Rahima Ansar Musaliar
Kuwait International Law School LLM program 2012-2014

Abstract:

“Kuwait International Law School Journal is pleased to select extracts from some of the Master’s thesis that were submitted as part of the Master’s programs offered by the School. The chosen topics are vital and reflect the current status of law and jurisprudence in the region and even on the international level. This is a clear evidence of KILAW’s will to enhance the academic specialization and shows its constant support to research initiatives and activities whether they were undertaken by faculty members or by students”.
Abstract
Part XI of the convention, extensively dealing with regulating future deep seabed mining, declare that the seabed and ocean floor beyond the limits of national jurisdiction will be termed as the Area and will be considered as the common heritage of mankind. The rush of the coastal states to claim more sea and the urge of industrialized states for unregulated extraction of resources from the seabed were halted by the common heritage of mankind principle. Seabed contained valuable minerals and mining the deep sea minerals were a challenge owing to its depth. The capacity to engage in deep sea mining rested with a hand full of developed countries. The Common Heritage of Mankind (CHM) principle brought the resources under the control of common management to be administered in a way benefitting whole mankind. The CHM principle provided orderly, safe development and rational management of the resources of Area as these resources were non renewable, limited, and had financial and scientific value.
Art 137 of the UNCLOS states that there shall be no sovereign claim or appropriation over Area or its resources. Prohibiting sovereignty and appropriation reflect the inherent nature of the CHM principle. But prohibiting sovereignty is not enough. The Area to benefit all humankind, all kind of monopolization should be avoided. In retrieving deep seabed nodules, developed states have a distinct advantage over developing states in terms of technology and finance. Developing land-locked states are disadvantaged because of their geographical position. Developing states and geographically disadvantaged states G-77(The Group of 77 was established in 1964 by seventy-seven developing countries. The group enables the countries to promote their collective economic interests within UN) were united as they realized that in the past, benefits were reaped only by the developed countries. The main reason for unity was that they were against monopolization of world resources of the developed world and they demanded New International Economic Order (NIEO).
The UNCLOS provided that there should be equitable sharing of financial and economic benefits. The point of contention was whether the sharing of benefit should be compensation based on equal rights or whether it should be development aid based on preferential treatment. The preferential treatment was accommodated in UNCLOS and it gives special attention to developing States.
UNCLOS reserves the scientific research in the Area only for peaceful purposes, as the utilization of the seabed should be carried out for the benefit of all mankind any military use will only serve national interest, so all aggressive military activities are prohibited as Article 145 established that the International Seabed Authority (ISA) shall adopt measures for the protection of marine environment. ISA gives high priority to protect marine environment and is following the Environmental Impact Assessment and Precautionary approach to be used for activities in the Area.

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