in general, and with regard to the elements of common heritage principle in particular, see,
e.g.: Noyes (2012, pp. 450–454).
45 Art. 89 UNCLOS.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
451
resources, would be incomplete.
39 Any suppletive application (as might be the case
with the high seas regime) and any subsequent development (such as the future
UNCLOS implementing agreement) would have to take this recognition as common
heritage of mankind into account.
40 And if, in addition, the sedentary species in the
ABNJs were considered part of the deep seabed instead of the water column (the
debate discussed in the previous section), they would also be common heritage of
mankind.
41 All this, in turn, raises a number of issues, such as the compatibility
between the high seas and common heritage of mankind, which has been addressed
both in the literature and politically.
42 This would be relevant in case of a suppletive
application of the high seas regime; however, it has also arisen in proposals to
recognise the high seas as common heritage of mankind.
43 On the other hand, would
the eventual consideration of sedentary species in the ABNJ as common heritage of
mankind be compatible with the fact that RFMO/As are the ones responsible for
managing sedentary species in ABNJs? These and others specific questions bring us
to the fundamental question of what common heritage of mankind means.
44 What
else does it mean, in addition to non-appropriation, which, on the other hand, also
applies in the high sea itself, although not to its resources?
45
Furthermore, if the Area were considered to be perfectly synonymous with the
deep seabed, the current Area regulation would also be incomplete with regard to the
institutional arrangement. Under the current framework, the application of the Area
regime to the marine genetic resources of the deep seabed would fall to the
International Seabed Authority, as the responsible organisation, which would require
39 According to that interpretation, Art. 133 UNCLOS would contain an instrumental and not
definitive definition of the resources of the Area, i.e. a definition for the sole effect of the only
regime currently established in the deep seabed, which is the mining regime.
40 Art. 311.6 UNCLOS: “States Parties agree that there shall be no amendments to the basic
principle relating to the common heritage of mankind set forth in Art. 136 and that they shall not
be party to any agreement in derogation thereof.”
41 In contrast to this possibility, Franckx (2007, p. 472), e.g., states that “the ‘common heritage of
mankind’ principle applicable in the ‘area’ does not concern living resources, but only mineral
resources”.
42 In the literature, see, e.g., Ridings (2018). Politically, see the following footnote.
43 In the political debate, guided by a practical strategy, some have defended their compatibility. As
Tladi (2014, pp. 122–124) points out, in the preparatory committee, developing states firmly
defended the common heritage of mankind principle, albeit with different approaches, ranging
from its application limited to the deep seabed (e.g. Costa Rica) to its application as a principle that
should govern the biodiversity of all ABNJs (e.g. Thailand, Trinidad and Tobago) or even the
assertion that the freedom of the high seas and the common heritage of mankind principles “are
complementary and harmonious” (Mexico).
44 The scope, content and legal status of the common heritage of mankind remain disputed. On this
debate in general, and with regard to the elements of common heritage principle in particular, see,
e.g.: Noyes (2012, pp. 450–454).
45 Art. 89 UNCLOS.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
451