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Africa and the Deep Seabed Regime: Politics and International Law of the Common Heritage of Mankind pp 1–30Cite as

African States and the Evolution of the Regime of the Area and the Common Heritage of Mankind

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Abstract

In order to appreciate the intricacies of the regime of the Area and the concept of the Common Heritage of Mankind (CHM) and the position of African States in respect of these, it is helpful to begin with a historical perspective of the law of the sea generally and the development of the Area. This chapter therefore seeks to examine these historical developments from an African perspective.

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Notes

  1. 1.

    Eurocentrism has been defined as “settled habits of thought which have led to the acceptance, mostly uncritical, of European [and Western] intellectual and social cultural traditions as the invariable if not superior framework of inquiry”. See Rembe (1980), p. 30. According to Okoye: “It is suggested that the consequence of the Eurocentric origins of international law is that much of classical international law sought not only to regulate the balance of power between relatively powerful and modernised states, but also gave them special privileges and rights which frequently ran against the interest of non-European colonised peoples, then regarded as objects rather than subjects of the law”. See Okoye (1972), p. 176.

  2. 2.

    Domenichini-Ramiaramanana (1988), p. 681 at 696–703.

  3. 3.

    Masao and Mutoro (1988), pp. 586 at 600–602 and 609–610.

  4. 4.

    Ibid at pp. 609–610.

  5. 5.

    Affidavit evidence to this effect in respect of the Aworis and Efiks were deposed to by His Royal Highness, the Oba of Lagos state, Oba Adeyinka Oyekan, and the Obong of Calabar, Edidem Professor Nta Elijah Henshaw VI, respectively, in the Nigerian Supreme Court case of Attorney-General of the Federation v. Attorney-General of Abia State & 35 ors. [2002] 6 N.W.L.R (Part 764), 542 at 722–723. In addition, the writer in an oral communication in 2001 with Professor J.P. Clark-Bekederemo, a renowned Nigerian playwright and authority on Ijaw (Izon) tradition, was informed that there is oral tradition of extensive maritime activities by the Ijaw people in the Atlantic Ocean even before the Europeans arrived in Ijaw land.

  6. 6.

    Umozurike (1970), pp. 47 at 81–82 quoted in Rembe (1980) at p. 9. Also R. P. Anand, affirming that Asian and African states had little or no contribution to the origin of the law of the sea, describes the law of the sea as not only the “product of the European mind” and “European beliefs”, but also “based on European State practices which were developed and consolidated during the last three centuries” see Anand (1982). Further, Professor Verzijl conceded that the whole gamut of international law, of which the law of the sea is a part, was “the product of the conscious activity of the European mind” and “ has drawn its vital essence from a common source of European beliefs and in both these aspects it is mainly of Western European origin” Verzijl (1968), pp. 435–436.

  7. 7.

    See Sect. 1.1.4 below.

  8. 8.

    Ajomo (1973), p. 302.

  9. 9.

    O’Connell (1982), p. 2.

  10. 10.

    See generally Butler (1990), pp. 209–220.

  11. 11.

    See Knight (1926), p. 1, quoted in Anand (1987), p. 53.

  12. 12.

    Anand (1987), Ibid. pp. 53–56.

  13. 13.

    Queen Elizabeth’s reply to the Spanish envoy Menedoza in 1580 in Meurer (1919), p. 11, quoted in Anand (1982), p. 95.

  14. 14.

    Anand (1982), Ibid at p. 105.

  15. 15.

    Brown (1994), p. 7.

  16. 16.

    Brown (2001), p. 14.

  17. 17.

    See UNGA Res. 1105(XI) of 21 February 1957. On UNCLOS I generally see (1958) Am J Int Law 52:830.

  18. 18.

    Am J Int Law 52:832.

  19. 19.

    Also involved in the Conference were seven specialised agencies and nine inter-governmental organisations invited by the General Assembly as observers. Am J Int Law 52:830–831.

  20. 20.

    The Territorial Sea Convention, made up of 32 articles, was adopted on 27 April 1958 and entered into force on 10 September 1964. See (1958) Am J Int Law 52:834–842. As at 7 March 2002, there were 41 signatories and 51 parties, including Kenya (20/6/1969), Lesotho (23/10/1973), Madagascar (31/7/1962), Malawi (3/11/1965), Mauritius (5/10/1970), Nigeria (26/6/1961), Senegal (25/4/1961), Sierra Leone (13/3/1962), South Africa(9/4/1963), Swaziland (16/10/1970) and Uganda (14/9/1964). See http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/treaty1.asp.

  21. 21.

    The High Seas Convention, made up of 37 articles, was adopted on 27 April 1958 and entered into force on 20 September 1962, see (1958) Am J Int Law 52:842–851. As of 7 March 2002, there were 46 signatories and 62 parties, including Burkina Faso (4/10/1965), Central African Republic (15/10/1962), Kenya (20/6/1969), Lesotho (23/10/1973), Madagascar ( 31/7/1962), Malawi (3/11/1965), Mauritius (5/10/1970), Nigeria (26/6/1961), Senegal (25/4/1961), Sierra Leone (13/3/1962), South Africa (9/4/1963), Swaziland (16/10/1970) and Uganda (14/9/1964). See http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/treaty2.asp.

  22. 22.

    The Continental Shelf Convention, made up of 15 articles, was adopted on 26 April 1958 and entered into force on 11 June 1964, see (1958) Am J Int Law 52:858–862. As at 7 March 2002, there were 43 signatories and 57 parties, including Kenya (20/6/1969), Lesotho (23/10/1973), Madagascar (31/7/1962), Malawi (3/11/1965), Mauritius (5/10/1970), Nigeria (26/6/1961), Senegal (25/4/1961), Sierra Leone (25/11/1966), South Africa (9/4/1963), Swaziland (16/10/1970) and Uganda (14/9/1964). See http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/treaty4.asp.

  23. 23.

    The Fisheries Convention, made up of 22 articles, was adopted on 26 April 1958 and entered into force on 20 March 1966, see (1958) Am J Int Law 52:851–858. As at 7 March 2002, there were 35 signatories and 37 parties, including Burkina Faso (4/10/1965), Kenya (20/6/1969), Lesotho (23/10/1973), Madagascar (31/7/1962), Malawi (3/11/1965), Mauritius (5/10/1970), Nigeria (26/6/1961) Senegal (25/4/1961), Sierra Leone (13/3/1962), South Africa (9/4/1963) and Uganda (14/9/1964). See http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/treaty3.asp.

  24. 24.

    Harris (1998), p. 368.

  25. 25.

    See generally the Convention on Succession of States in respect of Treaties of 23 August 1978, 17 I.L.M. (1978), 1488 and Art. 15 of the Vienna Convention on the Law of Treaties of 23 May 1969, 8 I.L.M (1969), 679.

  26. 26.

    For example, the Nigerian Petroleum Act, enacted as far back as 1969, vests ownership and control of petroleum located in the continental shelf in the Federal government of Nigeria and defines the continental shelf as “the seabed and subsoil of those submarine areas adjacent to the coast of Nigeria the surface of which lies at a depth no greater than two hundred metres (or, where its natural resources are capable of exploitation, depth) below the surface of the sea, excluding so much of those areas as lies below the territorial waters of Nigeria”. See SS. 1(1) and 14(1) of Petroleum Act Cap.350, Laws of The Federation of Nigeria, 1990. The definition of the Nigerian continental shelf in this Act, which came into force on 27 November 1969, is in line with the Continental Shelf Convention 1958. See also Art. 2 (k) of the Sudanese Territorial Waters and Continental Shelf Act 1970 and Egyptian Presidential Decision No. 1051 of 1958 defining their continental shelf in line with the 1958 Convention.

  27. 27.

    The Optional Protocol, made up of only seven articles, was adopted on 29 April 1958 and came into force 30 September 1963 (1958) Am J Int Law 52:862–864. As at 7 March 2002, there were 14 signatories and 37 parties, including Ghana(29/4/1958), Liberia (27/5/1958), Madagascar (10/8/1962), Malawi (17/12/1965), Mauritius (5/10/1970), Sierra Leone (14/2/1963) and Uganda (15/9/1964). See http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/treaty5.asp.

  28. 28.

    The African states in attendance were Cameroon, Ethiopia, Ghana, Guinea, Liberia, Libya, Morocco, Sudan, Tunisia and South Africa. See UNCLOS II Official Records, pp. 13–24.

  29. 29.

    For more on UNCLOS II, see Dean (1960), pp. 751–789 and Jessup (1961), pp. 104–109.

  30. 30.

    2 YBILC (1956), p. 278, para. 2 of Commentary.

  31. 31.

    For example, by 1960 Nigeria, Senegal, Niger, Togo, Republic of Benin, Gabon, Chad, Mali, Cote d’Ivoire and Central African Republic had emerged as independent states.

  32. 32.

    See Arts. 7, 9–22 of the United Nations Charter. http://www.un.org/aboutun/charter/index.html.

  33. 33.

    Brantley (1973), p. 555 at 556. See also Okeke who talking specifically about Nigeria, explained that: “Like many other Third World States, Nigeria happens to be one of the post-colonial states which never had any say in the drafting of the Geneva Conventions of 1958”. See Okeke (1986), pp. 227–228.

  34. 34.

    2 ILM (1963) 766. See Elias (1965), pp. 243–267. Prior to the establishment of the OAU there was a conference of Heads of African and Malagasy states in Lagos, Nigeria from 25 to 30 January 1962 in which resolutions were adopted to the effect that African States should constitute themselves as a definite group in the United Nations in dealing with problems peculiar to Africa and the Malagasy States and also to “strive continuously” to ensure a fair and equitable representation of the group in organs of the United Nations. See also Okeke (1980), pp. 318–319.

  35. 35.

    See Arts. I and II of the Charter of the OAU.

  36. 36.

    See Arts. I and V of the Charter.

  37. 37.

    See the 1974 Declaration of the Organisation of African Unity on the Issues of the Law of the Sea, Doc. A/CONF.62/33 of 19 July 1974. See UNCLOS III, Official Records, Vol. 3, pp. 63–65.

  38. 38.

    Abi-Saab (1994), p. 41; See also Henkin (1979), pp. 119–134.

  39. 39.

    Okeke (1980), p. 321.

  40. 40.

    See Arts. 27 and 28 of the Constitutive Act of the African Union. http://www.africa-union.org/home/Welcome.htm and Packer and Rukare (2002), pp. 365–379.

  41. 41.

    The Constitutive Act had since been signed by all African States, except Morroco.

  42. 42.

    Art. 3 of the Constitutive Act.

  43. 43.

    See, for example, the 1974 Declaration of the Organisation of African Unity on the Issues of the Law of the Sea. UNCLOS III Official Records, Vol. III, at pp. 63–65.

  44. 44.

    For instance, the AU in 2004 supported Ambassador Charles Manyang D’Awol (Sudan) candidature for the position of Secretary-General of the ISA and also it supported the candidature of another African, Mr Nii Allotey Oduntun (Ghana) as the Secretary-General of the ISA, See International Seabed Authority Press Release, SB/10/16 of 2 June 2004 and AU doc. EX.CL/355(XI) of December 2007. Ambassador Charles Manyang D’Awol lost in the 2004 election to Satya Nandan (Fiji). Mr Nii Allotey Oduntan was elected by acclamation at the 14th Session of the ISA for a 4-year term commencing from 1 January 2009, see ISBA/14/A/L.3 of 4 June 2008. Further, the AU at its 10th Ordinary Session urged Coastal African States, with a view to meeting the 10-year deadline, to speed up the process of preparing and submitting claims for their outer limits of their continental shelf beyond 200 nautical miles (the delineation of which, as is shown in Chap. 2, is an integral part of Area), Decision on Extension of the African Continental Shelf and Climate Change, Doc.EX.CL/391 (XII), Decisions and Declarations of the 10th Ordinary Session of the Assembly of the AU, 31 January to 2 February 2008, http://www.africa-union.org/root/au/Conferences/2008/january/summit/docs/decisions/Assembly_Decisions_171-191.pdf. In addition, the AU adopts a common position in respect of the election/re-election of African judges at the International Tribunal for the Law of the Sea (ITLOS), AU Executive Council, Twelfth Ordinary Council, 25-29 January 2008, EX.CL./Dec.405(XII).

  45. 45.

    United Nations Treaty Series (UNTS) vol. 781 nos. 7477 and 8164.

  46. 46.

    Rembe (1980), p. 167.

  47. 47.

    U.N.T.S., vol. 781, nos. 7477 and 8164.

  48. 48.

    Interestingly, the American president, Lyndon Johnson, was able to identify with this fear of African states when in 1966 he warned that: “Under no circumstances, we believe, must we allow the prospects of a rich harvest of mineral wealth to create a new form of colonial competition among the maritime nations. We must be careful to avoid a race to grab and hold the lands under the high seas. We must ensure that the deep seas and the ocean bottom are, and remain, the legacy of all human beings” See “Remarks at the Commissioning of the Research Ship Oceanographer, 13 July, 1966”, quoted in Payoyo (1997), pp. 176–177 and Rembe (1980) at p. 38.

  49. 49.

    See Maltese Note Verbale of 17 August 1967 to the U.N. Secretary-General (A/6695, 18th August 1967; vol. II, Doc.12.1) and Dr. Pardo’s speech to the General Assembly’s first Committee on 1st November 1967 (A/C.1/PV.1515, 1 November 1967).

  50. 50.

    It has been said that the proposal for a legal regime for the deep seabed was already in place before Arvid Pardo’s speech. See Rembe (1980), p. 36.

  51. 51.

    General Assembly Resolution 2340 (XXII) of 18 December 1967; General Assembly Resolution 2574 (XXIV) of 15 December 1969; General Assembly Resolution 2749(XXV) of the 17 of December 1970 and General Assembly Resolutions 3029 (XXVII) of 18 December 1972 respectively.

  52. 52.

    62 States voted in favour of this resolution (including African States such as Mauritius, Tunisia, Ethiopia, Burundi, Central African Republic, Chad, Lesotho, Mali, Niger, Rwanda, Uganda, and Zambia), while there were objections from 28 States (including such African states as Ghana and South Africa). Also 28 states abstained (including such African States as Cote d’Ivoire [then Ivory Coast], Liberia, Libya, Madagascar, Sierra Leone, Togo, Sudan, Malawi, Swaziland, Burkina Faso [then Upper Volta] and Nigeria.). See Gerstle (1970); Henkin (1979), pp. 8–10.

  53. 53.

    Adopted by 108 votes for the Resolution, none against with 18 abstentions. On views in respect of the legal effect of this Resolution, see Rembe (1980) at pp. 49–57; compare with Churchill and Lowe (1999) at pp. 227–228 and Brown (2001), pp. 23–44.

  54. 54.

    See Anand (1997), pp. 1–18. Here the author expresses disappointment that the common heritage principle had been deprived of its original meaning and substance by the 1994 Agreement.

  55. 55.

    UNCLOS III Official Records, Vol. 3, pp. 63–64.

  56. 56.

    A/AC.138/34, text in DOALOS (1974), pp. 593–594. See also 10 ILM 215(1971).

  57. 57.

    DOALOS (1974), pp. 594–598.

  58. 58.

    A/AC.138/79, ibid. pp. 601–604. See also 12 ILM 210(1973).

  59. 59.

    Doc. A/CONF.62/631. UNCLOS III, Official Records, Vol. III, p. 3. This was a declaration by developing landlocked and other geographically disadvantaged States who meet in Kampala, Uganda.

  60. 60.

    See General Assembly Resolution 2340 (XXII) of 18 December 1967 and Rembe (1980), pp. 40–41.

  61. 61.

    See Rembe (1980), pp. 36–80.

  62. 62.

    On UNCLOS III, see generally Sebenius (1984); Oxman and Stevenson (1974), pp. 1–32; Oxman and Stevenson (1975a), pp. 1–30; Oxman and Stevenson (1975b), pp. 763–797; Oxman (1977), pp. 247–269; Oxman (1978), pp. 57–83; Oxman (1979), pp. 1–47; Oxman (1980), pp. 211–256; and Oxman (1981), pp. 1–23.

  63. 63.

    See the preamble of the LOSC 82 which says the states parties were inter alia: “Prompted by the desire to settle, in a spirit of mutual understanding and co-operation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world … Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole…”.

  64. 64.

    The General Assembly by several Resolutions requested the Secretary-General of the United Nations to convene the UNCLOS III. For instance, see General Assembly Resolutions 2749(XXV) of 17 December 1970; 3029 (XXVII) of 18 December 1972 and 3067 (XXVIII) of 16 November 1973. See also generally Stavropoulous (1983), pp. 11–20.

  65. 65.

    There were ten other sessions. See the Final Act of UNCLOS III. http://www.un.org/Depts/los/convention_agreements/texts/final_act_eng.pdf. For more details on the sessions, see Bernaerts (1988), pp. 311–312.

  66. 66.

    See generally Buzan (1981), pp. 324–348.

  67. 67.

    Bernaerts (1988), pp. 8–9.

  68. 68.

    Ibid.

  69. 69.

    Ibid at pp. 16–19. Israel, Turkey, United States of America and Venezuela voted against the Convention, while Belgium, Bulgaria, Byelorussia, Czechslovakia, the German Democratic Republic, the Federal Republic of Germany, Hungary, Italy, Luxembourg, Mongolia, the Netherlands, Poland, Spain, Thailand, the Ukraine, the USSR and the United Kingdom abstained. See United Nations Press Release SEA/493 of 30 April 1982.

  70. 70.

    For African states that voted to adopt the Convention, see UNCLOS III Official Records, Vol. XVI, at pp. 152–167.

  71. 71.

    Resolution I attached to the Final Act of the UNCLOS deals with the establishment of a Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, while Resolution II deals with the Preparatory Investment in Pioneer Activities relating to Polymetallic Nodules. Resolution III, on the other hand, deals with territories whose people have not attained full independence or self-governing status and Resolution IV deals with Liberation movements and their signing status of the Final Act.

  72. 72.

    See Art. 308 of LOSC.

  73. 73.

    See Brown (1994), pp. 10–11 and 95 and on the package deal see Caminos and Molitor (1985), pp. 871–890.

  74. 74.

    See Arts. 133–191 of LOSC. For more reading on this see Churchill and Lowe (1999), pp. 223–254; Brown (2001), pp. 49–151 and Mahmoudi (1987), pp. 169–305.

  75. 75.

    See Arts. 136, 137 and 141 of LOSC.

  76. 76.

    Art. 137 (2) of LOSC.

  77. 77.

    Art. 140(1) of LOSC.

  78. 78.

    Art. 140 (1) of LOSC.

  79. 79.

    Art. 140(2) of LOSC.

  80. 80.

    Wolfrum (1983), p. 327; See also Bulajic (1991), p. 633 at 641.

  81. 81.

    See http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTDEBTDEPT/0,,contentMDK:20260049~menuPK:64166739~pagePK:64166689~piPK:64166646~theSitePK:469043,00.html.

  82. 82.

    Art. 148 of LOSC.

  83. 83.

    Arts. 153 and 186 of LOSC.

  84. 84.

    Art. 153 (2) of LOSC. The United States proposed this system in April 1976. See Anand (1985), pp. 82–83.

  85. 85.

    Art. 153 of LOSC.

  86. 86.

    These provisions that have been significantly modified by the 1994 Agreement. Annex III of LOSC and Section 5 of the Annex to the 1994 Agreement.

  87. 87.

    Art. 144 of LOSC and Sect. 5, para. 1 of the Annex to the 1994 Agreement.

  88. 88.

    Arts. 150 and 151 of LOSC. This provision has also been modified by the Agreement. Section 6 of the Agreement.

  89. 89.

    Arts. 154 and 155 of LOSC.

  90. 90.

    Art. 155 (2) and (3) of LOSC. Again, these provisions have been modified by the Agreement. Section 4 of the Annex to the Agreement.

  91. 91.

    See the Final Act of UNCLOS III. http://www.un.org/Depts/los/convention_agreements/texts/final_act_eng.pdf.

  92. 92.

    See Brown (1994), pp. 448–456; Churchill and Lowe (1999), pp. 230–238.

  93. 93.

    The legislation included the United States Deep Seabed Hard Mineral Resources Act 1980,19 ILM 1003 (1980); Federal Republic of Germany’s Act on the Interim Regulation of Deep Seabed Mining 1980, 20 ILM 393 (1981) and 21 ILM 832 (1982); Britain’s Deep Sea Mining(Temporary Provisions) Act 1981, 20 ILM 1219 (1981); France’s Law on the Exploration and Exploitation of the Mineral Resources of the Deep Seabed, 21 ILM 808 (1982); Japan’s Law on Interim Measures for Deep Seabed Mining, 22 ILM 102 (1983) and Italy’s Law No. 41 of 20 February 1985, 24 ILM 983 (1985) . See Churchill and Lowe (1999), pp. 232–235. However see the Letter dated 29 August 1980 from the Chairman of the Group of 77 (E.K. Wapenyi of Uganda) to the President of the Conference, which took the position that this unilateral legislation was contrary to international law, UNCLOS III, Official Record, vol. XIV, pp. 111–114.

  94. 94.

    Churchill and Lowe (1999).

  95. 95.

    For Reports of the various sessions of the PrepCom, see Division for Ocean Affairs and the Law of the Sea (DOALOS), The Law of the Sea Bulletin Nos. 3, 4, 6, 8, 10, 12, 14, 17, 20 and 23. http://www.un.org/Depts/los/doalos_publications/los_bult.htm. The PrepCom held meetings from 1983 to 1994. See Nandan et al. (2002), pp. 56–59 and Churchill and Lowe (1999), p. 19.

  96. 96.

    Art. 5 (h) of Resolution I.

  97. 97.

    See DOALOS, The Law of the Sea Bulletin No. 3, pp. 28–35.

  98. 98.

    See Brown (2001), pp. 96–100 and Nandan et al. (2002), p. 58.

  99. 99.

    In 1982, President Ronald Reagan made it clear that the United States was not going to sign the 1982 Convention. See Nelson (1995), p. 191; Hayashi (1996), pp. 31–39; Oxman (1994), pp. 687–695; Joyner (1996), pp. 41–58; Anderson (1993), pp. 654–664 and Anderson (1994), pp. 886–893, respectively.

  100. 100.

    See Churchill and Lowe (1999), p. 19.

  101. 101.

    The top six contributors to the United Nations are the USA (22%); Japan (16.624%); Germany (8.66%); United Kingdom (6.13%); France (6.03%) and Italy (4.89%). Together they account for over 64% of the regular U.N budget while the rest of the world, including African states, accounts for less than 36% of the U.N budget. See Report of the UN General Assembly Committee on Contributions, GA Official Records Sixty-first Session(5-30 June 2006), Supplement No. 11, A/61/11, http://www.un.org/Depts/dpko/dpko/contributors/N0642856.pdf.

  102. 102.

    Marffy-Mantuano (1995), pp. 814 at 815.

  103. 103.

    See generally International Seabed Authority (2002b) and also the Report of the Secretary-General: Consultations of the Secretary-General on outstanding issues related to the deep seabed mining provisions of the United Nations Convention on the Law of the Sea, Law of the Sea Bulletin, Special Issue IV of 16 November 1994, pp. 1–6. See also Nelson (1995), p. 190 and Marffy-Mantuano (1995) at p. 815.

  104. 104.

    See “Information Note concerning the Secretary-General’s informal consultation on outstanding issues relating to the deep seabed mining provisions of the UN Convention on the Law of the Sea, New York, 25 March 1991” in International Seabed Authority (2002b), pp. 13–20. Also, see Nelson (1995), pp. 189–192; Churchill and Lowe (1999), pp. 236–238; Brown (1994), pp. 458–477; Oxman (1994), pp. 687–696.

  105. 105.

    The paper was an anonymous paper, which was called the boat paper for the simple reason that it had a picture of a boat on the cover. For the boat paper see International Seabed Authority (2002b), pp. 167–191.

  106. 106.

    The states that abstained were Colombia, Nicaragua, Panama, Peru, Russian Federation, Thailand and Venezuela.

  107. 107.

    Angola, Burkina Faso, Central African Republic, Chad, Comoros, Djibouti, Equatorial Guinea, Gambia, Guinea, Guinea-Bissau, Lesotho, Liberia, Malawi, Mali, Mauritania, Niger, Rwanda, Sao Tome and Principe, Sierra Leone, Somalia, Swaziland, Zaire (now Democratic Republic of Congo) and Zambia. See DOALOS, Law of the Sea Bulletin, special issue IV, of 16 November 1994, p. 7.

  108. 108.

    Algeria, Benin, Botswana, Burundi, Cameroon, Cape Verde, Congo, Cote d’Ivoire, Egypt, Eritrea, Ethiopia, Gabon, Ghana, Kenya, Libya, Madagascar, Mauritius, Morocco, Mozambique, Namibia, Nigeria, Senegal, Seychelles, South Africa, Sudan, Togo, Tunisia, Uganda, Tanzania and Zimbabwe.

  109. 109.

    See Sect. 4.3 of Chap. 4 of this book.

  110. 110.

    Art. 4(2) of the Agreement.

  111. 111.

    Art. 4(1).

  112. 112.

    Art. 4(3) (a). Whilst there is no specific requirement under this head for the state to declare its signature as definitive, the practice of the United Nations Secretariat requires a formal written indication of this by the state. See Brown (1995), pp. 5 at 6–7.

  113. 113.

    Art. 4(3) (b).

  114. 114.

    Art. 4(3) (c).

  115. 115.

    Art. 4(3) (d).

  116. 116.

    See Kenya’s notification consenting to be bound by signature not subject to ratification, formal confirmation or Art. 5 (1) procedure. DOALOS (1997), p. 109.

  117. 117.

    See notifications consenting to be bound by signature subject to ratification of Sudan and United Republic of Tanzania, DOALOS (1997), p. 111. In addition, Cameroon, Senegal, Seychelles, South Africa and Tunisia have consented to the Agreement by ratification. See http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#Agreement relating to the implementation of Part XI of the Convention.

  118. 118.

    Botswana and Mozambique consented by accession.

  119. 119.

    See Arts. 12, 14 and 15 of the Vienna Convention on the Law of Treaties(VCLT) 1969 which entered into force on 27 January 1980, 8 ILM 679(1969); 1155 U.N.T.S. 331.

  120. 120.

    Art. 11 of VCLT.

  121. 121.

    See Sect. 1.4 below for more on this.

  122. 122.

    The Agreement was adopted on 28 July 1994 but came into force 28 July 1996.

  123. 123.

    See relevant United Nations website in note 118 above.

  124. 124.

    See Art. 12 of VCLT.

  125. 125.

    Brown (1995), p. 7.

  126. 126.

    See footnote 118.

  127. 127.

    See DOALOS (1997), pp. 110–111. The depositary is the Secretary-General of the United Nations. See Art. 9 of the Agreement.

  128. 128.

    Art. 5(2) of the Agreement.

  129. 129.

    Belgium, Canada, China, France, Germany, India, Italy, Japan, the Netherlands, the Republic of Korea, the Russian Federation, the United Kingdom and the United States of America. See Brown (1995), p. 6. No African State is a pioneer investor in deep seabed mining. See Kwiatkowska (1993), p. 11 at 29.

  130. 130.

    See Art. 6(1) of the Agreement.

  131. 131.

    Art. 6(2) of the Agreement.

  132. 132.

    See Art. 2(1) of Agreement: Brown (1995), pp. 9–10 and Nelson (1995), pp. 192–195.

  133. 133.

    See Arts. 314, 315 and 316 of LOSC. See also Freestone and Oude Elferink (2005), p. 169 at 173–190.

  134. 134.

    Brown op. cit. p. 10.

  135. 135.

    For a full analysis of the provisions of the 1994 Agreement vis-à-vis African states see Chap. 4 and 5 of this book.

  136. 136.

    Section 2 of the Annex to the Agreement.

  137. 137.

    Section 5 of the Annex to the Agreement.

  138. 138.

    Section 7 of the Annex to the Agreement.

  139. 139.

    Section 3 of the Annex to the Agreement.

  140. 140.

    Section 6 of the Annex to the Agreement.

  141. 141.

    Section 8 of the Annex to the Agreement.

  142. 142.

    Section 4 of the Annex to the Agreement.

  143. 143.

    Section 1, para. 4 and Sect. 2, para. 1 of the Annex to the Agreement.

  144. 144.

    Section 9 of the Annex to the Agreement. This was, however, anticipated by the LOSC in Art. 162(2) (y).

  145. 145.

    See, for example, Sect. 3 paras. 8, 11(b) and 16; Sect. 5 para. 2; Sect. 6 para. 7 and Sect. 8 para 2 of the Annex to the Agreement.

  146. 146.

    See Sect. 4.2 of Chap. 4 for further discussion of the changes introduced by the Agreement.

  147. 147.

    Art. 7 of the 1994 Agreement.

  148. 148.

    Cameroon by notification chose that the provisional application of the Agreement would only apply to it upon subsequent signature or notification in writing. See Law of the Sea Bulletin, Special Issue IV of 16 November 1994, p. 45.

  149. 149.

    Morocco by notification chose not to apply the Agreement provisionally. See , Special Issue IV of 16 November 1994, p. 46.

  150. 150.

    Art. 7 (1) of Agreement.

  151. 151.

    Art. 7(3). See Charney (1994), pp. 705–714.

  152. 152.

    The provisional members were Bangladesh, Belarus, Belgium, Canada, Chile, European Community, Gabon, Lao People’s Democratic Republic, Mozambique, Nepal, Poland, Qatar, Russian Federation, Solomon Islands, South Africa, Switzerland, Ukraine, United Arab Emirates, United Kingdom and United States of America. All the African States, which were provisional members, have since become parties to both the LOSC and the Agreement. See Marffy-Mantuano (1995), pp. 821–824.

  153. 153.

    Presently the United States of America, along with 37 other states, including eleven African states, are observer States to the ISA. See http://www.isa.org.jm/en/about/members/states/observers.

  154. 154.

    For Gabon and South Africa’s statement applying to extend their provisional membership, see DOALOS (1997), pp. 118 and 120.

  155. 155.

    Nelson (1995), p. 194.

  156. 156.

    See Elias (1974), pp. 37–39 and Sohn (1994), p. 703.

  157. 157.

    This number is as at 5 October 2010. See Tables 1.1 and 1.2 above.

  158. 158.

    See footnote 118 for URL. Western Sahara(otherwise known as the Sahrawi Arab Democratic Republic) is not included in the United Nations list of states and therefore it is not included in Table 1.1 and the consideration of the number of states in the African grouping in this and subsequent chapters.

  159. 159.

    There is an unofficial United Nations General Assembly list dividing United Nations member States into regional groupings for General Assembly election purposes. The author was unable to get access to this unofficial list, which is not available for distribution to the public. However, a break down of the United Nations regional groups can be obtained from “Indicative List of States Members of the International Seabed Authority which would fulfil the criteria for Membership in the Various Groups of States in the Council in Accordance with Paragraph 15 of Section 3 of the Annex to the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982”, Prepared by the ISA Secretariat, ISBA/14/A/CRP.2 of 21 May 2008. The breakdown in Table 1.2 above of course does not include the European Union, which is also a Party to both the LOSC 82 and the 1994 Agreement. The International Seabed Authority includes the Cook Islands under the Asian Group. Therefore, the Cook Islands, an entity with a special status under international law, is also included in Table 1.2 under the Asian Group.

  160. 160.

    The 54th State in Africa – Western Sahara (Sahrawi Arab Democratic Republic) – is not listed in the table of the United Nations Ocean Affairs Division on the status of the LOSC and the 1994 Agreement because it is not a member of the United Nations.

  161. 161.

    Israel was admitted as a member of WEOG in 2000 for a renewable period of 4 years because the Arab members in the Asian group, to which it normally should belong, blocked its membership. The Department of State Report of course did not include the USA in the WEOG group but this was included in the total number in Table 1.2 above.

  162. 162.

    Although Tunisia in its declaration when ratifying the LOSC declared that it would not be a party to any Agreement which derogated from the principles of the common heritage, it actually became a party to the 1994 Agreement on 24 May 2002 though the latter watered down and in some regards derogated from the common heritage principle as enunciated in Part XI. See http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/treaty6.asp.

  163. 163.

    For example, Rwanda which is not yet a party to the LOSC and Agreement is still embarking on nation building after been embroiled in the genocide in 1994, which led to the setting up of the ICTR. With some other African states that are non-parties perhaps, other critical problems such as internal conflicts, poverty and under-development within their borders have made the need to ratify the LOSC and Agreement less of a priority.

References

  • Abi-Saab G (1994) International law and the international community, the long road to universality. In: Macdonald R St J (ed) Essays in honour of Wang Tieya. Martinus Nijhoff, Dordrecht, pp 31–41

    Google Scholar 

  • Ajomo MA (1973) Third world expectations. In: Churchill R, Simmonds KR, Welch J (eds) New directions in the law of the sea-collected papers, vol III. Oceana, New York, pp 302–310

    Google Scholar 

  • Anand RP (1982) Origin and development of the law of the sea (History of international Law Revisited). Martinus Nijhoff, The Hague

    Google Scholar 

  • Anand RP (1985) Odd man out: the United States and the U.N Convention on the law of the sea. In: Van Dyke JM (ed) Consensus and confrontation: the United States and the law of the sea convention, a workshop of the law of the Sea Institute, Honolulu, Hawaii, January 9–13, 1984. The Law of the Sea Institute, University of Hawaii, Honolulu, pp 73–124

    Google Scholar 

  • Anand RP (1987) International law and the developing countries: confrontation or co-operation? Martinus Nijhoff, Dordrecht

    Google Scholar 

  • Anand RP (1997) Common heritage of mankind: mutilation of an ideal. Indian J Int Law 37:1–18

    Google Scholar 

  • Anderson DH (1993) Universal participation in UNCLOS. Int Comp Law Q 42:654–664

    Article  Google Scholar 

  • Anderson DH (1994) Further efforts to ensure universal participation in the UNCLOS. Int Comp Law Q 43:886–893

    Article  Google Scholar 

  • Bernaerts A (1988) Bernaerts' guide to the law of the sea. Fairplay Publications, Surrey

    Google Scholar 

  • Brantley HT (1973) Law of the sea. Harvard Int Law J 14:555–565

    Google Scholar 

  • Brown ED (1994) The international law of the sea, introductory manual, vol 1. Dartmouth, Aldershot

    Google Scholar 

  • Brown ED (1995) The 1994 agreement on the implementation of Part XI of the UN convention on the law of the sea: breakthrough to universality? Mar Pol 19(1):5–20

    Article  Google Scholar 

  • Brown ED (2001) Sea-bed energy and minerals: the international legal regime-sea bed mining, vol 2. Martinus Nijhoff, The Hague

    Google Scholar 

  • Bulajic M (1991) Commercial relations. In: Bedjaoui M (ed) International law: achievements and prospects. UNESCO/Martinus Nijhoff Publishers, Paris

    Google Scholar 

  • Butler WE (1990) Grotius and the law of the sea. In: Bull H, Kingsbury B, Roberts A (eds) Hugo Grotius and international relations. Clarendon Press, Oxford, pp 209–220

    Google Scholar 

  • Buzan B (1981) Negotiating by consensus: developments in technique at the United Nations conference on the law of the sea. Am J Int Law 75:324–348

    Article  Google Scholar 

  • Caminos H, Molitor MR (1985) Progressive development of international law and the package deal. Am J Int Law 79:871–890

    Article  Google Scholar 

  • Charney JI (1994) U.S. provisional application of the 1994 deep seabed agreement. Am J Int Law 88:705–718

    Article  Google Scholar 

  • Charney J (1995) Entry into force of the 1982 convention on the law of the sea. Va J Int Law 35(2):381–404

    Google Scholar 

  • Churchill RR, Lowe AV (1999) Law of the sea. Manchester University Press, Manchester

    Google Scholar 

  • Dean AH (1960) The second geneva conference on the law of the sea: the fight for freedom of the seas. Am J Int Law 54:751–789

    Article  Google Scholar 

  • DOALOS (1974) United Nations Legislative Series, National Legislation and Treaties Relating to the Law of the Sea. United Nations, New York, pp 593–594

    Google Scholar 

  • DOALOS (Division for Ocean Affairs and the Law of the Sea) (1997) The law of the sea declarations and statements with respect to the United Nations convention on the law of the sea and to the agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982. United Nations, New York

    Google Scholar 

  • Domenichini-Ramiaramanana B (1988) Madagascar. In: El Fasi M, Hrbek I (eds) UNESCO general history of Africa, vol III: Africa from the seventh to the eleventh century. UNESCO/University of California Press, Berkeley, pp 681–703

    Google Scholar 

  • Elias TO (1965) The charter of the organization of African unity. Am J Int Law 59(2):243–267

    Article  Google Scholar 

  • Elias TO (1974) Modern law of treaties. A.W. Sijthoff International Publishing B.V, Leiden

    Google Scholar 

  • Freestone D, Oude Elferink AG (2005) Flexibility and innovation in the law of the sea – will the LOSC amendment procedures ever be used? Paper presented at the 3rd Verzijl symposium, stability and change in the law of the sea: selected issues, Utrecht University, The Netherlands, 3 December 2004

    Google Scholar 

  • Gerstle ML (1970) The politics of U.N. voting: a view of the seabed from the glass palace. Law of the Sea Institute, University of Rhodes Island, Rhode Island

    Google Scholar 

  • Harris DJ (1998) Cases and materials on international law, 5th edn. Sweet & Maxwell, London

    Google Scholar 

  • Hayashi M (1996) The 1994 agreement for the universalization of the law of the sea convention. Ocean Dev Int Law 27(1–2):31–39

    Article  Google Scholar 

  • Henkin L (1979) How nations behave-law and foreign policy. Columbia University Press, New York

    Google Scholar 

  • International Seabed Authority (2002b) Secretary-general's informal consultations on outstanding issues relating to the deep seabed mining provisions of the United Nations convention on the law of the sea: collected documents. International Seabed Authority, Jamaica

    Google Scholar 

  • Jessup PC (1961) The law of the sea around us. Am J Int Law 55:104–109

    Article  Google Scholar 

  • Joyner C (1996) The United States and the new law of the sea. Ocean Dev Int Law 27:41–58

    Article  Google Scholar 

  • Knight WSM (1926) Seraphin de Freitas: Critic of Mare Liberum. Trans Grotius Soc 11:1

    Google Scholar 

  • Kwiatkowska B (1993) Ocean affairs and the law of the sea: towards the 21st century. Mar Pol 17(1):11–43

    Article  Google Scholar 

  • Mahmoudi S (1987) The law of deep sea-bed mining – a study of the progressive development of international law concerning the management of the polymettalic nodules of the deep sea-bed. Almqvist & Wiksell International, Stockholm

    Google Scholar 

  • Marffy-Mantuano A (1995) The procedural framework of the agreement implementing the 1982 United Nations convention on the law of the sea. Am J Int Law 89:814–824

    Article  Google Scholar 

  • Masao FT, Mutoro HW (1988) The East African coast and the Comoro islands. In: El Fasi M, Hrbek I (eds) UNESCO general history of Africa, vol III. UNESCO/University of California Press, Berkeley, pp 586–615

    Google Scholar 

  • Meurer C (1919) The program of the freedom of the sea: a political study in international law (trans. from German: Frachtenberg LJ). Washington

    Google Scholar 

  • Nandan SN, Lodge MW, Rosenne S (eds) (2002) The development of the regime for deep seabed mining. Kluwer Law International, The Hague

    Google Scholar 

  • Nelson LDM (1995) The new deep sea-bed mining regime. Int J Mar Coast Law 10(2):189–203

    Article  Google Scholar 

  • O'Connell DP (1982) International law of the sea. Clarendon, Oxford

    Google Scholar 

  • Okeke CN (1980) International law. In: Okonkwo CO (ed) Introduction to Nigerian law. Sweet & Maxwell, London, pp 304–326

    Google Scholar 

  • Okeke NC (1986) The theory and practice of international law. Fourth Dimension, Enugu

    Google Scholar 

  • Okoye FC (1972) International law and the new African states. Sweet & Maxwell, London

    Google Scholar 

  • Oxman BH (1977) The third United Nations conference on the law of the sea: the 1976 New York sessions. Am J Int Law 71(2):247–269

    Article  Google Scholar 

  • Oxman BH (1978) The third United Nations conference on the law of the sea: the 1977 New York session. Am J Int Law 72(1):57–83

    Article  Google Scholar 

  • Oxman BH (1979) The third United Nations conference on the law of the sea: the eighth session. Am J Int Law 74(1):1–47

    Article  Google Scholar 

  • Oxman BH (1980) The third United Nations conference on the law of the sea: the ninth session. Am J Int Law 75(2):211–256

    Article  Google Scholar 

  • Oxman BH (1981) The third United Nations conference on the law of the sea: the tenth session. Am J Int Law 76(1):1–23

    Article  Google Scholar 

  • Oxman BH (1994) The 1994 agreement and the convention. Am J Int Law 88(4):687–696

    Article  Google Scholar 

  • Oxman BH, Stevenson JR (1974) The preparations for the law of the sea conference. Am J Int Law 68(1):1–32

    Article  Google Scholar 

  • Oxman BH, Stevenson JR (1975a) The third United Nations conference on the law of the sea: the 1974 caracas session. Am J Int Law 69(1):1–30

    Article  Google Scholar 

  • Oxman BH, Stevenson JR (1975b) The third United Nations conference on the law of the sea: the 1975 geneva session. Am J Int Law 69(4):763–797

    Article  Google Scholar 

  • Packer C, Rukare D (2002) The new African union and its constitutive act. Am J Int Law 96(2):365–379

    Article  Google Scholar 

  • Payoyo PB (1997) Cries of the sea: world inequality, sustainable development and the common heritage of humanity. Martinus Nijhoff, The Hague

    Google Scholar 

  • Rembe NS (1980) Africa and the international law of the sea: a study of the contribution of the African states to the third United Nations conference on the law of the sea. Sijthoff & Noordhoff, Alphen aan den Rijn

    Google Scholar 

  • Sebenius JK (1984) Negotiating the law of the sea. Harvard University Press, Cambridge

    Google Scholar 

  • Sohn L (1994) International law implications of the 1994 agreement. Am J Int Law 88:696–705

    Article  Google Scholar 

  • Stavropoulous CA (1983) The third conference on the law of the sea in a historical perspective. In: Rozakis C, Stephanous C (eds) The new law of the sea: selected and edited papers of the Athens colloquium on the law of the sea, September 1982. North-Holland, Amsterdam, pp 11–20

    Google Scholar 

  • Umozurike O (1970) International law and colonialism in Africa: a critique. East Afr Law Rev 3(1):47–82

    Google Scholar 

  • Verzijl JHW (1968) International law in historical perspective, vol I. Sijhoff, Leiden

    Google Scholar 

  • Wolfrum R (1983) The principle of the common heritage of mankind. Z Auslandisches Offentliches Recht Volkerrecht 43:315–324

    Google Scholar 

Download references

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  1. Department of Politics, Cardiff University, Park Place 65-68, CF10 3AS, Cardiff, United Kingdom

    Dr. Edwin Egede (Lecturer in international law & international relations)

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Egede, E. (2011). African States and the Evolution of the Regime of the Area and the Common Heritage of Mankind. In: Africa and the Deep Seabed Regime: Politics and International Law of the Common Heritage of Mankind. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-17662-3_1

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