CYIL vol. 8 (2017)

JAN ONDŘEJ CYIL 8 ȍ2017Ȏ Also, Děkanozov 20 or Molodcov, 21 for example, hold the view, that the resources that have not been exploited yet and are connected with the surface or subsurface cannot be considered common ownership of states or mankind. The word “heritage”, therefore cannot be linked with ownership. In what sense, however, can we interpret “heritage” in “common heritage of mankind”? In the author’s opinion, the word “heritage” should be interpreted in relation with mankind, where it forms a compound. Provided nobody can appropriate the sea-bed and ocean floor nor its resources found there, the question arises, who is the owner of the already excavated natural? “ Heritage” in “common heritage of mankind” means that the activities carried out on the sea-bed should be bringing benefit to mankind and, therefore, the benefit be equally divided. Equal sharing of the benefit can be considered the expression of “common heritage of mankind” in the narrow sense of the word. 1.2 The Invalidity of claims of sovereignty over the high seas As far as the sea-bed and the ocean floor are concerned, the explicit prohibition of appropriation of the sea-bed beyond the jurisdiction of states is contained in Article 137 of the UN Convention on the Law of the Sea . According to this article, no state shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources. This means not only the prohibition of claiming state sovereignty over the Area but also over its resources, that is deposits. It is the prohibition of claiming sovereignty which could be realized, for example by occupation, exploitation, etc. Apart from appropriation in the sense of exercising sovereignty , Article 137 of the Convention contains the prohibition in the sense that no state or individual or legal person can claim any part of the Area. This is understood appropriation in the sense of claiming or exercising sovereignty. The Convention stresses that no claim or exercising sovereignty nor such appropriation shall be recognized. The High sea is a space where the freedom of the sea can be exercised and states and other persons can freely appropriate its resources, that is to conduct fishing. As to the resources on the sea-bed, the Geneva Conventions on the Law of the Sea of 1958 did not prohibit exploitation of resources and their division. This issue was not dealt with. Theoretically, any state could start exploiting the resources of the sea-bed and could appropriate the benefits of such an activity. Due to technological level and economic possibilities, only the most advanced states could conduct such activity, while the other states, especially developing countries, were left behind. In the case of the sea-bed and ocean floor, however, the regulation in the UN Convention on the Law of the Sea differs from the high sea. The regime of the common heritage of mankind requires that natural resources which are going to be exploited from the sea-bed should be divided on the basis of an established international regime. In the case of the sea- bed, this is a detailed regime which is carried out by the International Seabed Authority. For this reason Article 137 Paragraph 2 of the UN Convention on the Law of the Sea sets that all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not subject to alienation. The minerals recovered

20 DĚKANOZOV, R. V., Concept of the common heritage of mankind. Soviet Yearbook of International Law , Moscow 1981, pp. 149-150. 21 MOLODCOV, S. V., International Law of the Sea, Moscow 1987, p. 194.

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