Questionnaire Design Method

148 ascertain the nationality of merchant ships that were suspected of infringing the terms of the Convention.³⁸⁹

149 alienation. The minerals recovered from the Area,

however, mayonly be alienated in accordance with this Part and the rules, regulations andprocedures of the Authority.

3. No State or natural or juridical person shall claim, Acquire orexercise rights with respect to the minerals recovered from the Areaexceptin accordance with this Part. Otherwise, no such claim, acquisition orexercise of such rights shall be recognized.

The concept of common heritage of mankind was seriously canvassed for over many years and subsequently the Declaration of the Principle was adopted at the General Assembly in 1970 by 108 votes to none with 14 absentions.³⁹³ There has been controversy between the

developed countries and the developing countries over the right interpretation of the concept „common heritage of mankind‟. The United States for instance has argued that common heritage of mankind did not necessarily imply common property. In contrast to this position maintained by the United States and other industrialized countries, however, was the stance maintained by C. Pinto.³⁹⁴While talking about the concept of common heritage he said:

393M.Ravin, op cit, p.19.

394A delegate of Sri Lanka, before the Law of the Sea Workshop at the University of Hawaii in 1978.

150

… that those minerals cannot be freely mined. They are not there, so to speak, for the taking. The common heritage of mankind is common property of mankind. The commonness of the „common heritage‟ is a commonness of ownership and benefit. The minerals are owned in common by your country and mine and by all the rest as well. In their original locations, these resources belong in undivided and indivisible share to your country and to mine, and to all the rest to all mankind, in fact, whether organized as a State or not. If you touch the nodules at the bottom of the sea, you touch my property. If you take them away means to take away my property.³⁹⁵

Eventually, the concept became the principle of the international law and was encapsulated in the United Nations Convention on Law of the Sea. The Convention contains 58 articles on the management and control of resources in the seabed and subsoil thereof, which was known and called the „Area‟, for the good of mankind as a whole.³⁹⁶

This principle of common heritage of mankind which as set forth in the 1982 Convention is really meaningful for all States, particularly to the developing countries which still lag behind in technological advancement and are generally strapped for funds to explore the resources embedded in the deep ocean floor. In addition and most

395Statement of Ambassador C. Pinto in the Law of the Sea Workshop, as quoted in M.Ravin, opcit, p.20.

396Ibid.

151 importantly, the Convention equally mandates/requires the industrialized countries that undertake the exploration of natural/ economic resources in the seabed areas to transfer their technical know-how in science and technology to the developing nations so that they too may benefit therefrom.³⁹⁷ This indeed is one of such frantic efforts made by the present legal regime of the sea to balance States‟ interests in the economic resources of the sea.

The „Area‟ is believed to have rich resources which are necessary for industrial purposes. Recently, study claimed that there are approximately 1.5 trillion tons of nodules in the Pacific Ocean alone.³⁹⁸According to the indication of eminent scientists and researchers who were invited to give a presentation on the nature and occurrence of these resources, these are cobalt rich ferromanganese crusts which occur throughout the global

oceans on sea mounts, ridges, andplateaus. The „Area‟ also contains titanium, cerium, nickel, platinum, manganese, thallium, tellurium and other rare earth elements.³⁹⁹ In accordance with the report of the Congressional Research Service of theUnitedStatesprepared for the Senate Committee in 1976, ocean manganesenodulescontainapproximately thirty elements including manganese, iron, silicon, aluminum, sodium, calcium, magnesium, nickel, potassium, titanium copper, cobalt, barium, lead, strontium, zirconium, vanadium, molybdenum, zinc, boron, yttrium, lanthanum, ytterbium, chromium, gallium, scandium, and silver.⁴⁰⁰

397UNCLOS, Art. 144.

398United States Congressional Research Services, as quoted by M.Ravin, op cit.

399N. N.Nandan, „Secretary General of International Seabed Authority Current Marine Environment Issue‟

as cited in M. Ravin, op cit.

400M.Ravin, op cit.

152 4.6.1 Exploitations of Economic Resource in the Area

The degree of wealth contained beneath the high seas has become more and more apparent in the recent years as a result of scientific and technological advances. Such scientific advances in the past few decades have actually revolutionalized the international community‟s knowledge and ability to search for marine mineral resources.

In some cases, applied science has found ways to make some of these resources available to mankind

through the development of new technologies or the adaptation of existing ones for mining the mineral deposits concerned and processing them to recover the valuable products that they contain. For every mineral deposits, an ore body is generally defined as a mineral concentration (a mineral deposit) from which an element or a compound can be economically extracted under the existing legal, political and economic conditions. For mineral resources found in the international seabed area the „Area‟, a legal framework has been provided for by the Convention. For polymetallic nodules, this framework and the Agreement relating to its implementation have been used to develop a prospecting and exploration code. For further development of this code, applied science (engineering) will have to provide a solution to the problem of economically viable mining and processing technologies.

It has been suggested that while this source of mineral wealth is of great potential importance to the developed nations possessing, or at least will soon possess the technical capacity to mine such nodules, it poses serious problems for developing States,

153 particularly those that are dependent upon the export earnings of a few categories of minerals.⁴⁰¹

The 1982 Convention on the Law of the Sea under its Part XI declares the Area and its resources to be the common heritage of mankind as a whole and no State or natural or juridical person shall, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with Part XI of the Convention.⁴⁰² All activities in the Area including exploitation of the mineral resources are carried out for the benefit of mankind as a whole on whose behalf the International Seabed Authority (the Authority) established under the Convention shall act. The Authority is to provide for the equitable sharing of such benefits.⁴⁰³ Activities in the Area are to be carried out in accordance with the provisions of Article 153 by the Enterprise (i.e. the Organ of the Authority established as its operating arm) and by State Parties or State Enterprises, or persons possessing the nationality of States Parties or effectively controlled by them, acting in association with the Authority.

An important aspect of the mineral resources in the seabed is that they may occurboth in maritime areas under the jurisdiction of coastal States or in the international seabed Area beyond the limits of national jurisdiction. However, none of these minerals are

commercially mined yet, but a considerable amount of commercial interest has been indicated in some of the deposits. What is essential before commercial exploration of

401Ibid, p.561.

402UNCLOS, Art. 137 (3).

403Ibid,Art. 140.In order to control the activities of States and manage all resources in the „Area‟, the United Nations Convention on the Law of the Sea vests exclusive rights in the International Seabed Authority (ISA), established under Section 4, Article 156 of the Convention. All States Parties to the Convention are ipso facto Members of the Authority.

154 these minerals could actually commence is that the profitability of a mining operation is established. The profitability, in turn, will depend upon a number of interrelated factors, including characteristics of the mineral deposits, suitable technology to mine it, technology for processing the ore obtained from the deposit to extract the products of economic value, market conditions as well as environmental considerations.

Currently, various stages are underway globally in some processes for prospecting and exploration combined with research and development on technology. At this time, it is still extremely difficult to ascertain when the requisite degree of geological assurance and of economic feasibility could be achieved to convert these potential resources to reserves, and therefore to start a viable mining operation. In fact, it has been argued that the Authority has made just little progress.⁴⁰⁴ In 2000 for instance, the Authority adopted regulation on the exploitation of polymetallic nodules and in 2001 entered into exploration contracts with seven pioneer investors.⁴⁰⁵ It is currently engaged in drafting regulations on polymetallicsulphides and cobalt rich crusts. It seems however that these seven contract holders do not yet have any immediate prospects or plans for exploitation.⁴⁰⁶

404D. J.Harris, op cit, p.495.

405<www.isa.org> accessed on 23 February 2014.

406D. J. Harris, op cit.

155 CHAPTER FIVE

NATIONAL JURISDICTION IN RELATION TO SPACE ABOVE STATES‟

TERRITORIAL WATERS

It is considered invaluable in this research work to, particularly under this chapter; make a detour to the States‟ jurisdiction in relation to the space above their territorial waters, due to the twin or identical provisions of the Law of Space which are analogous to the Law of the Sea. It is therefore apposite that a brief comparison with regard to States‟

jurisdictions in relation to space above their territories are made here, as quick allusion to this area of jurisdiction will serve our present purpose.