Skip to main content
SpringerLink
Log in

Resources that Lie Between the Continental Shelf and the Area (Article 142 of UNCLOS)

  • Chapter
  • First Online:
Joint Development of Hydrocarbon Deposits in the Law of the Sea

Part of the book series: Hamburg Studies on Maritime Affairs ((HAMBURG,volume 30))

  • 999 Accesses

Abstract

The improvement of the technology that allowed for the exploitation of mineral resources at greater depths caused a general concern that States with such technology or the means to develop or acquire it, would progressively be able to claim these maritime areas as being part of their respective continental shelf.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 84.99
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 109.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    Resolution (UNGA) n. 2574 A (XXII), 15 December 1969, recognized that the developing technology is making the entire seabed and ocean floor progressively accessible and exploitable for scientific, economic, military and other purposes.

  2. 2.

    Yearbook of the International Law Commission, 1956, supra note 59 in Chap.  5, p. 296.

  3. 3.

    Ibid.

  4. 4.

    Mark W. Zacher and James G. McConnell, “Down to the sea with stakes: the evolving law of the sea and the future of the deep seabed regime”, in: 21-1 Ocean Development and International Law (1990), pp. 79–81.

  5. 5.

    Resolution (UNGA) n. 3201(S-VI), 1 May 1974, Declaration on the establishment of a New International Economic Order. Also see Resolution (UNGA) n. 3202 (S-VI), 1 May 1974, Programme of action on the establishment of a New International Economic Order; Resolution (UNGA) n. 1515 (XV), 15 December 1960, Concerted action for economic development of economically less developed countries.

  6. 6.

    On the principle of the common heritage of mankind applicable to the Area and its resources see Alexandre-Charles Kiss, “The common heritage of mankind: utopia or reality?”, in: 40 International Journal (1985), pp. 423–441; Ibid, “La notion de patrimoine commun de l'humanité”, in: 175-2, Recueil des Cours de l’Académie de Droit International (1982), pp. 109–119, 196–224; Rüdiger Wolfrum, “Hohe See und Tiefseeboden (Gebiet)”, in: Handbuch des Seerechts, edited by Wolfgang Graf Vitzthum (Verlag C.H. Beck: Munich 2006), pp. 338–340; Die Internationalisierung staatsfreier Räume: die Entwicklung einer internationalen Verwaltung für Antarktis, Weltraum, Hohe See und Meeresboden (Berlin: Springer, 1984), 331–396; Ibid, “The principle of the common heritage of mankind”, in: 43 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht (1983), pp. 312–337.

  7. 7.

    Resolution (UNGA) n. 2340 (XXII), 18 December 1967, Examination of the question of the reservation exclusively for peaceful purposes of the sea-bed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind.

  8. 8.

    Resolution (UNGA) n. 2467 A (XXIII), 21 December 1968, ibid.

  9. 9.

    First Committee, General Assembly of the United Nations (Twenty-second session), United Nations Doc A/C.1/PV 1515, 1 November 1967; United Nations Doc A/C.1/PV 1516, 1 November 1967.

  10. 10.

    Lewis Alexander, “National jurisdiction and the use of the sea”, in: 8-3 National Resources Journal (1968), p. 398.

  11. 11.

    The reference to ‘heritage of mankind’ was initially made regarding the protection of marine living resources. It was included in a proposal of 1927 by José León Suárez to the Experts Committee for the Progressive Codification of International Law of the League of Nations. This proposal forwarded the idea that these resources, particularly whales, should be considered part of the heritage of mankind in order to protect them from extinction: “Les richesses de la mer, en particulier les richesses immenses de la région antarctique, constituent un patrimoine de l’humanité, et notre Commission, constituée par la Société des Nations, est tout indiquée pour proposer au Gouvernement un moyen d’action avant qu’il ne soit trop tard.” See Scovazzi, supra note 1 in Chap. 6, p. 93.

  12. 12.

    Resolution (UNGA) n. 2749 (XXV), 17 December 1970, Declaration of principles governing the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction; Section D of Resolution (UNGA) n. 2574 (XXIV), supra note 56 in Chap. 3.

  13. 13.

    “La notion de patrimoine commun de l'humanité”, supra note 6, p. 235.

  14. 14.

    Article 1(1) of UNCLOS.

  15. 15.

    Article 76 of UNCLOS.

  16. 16.

    Article 76(8) and Annex II of UNCLOS. See Erik Franckx, “The International Seabed Authority and the common heritage of mankind: the need for states to establish the outer limits of their continental shelf”, in: 25 International Journal of Marine and Coastal Law (2010), pp. 552–562.

  17. 17.

    Articles 76(8), 84(2) and 134(3) and (4) of UNCLOS. See Ted L. McDorman, “The role of the Commission on the Limits of the Continental Shelf: a technical body in a political world”, in: 17-3 International Journal of Marine and Coastal Law (2002), p. 306; Edward Duncan Brown, Sea-bed Energy and Mineral resources and the Law of the Sea—Volume II: The Area Beyond the Limits of National Jurisdiction (Graham and Trotman: London, 1986), p. II.6.23–24. Also see International Law Association, Report of the International Committee on Legal Issues of the Outer Continental Shelf to the Biennial International Law Association Conference in Berlin, Germany, August 2004, by Alex Oude Elferink (Seventy-First Conference, London: 2004), pp. 773–819; Ibid, Second Report of the International Committee on Legal Issues of the Outer Continental Shelf to the Biennial International Law Association Conference in Toronto, Canada, June 2006, by Alex Oude Elferink (Seventy-Second Conference: London, 2006), pp. 215–253.

  18. 18.

    Bangladesh/Myanmar, supra note 71 in Chap. 3, paras. 407–409.

  19. 19.

    Article 1 of the 1958 Convention on the Continental Shelf.

  20. 20.

    Article 1 of the 1958 Convention on the High Seas.

  21. 21.

    Article 2 of the 1958 Convention on the High Seas.

  22. 22.

    Article 2(1) and (2) of the 1958 Convention on the Continental Shelf.

  23. 23.

    On the reference made in the Preamble and its legal significance see Brown, supra note 17, p. II.3.4-6.

  24. 24.

    Article 140(1) of UNCLOS.

  25. 25.

    Articles 137(1) and 87(2) of UNCLOS. On the relation between the regime of the high seas and Part XI of UNCLOS see Alex G. Oude Elferink, “The regime of the Area: delineating the scope of application of the common heritage principle and freedom of the high seas”, in: 22-1 International Journal of Marine and Coastal Law (2007), pp. 144–147. Also see Brown, supra note 17, p. II.2.1–42.

  26. 26.

    Articles 138 and 141 of UNCLOS.

  27. 27.

    Article 311(6) of UNCLOS.

  28. 28.

    Articles 139 and 143 of UNCLOS.

  29. 29.

    Articles 137, 138, 140 and 141 of UNCLOS.

  30. 30.

    Articles 157(4) and 300 of UNCLOS.

  31. 31.

    Articles 143, 144 and 256 of UNCLOS.

  32. 32.

    On development of resources beyond States’ jurisdiction see Jonathan I. Charney, “The equitable sharing of revenues from seabed mining”, in: Policy Issues in Ocean Law: Studies of the Working Group on Technical Issues of the Law of the Sea, edited by Herbert G. Knight (et al.) (St. Paul Minnesota 1975), pp. 53–120; Jon L. Jacobson, “The United States and the law of the sea conference: interim resource options”, ibid, pp. 121–189; Bernard Oxman, “Law of the sea forum: the 1994 Agreement on implementation of the seabed provisions of the Convention on the Law of the Sea. The 1994 Agreement and the Convention”, in: 88-4 American Journal of International Law (1995), pp. 687–696.

  33. 33.

    Article 142 of UNCLOS.

  34. 34.

    International Law Association, supra note 15 in Chap. 2, p. 22.

  35. 35.

    Yearbook of the International Law Commission, 1956, supra note 59 in Chap. 5, p. 297: “The Commission desired to avoid language lending itself to interpretations alien to an object which the Commission considers to be of decisive importance, namely, the safeguarding of the principle of the full freedom of the superjacent sea and the air space above it. Hence it was unwilling to accept the sovereignty of the coastal State over the seabed and subsoil of the continental shelf. On the other hand, the text as now adopted leaves no doubt that the rights conferred upon the coastal State cover all rights necessary for and connected with the exploration and exploitation of the natural resources of the continental shelf. Such rights include jurisdiction in connexion with the prevention and punishment of violations of the law. The rights of the coastal State are exclusive in the sense that, if it does not exploit the continental shelf, it is only with its consent that anyone else may do so.”

  36. 36.

    Article 136 of UNCLOS.

  37. 37.

    Article 140 of UNCLOS.

  38. 38.

    Nele Matz-Lück, “The concept of the common heritage of mankind: its viability as a management tool for deep-sea genetic resources”, in: The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments, edited by Alex G. Oude Elferink and Erik J. Molenaar (Martinus Nijhoff Publishers: Leiden, Boston, 2010), p. 65. Matz-Lück concludes that “[i]t is a matter of methodology whether the common heritage concept is a legal principle from which one can deduct the necessary legal consequences or whether it is an idea that is reflected in different treaty provisions.” (p. 66).

  39. 39.

    Article 150 of UNCLOS.

  40. 40.

    Article 150 lit. (b), (e), (f) and (j) and Article 13(1) of Annex III of UNCLOS.

  41. 41.

    Article 147(1), (3) of UNCLOS.

  42. 42.

    Article 1(3) of UNCLOS.

  43. 43.

    Article 133 lit. (a) of UNCLOS. The Seabed Disputed Chamber considered that the activities of the Area to ensure effective protection for the marine environment from harmful effects—which may arise from such activities—indicates the activities in respect of which the Authority should adopt rules, regulations and procedures. The Seabed Disputed Chamber concluded that the activities referred in Article 145 of UNCLOS are included in the concept of activities in the Area, namely, drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities. See Request for Advisory Opinion submitted to the Seabed Disputes Chamber, supra note 77 in Chap. 2, para. 85.

  44. 44.

    UNCLOS: A Commentary, supra note 36 in Chap. 5, p. 947.

  45. 45.

    Article 187 lit. (b) of UNCLOS.

  46. 46.

    Request for Advisory Opinion submitted to the Seabed Disputes Chamber, supra note 77 in Chap. 2, paras. 145, 148: “Although aimed at the specific situation under discussion by the Court, the language used seems broad enough to cover activities in the Area even beyond the scope of the Regulations. The Court’s reasoning in a transboundary context may also apply to activities with an impact on the environment in an area beyond the limits of national jurisdiction; and the Court’s references to “shared resources” may also apply to resources that are the common heritage of mankind. Thus, in light of the customary rule mentioned by the ICJ, it may be considered that environmental impact assessments should be included in the system of consultations and prior notifications set out in article 142 of the Convention with respect to “resource deposits in the Area which lie across limits of national jurisdiction.”

  47. 47.

    Rüdiger Wolfrum, “Legitimacy of international law and the exercise of administrative functions: the example of the International Seabed Authority, the International Maritime Organization (IMO) and the International Fisheries Organizations”, in: 9-11 German Law Journal (2004), pp. 2054, 2059.

  48. 48.

    Articles 157(2) and 170, and Annex IV of UNCLOS.

  49. 49.

    Article 17 of Annex III of UNCLOS. See Michael C. Wood, “The International Seabed Authority: fifth to twelfth sessions (1999–2006)”, in: 11 Max Planck Yearbook of United Nations Law (2007), p. 56: “The possibility of joint exploitation of deposits straddling the boundary between the Area and the continental shelf of a coastal state is anticipated in article 142 of the Convention (which deals with the rights and legitimate interests of coastal states). If such deposits were to be found and joint exploitation seemed desirable, some practical ad hoc arrangement would be needed (for which there are precedents in agreements between states).”

  50. 50.

    Article 158(2) of UNCLOS.

  51. 51.

    Article 153(2) lit. (b),(5) of UNCLOS. Also see Articles 147(2) and 187 lit. (c), (d) and e) of UNCLOS.

  52. 52.

    Article 153(3) and Articles 3 and 6(3) of Annex III of UNCLOS.

  53. 53.

    Articles 162(2) lit. (j) and 165(2) lit. (b) of UNCLOS.

  54. 54.

    Article 153(4) and Article 3(4) lit. (b) of Annex III of UNCLOS.

  55. 55.

    Article 18 of Annex III of UNCLOS.

  56. 56.

    Articles 3(5) and 13 of Annex III of UNCLOS.

  57. 57.

    Article 11 of Annex III of UNCLOS.

  58. 58.

    Articles 139 and 153 of UNCLOS. See Request for Advisory Opinion submitted to the Seabed Disputes Chamber, supra note 77 in Chap. 2, paras. 213–217.

  59. 59.

    Articles 139(2) and 304 and Article 4(4) of Annex III of UNCLOS.

  60. 60.

    See Request for Advisory Opinion submitted to the Seabed Disputes Chamber, supra note 77 in Chap. 2, paras. 121–122.

  61. 61.

    Ibid, paras. 121, 172–177, 182, 204, 217. The text of Article 4(4) of Annex III of UNCLOS reads: “The sponsoring State or States shall, pursuant to article 139, have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall carry out activities in the Area in conformity with the terms of its contract and its obligations under this Convention. A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.” The text of Article 22 of Annex III of UNCLOS reads: “The contractor shall have responsibility or liability for any damage arising out of wrongful acts in the conduct of its operations, account being taken of contributory acts or omissions by the Authority. Similarly, the Authority shall have responsibility or liability for any damage arising out of wrongful acts in the exercise of its powers and functions, including violations under article 168, paragraph 2, account being taken of contributory acts or omissions by the contractor. Liability in every case shall be for the actual amount of damage.”

  62. 62.

    Request for Advisory Opinion submitted to the Seabed Disputes Chamber, supra note 77 in Chap. 2, para. 110.

  63. 63.

    Articles 178 and 187 and article 22 of Annex III and article 37 of Annex VI of UNCLOS. See Brown, supra note 17, p. II.4.53.

  64. 64.

    Article 2(3) of Annex IV of UNCLOS reads: “Nothing in this Convention shall make the Enterprise liable for the acts or obligations of the Authority, or make the Authority liable for the acts or obligations of the Enterprise.”

  65. 65.

    Article 139(2) of UNCLOS.

  66. 66.

    Articles 192 and 194(1) of UNCLOS.

  67. 67.

    Article 194(2) of UNCLOS.

  68. 68.

    Articles 194(3) lit. (c), 208 and 214 of UNCLOS.

  69. 69.

    Article 209 of UNCLOS.

  70. 70.

    Article 215 of UNCLOS.

  71. 71.

    Also see Article 17 lit. (f) of Annex III of UNCLOS. On the protection and preservation of the marine environment in the Area see Brown, supra note 17, p. II.9.3–18. On the role of the Authority in implementing the Area regime see James Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge University Press: Cambridge, 2011), pp. 115–153.

  72. 72.

    Article 1(1)3) of UNCLOS.

  73. 73.

    Request for Advisory Opinion submitted to the Seabed Disputes Chamber, supra note 77 in Chap. 2, para. 87: “The provisions considered in the preceding paragraphs confirm that processing and transporting as mentioned in Annex IV, article 1, paragraph 1, of the Convention are excluded from the notion of “activities in the Area”. They set out lists of activities whose harmful effects are indicated as directly resulting from such activities. These lists may be seen as an indication of what the Convention considers as included in the notion of “activities in the Area”. These activities include: drilling, dredging, coring, and excavation; disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents; and construction and operation or maintenance of installations, pipelines and other devices related to such activities.”

  74. 74.

    Articles 163(1) lit. (b) and 165(2) lit. (d), (e), (f), (g), (h), (k), (l) of UNCLOS.

  75. 75.

    Article 162(2) lit. (x) of UNCLOS.5.

  76. 76.

    Articles 198 and 199 of UNCLOS.

  77. 77.

    Articles 204 and 205 of UNCLOS.

Author information

Authors and Affiliations

  1. International Max Planck Research School for Maritime Affairs, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany

    Vasco Becker-Weinberg

Authors
  1. Vasco Becker-Weinberg
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Vasco Becker-Weinberg .

Rights and permissions

Reprints and permissions

Copyright information

© 2014 Springer-Verlag Berlin Heidelberg

About this chapter

Cite this chapter

Becker-Weinberg, V. (2014). Resources that Lie Between the Continental Shelf and the Area (Article 142 of UNCLOS). In: Joint Development of Hydrocarbon Deposits in the Law of the Sea. Hamburg Studies on Maritime Affairs, vol 30. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-43570-0_9

Download citation

Publish with us

Policies and ethics

Search

Navigation