Damos Dumoli Agusman<\/p>\n
(Hull University, England 1990)
\n[Indonesian Journal of International Law (2007)]<\/p>\n
The Seabed regime (the Area) is a newly emerging regime adopted within the LOSC, 1982. The regime is intended to trans\u00adlate the concept of common heritage of mankind into institutional reality, by establishing International Seabed Authority, whose functions are to organize and control activities in the area, particularly with a view to administering the resources of the area (art. 157). It is very unique since the authority will be a first international organization which will have its own re\u00adsources, and will have jurisdiction over vast areas of the globe.<\/p>\n
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The CHM principle itself has been universally accepted by the adoption of UNGA Resolution 2749, 1970 (on Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the limits of National Jurisdiction), but how to interpret the principle was a very controversial issue which divided states into two group. There were two fundamental\u00adly-different interpretation of CHM principle. The technological\u00adly-advanced states contend that the CHM principle does not pre\u00adclude the freedom to unilaterally explore and exploit the re\u00adsources of the Sea Bed. On the other hand, the developing nations adhere to the contention that the principle\u00a0 is a general rule of international law prohibits unilateral mining. The latter\u00a0 at\u00adtempts to develop the CHM principle in pursuance to the notion of so-called establishing a\u00a0\u00a0international economic order<\/em>. They do not only contend that the seabed can not be subject to appropria\u00adtion but also claim that all countries must share in the manage\u00adment of the region and then further, there must be an active sharing of the benefits reaped from the exploitation of the Area’s resources. This progressive principle is eventually re\u00adflected in the LOSC, 1982, and of course this allegedly excessive demands could not meet the formers interest.<\/p>\n The law-making nature of the LOSC 1982, particularly when it creates a regime for a common space property of the Area,\u00a0 inevi\u00adtably requires as a prerequisite\u00a0 a\u00a0 universal acceptance of the Convention.\u00a0 The regime it creates will not work without\u00a0 universal participation of\u00a0 all states. It had been assumed before that all states would be parties to the Convention since the negotiation approach was based on consensual and package deal nature, but unpredictably, at the nearly-conclu\u00adsion session, Reagan Administration\u00a0 through its shift foreign policy so-called\u00a0“negotiation from strength”[1]<\/strong><\/sup><\/a>,<\/em>\u00a0could not accept the far-reaching consensus on controversial issue of seabed regime, and brought about non-universally acceptance of the Convention.<\/p>\n The present\u00a0 non-universal situation, which was obviously unthinkable and unpredictable during the negotiation, raised a big question about the legal status of the seabed regime. The paramount aim of a desirable seabed regime for resource exploration and exploita\u00adtion can not be achieved if there are third states outside the LOSC, 1982\u00a0 who\u00a0 ignore the regime by claiming an open right to use the seabed resources and authorize their nationals and vessels to mine there. In pursuing this problem most authors emphasize on inef\u00adfectiveness of the seabed regime rather than its legality. It is beyond doubt that the existence of multi regimes would not only affect the effectiveness of the regime but, which is most impor\u00adtant, create a conflict of a legal norm where the prac\u00adtical and legal nature of the regime would most likely be far more uncertain.[2]<\/sup><\/a><\/p>\n <\/p>\n The essential feature of seabed regime is that it is creat\u00ading an international regime upon the Area, by converting from the high seas regime into seabed\/CHM regime. The regime is intended to embrace “all states”. Accordingly, it is suggested to be seen not as a contracts having effect for state parties but an instru\u00adments intending to establish general rules applied for all states. The wording of the seabed regime clearly indicates this feature.\u00a0 The LOSC 1982, particularly the regime provisions, uses various terms of subjects such as “coastal states”, “developing states”, “all states”, “every state”.\u00a0 and “no state” in every different context. This kind of wording should be presumed as refer to states generally regardless parties or not to the Con\u00advention.\u00a0 A definition has been given bz the LOSC 1982, but it is only to the term “state parties” (\u2018State parties\u2019 mean states which have consented to be bound by this Convention and for which this Convention is in force. (art. 1.1.2(1)\u00a0 the LOSC, 1982). Therefore the regime, as might be said of the whole Con\u00advention, declares certain rights and impose obligations on all states.<\/p>\n Consequently, another problem emerges, if there are some states stay outside the LOSC,1982, it might lead to a strong argument that such regime is in breach of the principle of\u00a0pacta tertiis nec nocent nec prosunt<\/em>, that a treaty does not create either obligations or rights for a third State without its con\u00adsent.<\/p>\n The Vienna Convention on the Law of Treaties, 1969, art. 36 rules out the possibility to accord rights to all states if the state parties intend to do so. The wording such as “all states” of the LOSC, 1982 indicates such an intention. But, interesting\u00adly, the regime also imposes obligations which, according to art. 35 of The Vienna Convention, requires not only such intention but also expressly and written acceptance of the non-party to such obligations.<\/p>\n <\/p>\n There is a strict view that the LOSC, 1982 has a contractual nature which binding only state parties, based on ancient maxim of\u00a0pacta tertiis nec nocent nec prosunt<\/em>, and might affect third parties by virtue of customs as ruled out by Art. 38 Vienna Convention.[3]<\/sup><\/a>\u00a0Most writers then take the view that the some rules of LOSC, 1982 declares customary rules, some other have passed into, and the rest is going to pass into customary rules. It can be said of Part XI (Area), in spite of the absence of state practices (there no yet exists established practices of states in exploration and exploitation over the seabed area), the rule could instantly pass into customary law.[4]<\/sup><\/a>\u00a0This traditional argu\u00adment seems resolve the problem.\u00a0 By claiming that the LOSC, 1982 will fully pass into customary rules, they contend that the seabed regime will be valid to all states. But, the legal con\u00adstraint is still unavoidable, since the existence of persistent objector rules may prevent non-party states to be bound by the Convention. United States\u00a0 is in the good position to invoke this rule because from the beginning (i.e. voted against the\u00a0 UNGA\u00a0Moratorium Resolution<\/em>\u00a02574, 1969) it has persistently objected that the CHM principle include the prohibition of unilateral mining in the Seabed area.<\/p>\n One might argue that the persistent objector rule is only temporary or strategic value in the evolution of rules of inter\u00adnational law. For instances, US,UK, and Japan objections to ex\u00adpanded coastal state jurisdiction were ultimately to no avail, and they have been forced to accede to 12-mile territorial sea and 200-mile EEZ,[5]<\/sup><\/a>\u00a0on the way around, Norway persistently objec\u00adtion with regard to normal baseline, lasted by the adoption of straight baselines principle in Geneva Convention, 1958, and Germany objection to equidistance principle, eventually accepted by LOSC, 1982. It is clear then, that the existence of persistent objector rule eventually will be resolved or determined by the\u00a0market forces<\/em>\u00a0of international community.<\/p>\n However, despite the fact that the seabed regime might eventually pass into customary rules and be valid to all states, it is still debatable whether it is appropriate to deal with the legal force of the regime by the strict view of the principle of\u00a0pacta tertiis nec nocent nec prosunt<\/em>\u00a0or alternatively by virtue of customs. The very entirely nature or the undivided character of the regime which necessitate universally acceptance by all states, leads to the strong suggestion that it should be ap\u00adproached under particular concept of international law beyond such traditional methods. Accordingly, it is worth reexamining the legal nature of the seabed regime and particularly its legal effects to third parties in a more appropriate manner.<\/p>\n It is a general principle that a treaty does not create either obligations or rights for a third State without its con\u00adsent. But Waldock, a special Rapporteur to the ILC drafting the Vienna Convention recommended that provisions be included to recognize that, in two instances, a treaty can create rights and duties for third states. The first occurs where a treaty estab\u00adlishes an\u00a0objective regime<\/u>, creating rights and obligations\u00a0erga omnes<\/em>. The second arises where a treaty becomes binding upon a third State because it actually declares a rule of customary international law. Sometime a treaty may lead to the general acceptance of a norm of customary law which accordingly will bind non-parties.[6]<\/sup><\/a><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Brierly also indicated that international law has begun to recognize that some treaties have an objective, legislative character, for example where they create international situations or entities binding upon all states, whether contracting parties or not. Such as the Aaland Island Convention of 1856, which neutralized those island in the Baltic and which was held by a commission of jurists established by the League Council to be objectively valid\u00a0erga omnes<\/em>. The Suez Canal Convention of 1908, and the clauses of the Versailles Treaty concerning the Kiel Canal, both of which converted the Canals into international waterways. Then the UN Charter.[7]<\/sup><\/a><\/p>\n McNair pointed out the existence of a kind of constitutive or semi-legislative treaties or treaties of a public law charac\u00adter which frequently embody the decision of a powerful group of states, acting or assuming to act in the public interest. Like\u00adwise,\u00a0The Reparation for Injuries Case<\/em>, 1949, noted the existence of international organizations of states which possess interna\u00adtional personality for the purpose of a claim that exercisable against all states whether member or non-member.[8]<\/sup><\/a><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Starke also recognize that certain multilateral Convention which are intended to have universal operation, may provide in terms for their application to non-parties. Such as Single Con\u00advention on Narcotic Drugs concluded at New York 1961, enabled an international organ finally to determine the estimates for legit\u00adimate narcotic drug requirements of States, not parties to the Convention.[9]<\/sup><\/a><\/p>\n Legal writings thus supports the notion that treaties estab\u00adlishing objective regime may have effects\u00a0erga omnes<\/em>. Interest\u00adingly, Waldock concluded his work for the ILC with the recommen\u00addation that a treaty establishes an objective regime when it appears from its terms and to create in the general interest general obligations and rights relating to particular region, State, territory, locality, river, waterways, or to a particular area of sea,\u00a0sea-bed<\/u>, or air space….[10]<\/sup><\/a><\/p>\n International Law Commission in drafting Vienna Convention particularly in dealing with the matter of “treaties and third states” tried to cover the objective regime. Some members ex\u00adpressed the view that the concept of treaties creating objective regimes existed in international law and merited special treat\u00adment in the draft articles. In their view, treaties which fall within this concept are treaties for the neutralization or demil\u00aditarization of particular territories or areas, and treaties providing for freedom of navigation in international rivers or maritime waterways; and they cited the Antarctic Treaty as a recent example of such a treaty. Other members, however, while recognizing that in certain cases treaty rights and obligations may come to be valid\u00a0erga omnes<\/em>\u00a0considered that these cases resulted from the grafting of an international custom upon a treaty.\u00a0 Since there was no agreement with regard to the source of such effect, the Commission decided to leave this question aside in drafting articles.\u00a0\u00a0\u00a0 It must not therefore be assumed that the deliberate decision of the ILC not to make special provision for objective regimes constitutes a denial of the existence of this category of treaties. It constitutes at most a denial of the need for a special rule to explain the relationship between treaties creating objective regimes and third states.[11]<\/sup><\/a>\u00a0 It can be seen then from the Vienna Convention on Succession of States in respect of Treaties, which acknowledges the objective regime valid\u00a0erga omnes<\/em>[12]<\/sup><\/a>. In its commentary to this Convention, the ILC reaffirmed that the Vienna Convention on the Law of Treaties 1969, does not except treaties intended to create objec\u00adtive regimes from the general rules\u00a0 which it lays down concern\u00ading the effects of treaties upon third states. Unfortunately, since then, the trend indicates that the concept of objective regime valid\u00a0erga omnes<\/em>\u00a0has more likely been seen in the light of article 38 Vienna Convention than in such a category that not yet covered by the Convention.<\/p>\n The division of opinion in the ILC on the question of objec\u00adtive regime may reflect the general position of the Socialist States at that time upon the rule that obligations can not be imposed on third States in the absence of their clear consent. Curiously, this position seems to be decline, since in dealing with The LOSC, 1982, the Soviet authors supports the idea that the Convention would be law for all states-even those that are outside its framework.[13]<\/sup><\/a><\/p>\n It is also interesting to note the case of\u00a0International Status of South West Africa<\/em>\u00a0which stated:<\/p>\n <\/p>\n from time to time it happens that a group of great Powers, or a large number of States both great and small, assume a power to create by a multipartite treaty some new international regime or status, which soon extends beyond the limit of actual contracting parties, and giving it an objective existence. This power is used where some public interest is involved.<\/p>\n The next question then is what is the legal basis for the\u00a0erga omnes effect<\/em>. It can not be denied that the source of\u00a0erga omnes<\/em>\u00a0effect of objective regime is a controversial issue. The traditional approach contend that the source remains custom.\u00a0 It might be argued, if such effect remains custom, can it be said that the Antarctic Treaty, which is always being cited as a recent example of creating an objective regime, imposes obliga\u00adtions\u00a0erga omnes<\/em>\u00a0by virtue of custom when a small number of states have became parties to the treaty? McNair argues that the effect of certain kinds of treaties\u00a0erga omnes<\/em>\u00a0is to be attribut\u00aded to some inherent and distinctive juridical element in that treaty.<\/p>\n Further, Reuter stated that when consents or institution flow from a sufficiently\u00a0 representative group of States directly (principally) interested in a question, these consents or insti\u00adtutions can sometime produce effects in regard of third states. So the legal basis of the objective effects of this category of treaties is to be found not in the intention of the parties but in the consent of a sufficiently representative group of States. It is very important with regard to the multilateral treaties which establish an international regime intended to produce objective legal effects.[14]<\/sup><\/a><\/p>\n There is also an interesting argument saying that particular areas belong to no state such as high seas, seabed, and outer\u00adspace, are under occupation of international community i.e. the United Nations. On the basis of the rules of international law relating to occupation of territory, in dealing with such areas, the United Nations could enact, by a qualified majority, rules binding all states.[15]<\/sup><\/a><\/p>\n There are four elements of the seabed regime which closely related to this objective regime. Firstly, there is a legal change of regime, from the high seas regime to a newly emerging regime, from\u00a0res communis<\/em>\u00a0concept to CHM. The two are fundamen\u00adtally different.\u00a0Res communis<\/em>\u00a0regime implies free for all, and allow all states to use the area or even to abuse it more or less it wishes, including the appropriation of natural resources. Meanwhile, under CHM principle that the management, exploitation and distribution of the natural resources of the Area in question\u00a0 are matters to be decided by international community and are not to be left to the initiative and discretion of individual states or their nationals. This changing signifies that the new regime possesses universal or\u00a0erga omnes<\/em>\u00a0legal effect. Accordingly, no state can possibly claim that it is still bound by high sea regime meanwhile other states are bound by the new CHM regime.<\/p>\n <\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Secondly, the regime is intended to have permanent and general effect on a common area, a particular area which belongs to all mankind. The regime governs the Area exclusively, art. 153 (1) declares that All activities in the Area are to be organized, carried out and controlled by the authority on behalf of mankind as a whole. So it is to serve the general interest of all states or possesses public character. It is in the interest of all mankind that the seabed area shall continue forever to be used exclusively for peaceful purposes and shall be carried out for the benefit and interest of all mankind.<\/p>\n