96
É. Jarmache
The world has changed since this time. Various major political, economic
and scientific shifts have altered many balances, but this principle has remained
invariant.
This is why Part XII of the Convention on the Law of the Sea, on the “protection and
preservation of the marine environment”, after having indicated in its introductory
article (article 192) that States have the obligation to protect and preserve the marine environment, is quick to reaffirm in the following article the sovereign right
of States to exploit their natural resources (article 193). The relationship that is to
exist for many years to come thus appears between the sovereign right to exploit
resources and the obligation to protect the marine environment, with a varying intensity between the two terms of this relationship from one period to another.
As if to prolong this situation, the Convention on Biological Diversity, adopted
in Rio in 1992, confirms the maintenance and ongoing relevance of this relationship
between sovereign right and environmental concern. In its article 3, entitled “Principle”, it is stated that “States have, in accordance with the Charter of the United
Nations and the principles of international law, the sovereign right to exploit their
own resources”.
Seabed and ocean floor resources within and beyond the limits of national jurisdiction are therefore not unrestricted. This is a major legal and political criterion in
a world that is thus undergoing a paradigm shift.
The Seabed Beyond National Jurisdiction
The granting of a legal status that exempts the seabed from the regime of the high
seas is an innovation that can be qualified as “revolutionary” in the law of the sea.
The 1982 United Nations Convention makes a distinct, clear-cut separation between
the water column and the seabed (and subsoil), that was not made by the 1958
Geneva Convention which only addressed the high seas and encompassed both elements in the regime of freedom of the high seas.
As a reminder, the definition of the high seas in the UNCLOS Convention makes
no reference to the seabed beyond national jurisdiction. The high seas, in this definition, are composed of all parts of the sea that are not included in the EEZ, in the
territorial sea or in the internal waters of a State. This is a clear indication that the
distinction between the water column and the seabed is no longer made beyond the
limits of national jurisdiction. Freedom remains to be the rule, such as a freedom
of navigation and overflight, as well as with greater relativity, freedom of marine
scientific research, fishing, cable- and pipeline-laying.
From the very first article of the UNCLOS Convention, a specific marine Area
is defined. The Area is composed of the seabed and ocean floor and subsoil thereof
beyond the limits of national jurisdiction; this clearly marks the desire for it to be
exempt from all sovereign rights of States. In reading the Convention, an obsession with this principle laid down in article 137, paragraph 1 appears to emerge:
É. Jarmache
The world has changed since this time. Various major political, economic
and scientific shifts have altered many balances, but this principle has remained
invariant.
This is why Part XII of the Convention on the Law of the Sea, on the “protection and
preservation of the marine environment”, after having indicated in its introductory
article (article 192) that States have the obligation to protect and preserve the marine environment, is quick to reaffirm in the following article the sovereign right
of States to exploit their natural resources (article 193). The relationship that is to
exist for many years to come thus appears between the sovereign right to exploit
resources and the obligation to protect the marine environment, with a varying intensity between the two terms of this relationship from one period to another.
As if to prolong this situation, the Convention on Biological Diversity, adopted
in Rio in 1992, confirms the maintenance and ongoing relevance of this relationship
between sovereign right and environmental concern. In its article 3, entitled “Principle”, it is stated that “States have, in accordance with the Charter of the United
Nations and the principles of international law, the sovereign right to exploit their
own resources”.
Seabed and ocean floor resources within and beyond the limits of national jurisdiction are therefore not unrestricted. This is a major legal and political criterion in
a world that is thus undergoing a paradigm shift.
The Seabed Beyond National Jurisdiction
The granting of a legal status that exempts the seabed from the regime of the high
seas is an innovation that can be qualified as “revolutionary” in the law of the sea.
The 1982 United Nations Convention makes a distinct, clear-cut separation between
the water column and the seabed (and subsoil), that was not made by the 1958
Geneva Convention which only addressed the high seas and encompassed both elements in the regime of freedom of the high seas.
As a reminder, the definition of the high seas in the UNCLOS Convention makes
no reference to the seabed beyond national jurisdiction. The high seas, in this definition, are composed of all parts of the sea that are not included in the EEZ, in the
territorial sea or in the internal waters of a State. This is a clear indication that the
distinction between the water column and the seabed is no longer made beyond the
limits of national jurisdiction. Freedom remains to be the rule, such as a freedom
of navigation and overflight, as well as with greater relativity, freedom of marine
scientific research, fishing, cable- and pipeline-laying.
From the very first article of the UNCLOS Convention, a specific marine Area
is defined. The Area is composed of the seabed and ocean floor and subsoil thereof
beyond the limits of national jurisdiction; this clearly marks the desire for it to be
exempt from all sovereign rights of States. In reading the Convention, an obsession with this principle laid down in article 137, paragraph 1 appears to emerge: