Secrets of the Deep

UN Chronicle, Winter, 1999 by Jose Luis Vallarta

Approximately 30 years ago, Dr. Arvid Pardo, the Permanent Representative of Malta to the United Nations, asked the international community: To whom do the ocean floor and its subsoil belong? He opened a Pandora's box that launched a true revolution on the international law of the sea. Dr. Pardo referred to the above-mentioned submarine international zone and its resources as the "common heritage of mankind". That concept was translated into Spanish as "patrimonio comun de la humanidad" and into French as "patrimoine commun de l'humanite". In Spanish, and I assume also in French, the term "patrimonio" has a clearly defined legal connotation as the ensemble of goods belonging to a person-natural or juridical. A United Nations Committee was established to study this matter; English-speaking delegations refused to accept the term patrimony apparently for linguistic reasons, also because Dr. Pardo used the term heritage. Very probably, industrialized nations preferred to use a term deprived of precise legal conno tation. When the first report of that Committee expressed a broad area of disagreement, Ambassadors Alfonso Garcia Robles of Mexico and Ramiro Saraiba Guerriero of Brazil developed the idea of declaring a moratorium to avoid exploitation of the seabed resources until an international regime could be established. Their draft resolution was approved by the General Assembly, with the support mainly of developing countries. Industrialized countries rejected the moratorium since, from the beginning of this exercise, their position was to reserve the right to exploit the seabed, independent from the international regime to be established, unless that regime was favourable to their national interests. At that time, most Governments believed that the exploitation of the deep seabed was near.

I would like to pay homage to the memory of Ambassador Garcia Robles, whose name in those days was mentioned as a possible Secretary-General of the United Nations. Ambassador Garcia Robles did not hesitate; he thought the moratoria was the right thing to do and, in promoting it, he irritated several permanent members of the Security Council whose support, he knew, was essential to be elected Secretary General.

When the General Assembly approved the Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil. Thereof, beyond the Limits of National Jurisdiction, and recognizing that the ocean floor and its resources are the "common heritage of mankind", the scope of the concept was very broad. Even today, there are two extreme interpretations. For most developing countries, the Principle of the Common Heritage of Mankind means that the exploitation of the resources of the Area must be for the benefit mainly of the developing countries. For the industrialized nations, that Principle means that whoever has the resources and technology is entitled to exploit the Area, with a profit-oriented criteria and in accordance with the mandates of the market.

When the work began to determine what kind of regime had to be established, two approaches were mentioned: a system according to which the UN Secretariat should limit itself to register the activities in the Area, and a system that recognized the authority of the United nations to grant licenses for the control of such activities. A group of diplomats from Carribean and Latin American countries accredited to the United Nations met informally in New York to prepare a recommendation for their Governments about the position they should adopt.

Although taking the risk of forgetting one or more persons, I will mention the names I remember: Orlando Rebagliati (Argentina), Sergio Thompson Flores (Brazil), Espinosa Valderrama (Colombia), Fernando Zegers (Chile), Alvaro de Soto (Peru), and Lenox Ballah (Trinidad and Tobago). I had the privilege of representing my country, Mexico, in those informal consultations. We felt the need for an authority with the legal capacity to regulate and control the exploration and exploitation of the seabed resources and to distribute the profit obtained among nations with an equitable criteria, bearing in mind the needs of the poorest countries. Such criteria followed the letter and the spirit of the above-mentioned Declaration of Principles. That philosophy was based on the belief that mankind as a whole was the legitimate owner of those resources.

We made the comparison between the future regime for the seabed resources and the legal regime of oil deposits existing within the borders of a State. Nobody contested the right of oil-producing States to exploit directly or though joint ventures that particular natural resource. If the crude oil existing in the subsoil is considered an economic input when a nation agrees on a joint venture with foreign companies, we proposed a similar regime for the exploitation of the deep seabed resources, since mankind has property rights over that submarine raw material.

Even if the ideas were developed collectively, Brazilian diplomat Sergio Thompson Flores launched an idea, giving the Authority and the Enterprise the exclusive right for the exploitation of the seabed resources directly or through joint ventures. This approach was rapidly accepted by the Latin American and Caribbean Governments, and later on by the other developing countries of Africa and Asia represented in the Group of 77. The industrialized countries did not accept the approach.