General Considerations
The exploration and exploitation of natural resources in the deep seabed is a new subject in the law of the sea. At the end of the nineteenth century, polymetallic nodules were discovered in the Arctic Ocean off Siberia. During the 1872 1877 scientific expedition of HMS Challenger, they were found to occur in most oceans of the world. Polymetallic nodules, which were also called manganese nodules, are small brown-black balls, usually between 1 and 20 centimetres in diameter. In the 1950s, attention was drawn to the economic significance of the nodules. During the International Geophysical Year of 1957–1958, polymetallic nodules were collected on the Tuamotu plateau approximately 370 kilometres east of Tahiti at a depth of some 900 metres. These nodules proved to contain commercially valuable minerals, such as nickel, copper and cobalt. Thus the exploration and exploitation of polymetallic nodules have attracted growing attention. As noted, the management of the deep seabed resources gave an impetus to convene UNCLOS III. The LOSC devotes Part XI to the regime governing the Area.
Spatial Scope of the Area
The limits of the Area are the seaward limits of the continental shelf in the legal sense. It follows that the limits of the Area are 200 nautical miles from the baseline or the limit of the continental margin where it extends beyond 200 nautical miles. As noted earlier, rocks ‘which cannot sustain human habitation or economic life of their own’ have no EEZ nor
continental shelf. Hence, in the case of a rock, the limit of the Area exceptionally is the seaward limit of the territorial sea around the rock. The limits of the Area are determined by each State in conformity with international law.
Under Article 134(4) of the LOSC, the International Seabed Authority (hereinafter the Authority) is not entitled to affect the establishment of the outer limits of the continental shelf under Part VI or the validity of agreements relating to delimitation between States with opposite or adjacent coasts. The Authority only receives such charts or lists showing the outer limit lines of the continental shelf by virtue of Article 84(2) of the LOSC.
Raison d’eˆtre of the Principle of the Common Heritage of Mankind The Area is governed by the principle of the common heritage of mankind. While this principle had been already introduced into space law, the LOSC established a more advanced mechanism.
Before UNCLOS III, there were three different views relating to the legal status of natural resources in the deep seabed beyond the limits of national jurisdiction. According to the first interpretation, the seaward limit of coastal States’ continental shelves moved into deeper waters under the ‘exploitability’ criterion enshrined in Article 1 of the 1958 Geneva Convention on the Continental Shelf. According to this view, ultimately the whole ocean floor would be divided among coastal States. It follows that natural resources in the deep seabed would be subject to the sovereign rights of coastal States. By contrast, in the second view the deep seabed is res communis and, thus, the ocean beds as well as their natural resources would be subject to the freedom of the high seas. Consequently, whereas no State can appropriate the ocean floor, the area and its resources could be used by any State according to the freedom of the high seas. On the other hand, according to the third interpretation, the deep seabed as well as its natural resources should be treated as res nullius. In this view, mining States would be able to appropriate the ocean floor as well as its natural resources through occupation.
In spite of differences in opinion, arguably the practical result of those interpretations would be almost the same: only technologically developed States would be best placed to explore and exploit natural resources in the deep ocean floor. Further, unrestricted seabed mining would have negative impacts upon land-based exporters of the minerals concerned, in particular those which are developing States; such a situation would exacerbate uneven development between developed and developing countries. The consequence would not be acceptable to developing States, which called for the establishment of a New International Economic Order (NIEO). Hence it has been considered that neither the principle of sovereignty nor the principle of freedom could provide a legal framework ensuring the fair and equitable sharing of natural resources of the Area.
It is in this context that in 1967, Maltese Ambassador Dr Arvid Pardo made a historic proposal that the seabed and its natural resources beyond the limits of national jurisdiction should be the common heritage of mankind. This new proposal was to be discussed in a thirty-five State ad hoc committee, which was replaced in 1968 by the permanent Committee on the Peaceful Uses of the Sea-Bed and Ocean Floor beyond the Limits of National Jurisdiction. This Committee submitted reports to the 24th and 25th sessions of the UN General Assembly. In 1969, General Assembly Resolution 2574 D (XXIV), known as the Moratorium Resolution, declared that pending the establishment of an international regime, ‘States and persons, physical or juridical, are bound to refrain from all activities of exploitation of the resources of the area of the sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction’.
In 1970, the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction was adopted (hereinafter the 1970 Declaration). Principle 2 of the 1970 Declaration pronounced: ‘The area shall not be subject to appropriation by any means by States or persons, natural or judicial, and no State shall claim or exercise sovereignty or sovereign rights over any part thereof.’ At the same time, the 1970 Declaration explicitly recognised that the existing legal regime of the high seas did not provide substantive rules for regulating the exploration of the seabed area beyond the limits of national jurisdiction and the exploitation of its resources. Thus, the 1970 Declaration solemnly declared:
The sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction(hereafter referred to as the area), as well as the resources of the area, are the common heritage of mankind.
It is important to note that the principle of the common heritage of mankind came into existence in a situation where neither the principle of sovereignty nor that of freedom could provide a legal framework ensuring the equitable share of the benefit derived from natural resources of the Area. In fact, the application of the two traditional principles to the deep seabed was clearly negated in the 1970 Declaration.
Elements of the Principle of the Common Heritage of Mankind
Article 136 pronounces:
The Area and its resources are the common heritage of mankind. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act by virtue of Article 137(2). Under Article 133(a), ‘resources’ mean ‘all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules’. The principle of the common heritage of mankind in the LOSC is composed of three legal elements.
The first element is the non-appropriation of the Area as well as its natural resources. In this regard, Article 137(1) stipulates:
No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized.
Here the appropriation of the Area on the basis of the principle of sovereignty is clearly negated. At the same time, it should be noted that the appropriation of ‘its resources’ is also prohibited. It follows that there is no freedom to explore and exploit natural resources in the Area. On this point, the Area must be distinguished from res communis. Consequently, the two traditional principles in the law of the sea are excluded in the legal framework governing the Area. The second element concerns the benefit of mankind as a whole. Article 140(1) explicitly provides that activities in the Area shall be carried out for the benefit of mankind as a whole. Article 140(2) calls for the Authority to provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis, in accordance with Article 160(2)(f )(i). Thus the concept of the benefit of mankind as a whole and the equitable sharing of benefits are intimately intertwined. It can be said that the benefit of mankind as a whole is at the heart of the principle of the common heritage of mankind.
The third element pertains to the peaceful use of the Area. In this regard, Article 141 makes it explicit that the Area shall be open to use exclusively for peaceful purposes by all States.