Common interests in the ocean

Common Interests in the OceanRüdiger Wolfrum INTRODUCTION
Oceans (the high seas, the deep- ocean floor, and its subsoil) differ funda- mentally from territories or spaces under national jurisdiction. Whereas the management of the latter rests in the responsibility of a given state, activities in the former are governed by international law, implemented and enforced by individual states or organs of the community of states as the case may be. It is to be assumed from this very fact that community interests in the proper manage-ment and preservation of the oceans are prevailing. In this chapter, I address the legal regime for common interests in the oceans focusing on the lessons learned from Antarctica.
STATUS OF THE AREA
The most evident expression of common interests in the oceans is to be found in the common heritage principle. The term was formally introduced by Malta in a note verbale on 18 August 1967 (UN Doc. A/6695) requesting the introduction of an agenda item into the agenda of the UN General Assembly: “Declaration and treaty concerning the reservation exclusively for peaceful pur-poses of the sea- bed and the ocean floor, underlying the seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind.” The common heritage principle is an essential element, even the basis, of Part XI of the UN Convention on the Law of the Sea (1982) concerning the deep seabed, from where it has found its way into national legislation relating to seabed activities. It was also introduced in 1967 into the then beginning discus-sion on a legal regime for outer space and, to a lesser extent, later into the legal framework for Antarctica. The Agreement Relating to the Implementation of Rüdiger Wolfrum, Max Planck Institute for Part XI of the United Nations Convention on the Law of the Sea of 10 December Comparative Public Law and International Law, Im Neuenheimer Feld 535/69120 Heidel berg, 1982 (Implementation Agreement) has, in fact, modified the deep- seabed regime Germany. Correspondence: [email protected]. somewhat, but without sacrificing the core of the principle.
2 8 2 • S C I E N C E D I P L O M A C Y
In the UN Convention on the Law of the Sea the of the Sea goes a decisive step further. It states that no common heritage of mankind is set forth under differ- such claim or exercise of sovereignty or sovereign rights ent provisions. The Preamble refers to UN General As- or such appropriation shall be recognized. Thus, the pro- sembly Resolution 2749 (XXV) of 17 December 1970 (A/ hibition of occupation and appropriation has been given RES/25/2749) in which the UN General Assembly sol- a legal status, the effect of which is similar to that of jus emnly declared, inter alia, that the area of the “sea- bed cogens. Moreover, Article 137 of the UN Convention on and ocean floor, and the subsoil thereof, beyond the limits the Law of the Sea is phrased as an obligation of all states of national jurisdiction . . . as well as the resources of the and not only the States Parties to the convention. One of area, are the common heritage of mankind.” The principle the objectives of the common heritage principle is to pre- is highlighted in Article 136 of the UN Convention on the serve the present legal status of the international commons Law of the Sea, according to which this area and its re- against all states and, as indicated by the term “appro- sources are the common heritage of mankind. The signifi- priation,” all private persons. The latter has far- reaching cance of this principle to the UN Convention on the Law consequences. It means that an illegal appropriation will of the Sea becomes evident through its Article 311, para- not result in a title of ownership for the entity in ques- graph 6, which provides that there will be no amendments tion. States Parties are therefore obliged to modify their to the basic principle relating to the common heritage of law on private ownership accordingly. This constitutes a mankind set forth in Article 136 of the UN Convention viable mechanism to preserve the common interests in the on the Law of the Sea. This attributes to Article 136 of the UN Convention on the Law of the Sea a special sta-tus above treaty law without qualifying it as jus cogens (i.e. peremptory international law). The common heritage DUTY TO COOPERATE
principle as established by the UN Convention on the Law of the Sea contains several core elements, which will be The regime of utilization, furthermore, establishes the discussed in the remainder of this chapter.
obligation of all states to cooperate internationally in the exploration and exploitation of the deep seabed. The in-stitution through which such cooperation is to be achieved NONOCCUPATION/NONAPPROPRIATION
is the International Seabed Authority (ISA). A correspond-ing duty of states to cooperate in the peaceful exploration According to Article 137 of the UN Convention on and use of outer space, including celestial bodies, has been the Law of the Sea, no state shall claim or exercise sov- formulated as a principle immanent in space law. Such an ereignty or sovereign rights over any part of the seabed obligation to cooperate on deep- seabed and outer space and the ocean floor or its resources, nor shall any state or matters surpasses the requirements of international law in natural or juridical person appropriate any part thereof. No such claim or exercise of either sovereignty rights or Although the obligation to cooperate constitutes a such appropriation shall be recognized.
strong element in the Antarctic legal regime, it has not The legal significance of the nonoccupation and the been institutionalized in a way similar to the one for the nonappropriation element of the common heritage prin- deep seabed. There is no question, however, of the inter- ciple concerning the high seas was minimal, as Article 2 state cooperation between states and between states and of the Geneva Convention on the High Seas already pro- nongovernmental organizations at the Antarctic Treaty hibited any occupation of the high seas. Equally, an ap- Consultative Meetings. Cooperation is a dominant feature propriation by private entities is excluded.
of the Antarctic legal regime and even more evident in the This element of nonoccupation is also inherent in day- to- day activities in Antarctica.
Article IV of the Antarctic Treaty, which excludes new territorial claims. It is a matter to be looked into as to whether individuals or entities may appropriate parts of INTERNATIONAL MANAGEMENT
Antarctica. In my view, Article IV of the Antarctic Treaty, albeit not explicitly, indirectly rules out the possibility of Apart from its negative side just described (i.e. non- occupation and nonappropriation), the common heritage As far as the seabed beyond national jurisdiction is principle introduces a revolutionary new positive element concerned, Article 136 of the UN Convention on the Law into the law of the sea by indicating that the control and W O L F R U M / C O M M O N I N T E R E S T S I N T H E O C E A N • 2 8 3
management of the deep seabed is vested in mankind as a was discussed, it was emphasized that the common heri- whole. Mankind, in turn, is represented as far as the deep tage principle was meant to replace the freedom- based ap- seabed is concerned by the ISA, which is the organization proach that traditionally governs the use of the high seas.
through which States Parties organize and control deep- The approach pursued by the Antarctic legal regime is seabed activities (Article 157, paragraph 1, of the UN somewhat different. The Protocol on Environmental Pro- Convention on the Law of the Sea). Thus, States Parties tection to the Antarctic Treaty (Environmental Protocol) are meant to act as a kind of trustee on behalf of mankind and its annexes are much more concrete than Part XI of as a whole. It is in this respect that the common heritage the UN Convention on the Law of the Sea, which makes principle introduces a fundamental change in the legal re- supplementary rules for deep- seabed activities necessary. gime governing the deep seabed. However, no other in- In this respect, the so- called mining code of ISA is bor- ternational agreement implementing the common heritage rowed from the draft Convention on the Regulation of principle, not even the Agreement Governing the Activities Mineral Resource Activities in Antarctica (CRAMRA) of States on the Moon and Other Celestial Bodies (Moon and the Environmental Protocol to the Antarctic Treaty. That was particularly true for the liability regime.
A particular legal regime governs the use of the geosta- tionary orbit. The legal regime governing the geostation-ary orbit involves the International Telecommunication DISTRIBUTIVE EFFECT
Union (ITU) in the administration of that part of outer space, although to a comparatively lesser extent. Many Controversy over the utilization system concerning the scholars hold that the establishment of an international deep seabed centered upon the question of how to make management system like the ISA is a necessary feature of sure that deep- seabed mining would benefit all mankind. the common heritage principle. I beg to differ. In my view, The term “benefit” mentioned in the UN Convention on it is perfectly possible to serve the interests of the inter- the Law of the Sea should be understood broadly. What national community even without establishing an interna- matters, on the one hand, is the immaterial benefit, i.e., the extension and deepening of mankind’s knowledge con-cerning the international commons. On the other hand, the benefit thought of is the one that can be derived from REGULATED UTILIZATION
the use of the resources of the seabed and ocean floor as well as of outer space and its celestial bodies. According to The key provision on the system of exploration and Article 140 of the UN Convention on the Law of the Sea, exploitation of the resources of the deep seabed (Article activities in the deep- seabed area should be carried out for 153 of the UN Convention on the Law of the Sea) avoids the benefit of mankind as a whole, taking into particular referring to the freedom of such uses. Instead, it states that consideration the interests and needs of developing states. activities in the international seabed area shall be carried This article merely describes a legal framework from which out by the Enterprise (an organ of the ISA) and, in associa- no specific legal rights and obligations can yet be drawn. tion with the ISA, by States Parties or their nationals when However, the UN Convention on the Law of the Sea for- sponsored by such states. In that respect, the deep- seabed mulates further, more specific obligations: equal participa- mining regime differs from the one governing the high tion of all states despite their technological or economic seas as well as the one governing outer space. On the high development, sharing of revenues, transfer of technology seas as well as in outer space all states enjoy freedoms, al- (so as to provide for equal participation), preferential though such freedoms are to be exercised under the condi- treatment of developing countries, protection against ad- tions laid down by international law. The main difference verse effects of deep- seabed mining on land- based mining, between the two regimes rests in the fact that the freedoms and cooperation. The UN Convention on the Law of the of the high seas are to be exercised with due regard to the Sea attempts to achieve the objective of equal participa- interests of other states, so as to coordinate the exercise tion by the following means: (1) restrictions imposed upon of such freedoms and to protect against negative effects potential deep- seabed miners, (2) affirmative action bene- from such exercise, whereas the restrictions imposed upon fiting nonmining states, and (3) conferring of jurisdiction the utilization of the deep seabed are also meant to pro- over deep- seabed mining activities on the ISA so that all tect the interests of humankind. In particular, when the States Parties can equally, though indirectly, participate legal regime concerning the utilization of the deep seabed therein. This utilization system represents an attempt to 2 8 4 • S C I E N C E D I P L O M A C Y
provide for distributive justice. It is in this respect that the At last instance the implementation of this obligation is Implementation Agreement has introduced modifications, monitored by the International Tribunal for the Law of in particular concerning a production policy and the obli- gation for a transfer of technology.
As far as the high seas are concerned, the flag states The introduction of the term “mankind” combined are originally mandated to ensure the sustainable manage- with the word “heritage” indicates that the interests of fu- ment of the living resources (Article 119 of the conven- ture generations have to be respected in making use of the tion). The UN Agreement Relating to the Conservation international commons. More specifically, it requires that and Management of Straddling Fish Stocks and Migra- deep- seabed or outer space activities should avoid undue tory Fish Stocks has significantly clarified this approach, waste of resources and provides for the protection of the reflecting the common interest in a management regime environment. An important part of the intertemporal di- dedicated to sustainability as the precautionary principle.
mension of the common heritage principle is the concept Part XII of the UN Convention on the Law of the of sustainable development. Articles 145 and 209 of the Sea, which deals with the protection and preservation of UN Convention on the Law of the Sea provide for the pro- the marine environment, again clearly mirrors the com- tection of the marine environment against harmful effects mon interests in the oceans. According to Article 192 of the convention, all states have the obligation to protect This concept of sustainable development is well en- and preserve the marine environment. This obligation is shrined in the Antarctic legal system. The Environmental all- encompassing; it is further detailed in Part XII, which Protocol, including its annexes, and the Convention on describes the distribution of the functions between coastal Antarctic Marine Living Resources are based thereon.
states, port states, and flag states.
The same approach applies to Antarctica. There the main responsibility rests upon the state whose nationality HIGH SEAS AND MARITIME AREAS
the expedition or the station concerned represents.
UNDER NATIONAL JURISDICTION
Although the common interests in the oceans are most CONCLUSION
explicitly expressed as far as the utilization of the deep seabed is concerned, they influence the legal regime for Let me conclude by stating the particularities and the high seas as well as for maritime areas under national strengths of the Antarctic legal regime in pursuing com- jurisdiction. This point will be highlighted regarding fish- mon interest. These are (1) the flexibility of the governance eries and the protection of the marine environment.
system, (2) concentration on science and the protection of According to Article 61, paragraph 2, of the UN Con- the environment, and (3) reliance on the interchange of vention on the Law of the Sea, coastal states shall ensure that the maintenance of the living resources in their ex- It has been indicated that the Antarctic Treaty Consul- clusive economic zones is not endangered by overexploi- tative Meeting (ATCM) and its secretariat were inadequate tation. Paragraph 3 continues to state that populations to deal with the complexities of Antarctica. I venture to should be maintained and restored at levels whereby they disagree. The ATCM has proved to be remarkably flex- can produce the maximum sustainable yield. In short, ible and effective if one compares the situation today with coastal states are entrusted with the management of the the one 20 years back. Such a metamorphosis would have living resources in their exclusive economic zone, but they been impossible had the original signatories decided to are not totally free in that respect. They are under an ob- establish an international organization. To underline my ligation to manage fisheries in a way that the resources point, I recommend considering the G8 Summit, which in question will contribute to the nourishment of their follows exactly the same pattern, although I doubt that populations or the populations of other states. The fact its founders were aware of the Antarctic legal system. that coastal states are not totally free in their own poli- Modern international law is moving away from the es- cies is highlighted in Article 73, paragraph 1, of the UN tablishing new international organizations. Instead, more Convention on the Law of the Sea, which indicates that informal fora are established, such as meetings of States they may only enforce such national laws and regulations Parties, some of them enjoying more substantial functions on fisheries adopted in conformity with the convention. than traditional international organizations. The ATCM, W O L F R U M / C O M M O N I N T E R E S T S I N T H E O C E A N • 2 8 5
in my view, is a forerunner of this development, although science, politics, and law. Attempts to follow this pattern have been made in the context of the law of the sea with I see the second strength of the ATCM in the concentra- the Continental Shelf Commission. But there the integra- tion of the Antarctic legal system on science and protection tion was not well thought through. This interplay between of the environment. This has not been duplicated elsewhere. science, politics, and law is the most valuable asset of the Both objectives serve common interest, which makes it eas- Antarctic legal regime—its primary export article—and it ier to solve conflicts that may and have developed.
Finally, I see the particularity and strength of the Ant- arctic legal system in its reliance on the interchange of

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