INTERNATIONAL SEABED AUTHORITY CONCLUDES FIRST PART OF FOURTH SESSION KINGSTON, 16 - 27 MARCH
Press Release
SEA/1584
INTERNATIONAL SEABED AUTHORITY CONCLUDES FIRST PART OF FOURTH SESSION KINGSTON, 16 - 27 MARCH
19980331 Examines New Draft of Mining Code for Polymetallic Nodules; Elects New Council Members, Approves Protocol on Privileges(Received from the International Seabed Authority.)
KINGSTON, 27 March -- A new draft of a mining code to regulate the search for polymetallic nodules in the international area of the deep seabed was placed before the International Seabed Authority this month, at the first part of its fourth session, held from 16 to 27 March.
The draft, a product of two years of work by the Authority's Legal and Technical Commission, was received by the Council of the Authority, which devoted formal meetings to the text and examined its details in informal sessions. The proposed regulations define how the Authority will oversee prospecting and exploration by private and public contractors interested in recovering mineral-rich lumps containing manganese, nickel, cobalt and copper from ocean bottoms beyond any nation's jurisdiction.
The Assembly of the Authority, the other of its two principal organs meeting during the session, elected half the membership of the 36-member Council for new four-year terms beginning January 1999. The Assembly is composed of all 137 members of the Authority.
The Assembly also approved a protocol on privileges and immunities, which deals with matters pertaining to the legal status of the Authority, its officials and representatives of its members. The protocol is a treaty that requires adherence by at least 10 States before it enters into force, but the Assembly encouraged countries to apply it provisionally in the meantime.
At the start of the session, the Assembly was alerted to an impending "critical" financial situation, due to the fact that it had collected less than $0.9 million out of the $4.9 million required for the 1998 budget and the working capital fund. By the end of the session, receipts had risen to just over $1.4 million, leaving $3.5 million still to be contributed. Members were urged to pay soon, to avoid a financial situation which Secretary-General Satya N. Nandan described as "pretty bad".
By acclamation, the Assembly elected Tadeusz Bachleda-Curus (Poland) as its President for the 1998 session. Joachim Koch (Germany) was elected Council President.
The Seabed Authority was established by the 1982 United Nations Convention on the Law of the Sea and an associated agreement of 1994. Its function is to control all resource-related conduct in the international seabed area by States and other entities, including international consortia and private national companies.
The Authority will hold the final part of its 1998 session in Kingston from 17 to 28 August, to continue work on the mining code and adopt a budget for 1999.
Mining Code for Polymetallic Nodules
The draft regulations on prospecting and exploration for polymetallic nodules in the international seabed area were presented to the Council on 23 March by the Chairman of the Legal and Technical Commission, Jean-Pierre Lenoble (France). The 22-member body of experts completed its work on the text at closed meetings during the first week of the session.
The basic text, consisting of 33 regulations, sets out the framework for the exploration regime, while annexes contain a model contract and standard clauses. Its terms are based on provisions in the two basic instruments governing the Authority's work -- the United Nations Convention on the Law of the Sea, adopted in 1982 and in force since 1994, and the Agreement relating to the Implementation of Part XI (seabed provisions) of the Convention, adopted in 1994 and in force since 1996.
The provisional text defines the manner in which interested parties can become seabed contractors by obtaining the Authority's approval of their plans of work for exploration in specified geographical areas. Applicants must be sponsored by States and must possess certain financial and technical capabilities. They would have to supply specified kinds of information in support of their plans and pay a $250,000 fee. Plans of work would require approval by the Commission and consideration by the Council, subject to the provision in the implementation agreement that the plans of registered pioneer investors shall be considered approved by the Council.
Once a plan of work was approved, the Authority would issue a 15-year contract granting recognized security of tenure. That would incorporate schedules giving the geographical coordinates and an illustrative chart of the exploration area, as well as a work programme that would be reviewed every five years jointly by the Authority and the contractor. Each contractor would be obligated to provide a training programme for personnel of the Authority and developing countries.
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The obligation of contractors to keep books and records and to submit annual reports is spelt out, as is a requirement to submit information once the contract expires. The confidentiality of information submitted to the Authority by contractors would be assured. Contractors would be obliged to accept inspection by the Authority, comply with safety, labour and health standards, and accept responsibility and liability for damage. The Authority would have the right to suspend or terminate the contract and to impose penalties under certain circumstances.
Most of the text reproduces a preliminary version produced by the Commission last August and circulated to Authority members for comments. However, the new text incorporates several changes, notably relating to environmental protection and the confidentiality of data and information provided by contractors.
The regulations specify that the freedom of marine scientific research, enshrined in the Law of the Sea Convention, is not affected.
Regarding environmental protection, a new clause would require applicants for an exploration contract to submit "a preliminary assessment of the possible impact of the proposed exploration activities on the environment", as well as a description of proposed measures to prevent, reduce and control pollution and other environmental hazards. Another added paragraph would oblige contractors to "ensure the effective protection of the marine environment from serious harm" and to "take precautionary measures to anticipate, prevent or minimize any adverse impacts on the marine environment ... as far as reasonably possible, using the best available technology".
With regard to confidentiality of data, expanded clauses on information required from prospectors and contractors would extend to 10 years or more the period during which the Authority must maintain the confidentiality of commercially sensitive and proprietary data. The Commission, with the consent of the prospector, could release such data when prospecting has ended, but data obtained from exploration would remain confidential if the contractor embarked on exploitation. Proprietary data or other confidential information supplied by contractors could not be disclosed by Commission members or Authority staff even after termination of their functions.
Commission Chairman Lenoble pointed out that the draft dealt only with prospecting and exploration for polymetallic nodules. Additional provisions would have to be established later to regulate the future exploitation of nodules and the prospecting, exploration and exploitation of the other mineral resources of the area, he noted.
The Chairman explained that it had been found useful to introduce the concept of "guidelines" -- to be issued with the Commission's approval -- which would complete the provisions of the code and guide the conduct of
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seabed contractors. In that regard, the Commission proposed to draft a list of environmentally appropriate technologies for exploration.
The Council's four-day deliberations on the draft took the form of general statements by 25 delegations and informal meetings in which the document was examined regulation by regulation.
Among the pioneer investors in seabed mineral exploration, the Russian Federation made the point that profitability was important to potential investors; therefore, the mining code should provide a workable balance between their interests and those of the Authority. China said that, since the code was intended to cover prospecting and exploration only, it should not attempt to regulate situations that might occur during the exploitation stage. Supporting comments by others on the provisions on training programmes by seabed contractors, France said a system must be in place to encourage the transfer of knowledge. On environmental protection, Germany said knowledge of the potential impact of exploitation activities would be gained only after testing of mining equipment.
The United States, while welcoming the progress and positive developments on the mining code, observed that commercial deep-seabed mining was still decades away and would only augment, not replace, land mining. The United Kingdom expressed cautious optimism that, given the nature and the composition of the Authority, the "North-South confrontation" that was a feature of international deliberations during the 1970s would not be revisited in the mining code discussions.
Brazil, speaking on behalf of the "Group of 77" developing countries, voiced concerns about provisions for protection and preservation of the marine environment, regulations on the confidentiality of information supplied by seabed contractors, and training programmes and technology transfer issues. Regarding the Authority's role, the Group of 77 said the code should ensure its ability to comply with its mandate of effectively regulating, managing and monitoring seabed mining activities; some of its provisions did not seem to enable the Authority to acquire enough information to that end. The Group welcomed workshops planned by the Authority during this year and next to deal with available knowledge on the environment and on technologies for mineral exploration and environmental protection.
Among suggestions by other developing countries, Chile advanced the idea of establishing a fund to compensate coastal States in the event of accidental environmental damage. Cameroon, Indonesia and Nigeria felt that the term "commercially sensitive data", which the Authority would have to keep confidential under the code, needed a more precise definition and should not be left to the interpretation of the contractor alone. On this point, Tunisia thought the text placed too much emphasis on confidentiality rather than international cooperation.
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At the close of that discussion, Council President Koch (Germany) observed that the Council had made a good start, but needed to make considerably more efforts during intensive meetings in August.
Council Election
Acting by consensus on 26 March, the Assembly elected 18 new Council members to serve for four years beginning 1 January 1999. They will join 18 States placed on the Council for four years as a result of the initial election in 1996.
On 25 March, the Assembly clarified a point not resolved in 1996, by aligning the terms of office with calendar years. As a consequence, members whose terms end this year will remain on the Council through the end of 1998. Assembly President Bachleda-Curus, in a statement approved by regional and other groups, affirmed that that decision would not, in any way, affect arrangements reached by interest or regional groups in 1996 and at the 1998 session regarding any of the seats on the Council. These arrangements call for certain members to relinquish their seats to others before serving a full term.
The consensus decision on Council membership contrasted with the initial election in 1996, when contention over the composition of the Council held up the Authority's work for a year.
The pattern of membership in the 36-member Council, set by the Law of the Sea Convention, calls for a fixed balance among four interest groups and a fifth group designed to achieve overall geographical balance. Terms are for four years, with half the membership elected every other year.
The status of membership in the Council, including agreed arrangements relating to certain seats, is as follows [(N) = newly elected, (R) = re-elected]:
-- Group A (four States from among the largest consumers or net importers of minerals to be derived from seabed mining): Japan and the United Kingdom through 2000; and the Russian Federation (R) and United States (R) through 2002.
-- Group B (four States from those with the largest investment in seabed mining): China and France through 2000, and Germany (R) and the Netherlands (N) through 2002. India will leave at the end of 1998, but will be elected to a four-year term in 2001.
-- Group C (four States that are major land-based net exporters of minerals found on the deep seabed): Chile (R), Gabon and Poland through 2000, with the Chilean seat to be relinquished to Indonesia for 2001-2002, after which it will be open to any Group C State; and Canada (N) through 2002, to be replaced by Australia in 2003-2006, after which the seat will be open to any Group C State.
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Australia and Zambia will leave at the end of 1998. Indonesia, a Group C member through 1998, will remain on the Council, but as a Group E member through 2000; its Group C seat will be relinquished for 1999-2000 to Poland and will, thereafter, be open to any Group C State, on the basis that Poland will serve for two years between 2001 and 2006. After 2000, the seat occupied by Gabon will go to South Africa for four years, with the understanding that it will be relinquished to Zambia for the third year and to Gabon for the fourth; then, after 2004, it will be open to any Group C State.
-- Group D (six developing States representing special interests): Brazil, Egypt, Oman and the Sudan through 2000, and Fiji (N) and Jamaica (R) through 2002. Egypt, a Group E member through 1998, will relinquish its new Group D seat at the end of 2000. Bangladesh and Cameroon will leave at the end of 1998. Nigeria, a Group D member through 1998, has been elected from Group E through 2002.
-- Group E (18 States reflecting the principle of geographical distribution, as well as a balance between developed and developing States): Austria (N) and the Philippines through 1999, with the Austrian seat to be relinquished to Belgium at the end of 1999 and the Philippines to relinquish its seat, but participate without vote during 2000; Argentina, Belgium, Kenya, Namibia, Senegal, Trinidad and Tobago, and Ukraine through 2000, with the Western European and Others Group to determine the occupancy of Belgium's seat for the following two years; and Cameroon (R), Costa Rica (N), Nigeria (R), Pakistan (N), Paraguay (R) Republic of Korea (R), Saudi Arabia (N) and Tunisia (R) through 2000.
Cuba, Italy, Malaysia, Poland, South Africa and Tunisia will leave at the end of 1998. As noted above, Egypt and the Sudan, members from Group E through 1998, will remain through 2000, but from Group D.
The 1996 agreement allocates 10 seats to the African Group, nine to the Asian Group, eight to the Western European and Others Group, seven to the Latin American and Caribbean Group, and three to the Eastern European Group. As this totals one more than the 36 available seats, it was agreed then that, in each of the first four years, one group other than the Eastern European would forgo a seat, in rotation: the Latin American and Caribbean in 1996, the Western European and Others in 1997/1998, the African in 1999 and the Asian in 2000. During the year when it relinquishes a Group E seat, each group may designate a member to participate in the Council's deliberations without the right to vote. Austria participated on this basis in 1997/1998 and the Philippines will do so in 2000.
Protocol on Privileges and Immunities
The Assembly unanimously approved the text of a protocol on privileges and immunities. The 22-article text covers matters pertaining to the legal
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entitlements and obligations of the Authority, notably the privileges and immunities of members' representatives, officials and experts, and the use of laissez-passer (travel documents) by the Authority, its officials and representatives of member States. The protocol was presented to the Assembly on 26 March by Zdzislaw Galicki (Poland), Chairman of the working group which completed it over the past two years.
The Assembly had established the working group in August 1996 to review a draft prepared in 1992 by the Preparatory Commission for the Authority and the International Tribunal for the Law of the Sea, and a secretariat draft based on that text. In the Assembly last March, President S. Amos Wako (Kenya) noted that some members of the Authority had questioned whether a protocol was necessary, since many of its provisions were already addressed in the Law of the Sea Convention. After consultations last March, the secretariat prepared a new, shorter text concentrating on matters not covered in detail in the Convention. Its 13 articles covered matters pertaining to the legal status of the Authority not dealt with in the Convention. At the end of the August 1997 session, the working group circulated an informal revision of that text, which formed the basis of this year's deliberations.
According to the protocol as approved by the Assembly, representatives of the Authority's members would enjoy the privileges and immunities normally accorded to diplomats. Those include legal immunity in respect of what they say or do while exercising their functions, inviolability of papers and exemption from immigration restrictions.
Specified categories of the Authority's officials would also enjoy immunity in regard to their official words or actions. They would also be exempt from immigration restrictions and from taxation of their salaries. The Authority could waive immunity in the interest of justice.
States parties would recognize and accept the United Nations laissez-passer issued to officials of the Authority, without prejudice to the possibility for the Authority to issue its own travel documents. Visa applications from holders of that document would have to be dealt with as speedily as possible.
The Authority would have the legal capacity to enter into contracts, buy and sell property, and be a party in legal proceedings. It could also purchase, hold or transfer any currencies, funds and securities, without being restricted by financial controls or regulations.
The preamble refers to additional privileges and immunities set out in the Law of the Sea Convention, accorded to the Authority and its Enterprise, the prospective seabed-mining organ. Those deal with such matters as immunity from legal process, search and seizure, as well as exemption from restrictions, regulations, controls and moratoria.
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In approving the protocol the Assembly approved a decision by which it noted that the privileges and immunities accorded to the Secretary-General of the Authority would be extended to the "Director-General of the Enterprise, when elected".
The protocol will be open for signature by all members at its headquarters in Kingston from 17 to 28 August 1998, and thereafter until August 2000 at United Nations Headquarters in New York. While it will take effect 30 days after the first 10 members adhere to it, the protocol also provides that a State which intends to be a party may, at any time, give notice that it will apply the instrument provisionally for a period not exceeding two years.
Finances of the Authority
On the second day of meetings, outgoing Assembly President S. Amos Wako (Kenya) informed members of the "critical" financial situation facing the Authority. Of the $4.7 million budget for 1998 approved last August, only $892,466 had been received from assessed contributions, from 25 of the 137 members. With fixed costs running at about $250,000 a month, more than $1,305,000, including conference costs, had already been incurred between January and March. Mr. Wako reminded members that, as of January 1998, the Authority was entirely dependent on those assessed contributions for all its administrative and substantive functions, as the United Nations was no longer financing it.
At the final meeting of the Assembly, the Secretary-General reported that, while the financial situation had improved with the receipt of additional contributions, it remained bad, with only a quarter of the budgeted funds in hand. Mr. Nandan said he intended to write those governments that had not yet paid.
Headquarters of Seabed Authority
In a letter dated 10 March, the Government of Jamaica offered to the Authority the office block it currently occupies on Port Royal Street in downtown Kingston, for permanent use as its headquarters, rent free. The Government pledged to undertake a certain amount of refurbishing to the building, but said the Authority would be responsible for all subsequent maintenance costs. Separate arrangements would continue for use of the Jamaica Conference Centre for meetings.
After consulting the Finance Committee, the secretariat responded to the Government's letter, seeking clarification on some aspects of the offer. Secretary-General Nandan told the Assembly on 16 March that the secretariat had commissioned a report on the condition of the building, including its air-conditioning plant and stand-by generator, as well as a calculation of the maintenance costs that the Authority would have to pay. Also being explored
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was the possibility of sharing with other international organizations the use of space not immediately needed by the Authority. (The United Nations Environment Programme now occupies part of two floors in the Port Royal Street building.) Secretary-General Nandan will report on the outcome of this study to the Council in August.
Provisional Membership and Observer Status
The Council approved the requests of Canada and Ukraine for extension of their provisional membership in the Authority for one year from 16 November 1997.
Provisional members are States or other entities that have not adhered to the Convention, but have notified in writing their intention to apply it and the implementation agreement provisionally. Provisional membership must be approved in each case by the Council, provided it is satisfied that the requesting party has been making good-faith efforts to adhere to the agreement and the Convention.
The Assembly approved a request by the Permanent Commission of the South Pacific, a subregional organization composed of Chile, Colombia, Ecuador and Peru, for observer status with the Authority. It is the ninth intergovernmental organization to be granted that status.
Other Matters
The Assembly elected Kuwait, Mexico, Netherlands and Senegal as its Vice-Presidents. For its corresponding officers, the Council chose Argentina, Cameroon, Indonesia and the Russian Federation.
The Assembly elected Walid Doudech (Tunisia) as a member of the Finance Committee to replace his compatriot, Samia Ladgham, who resigned from the Committee last December.
The Assembly deferred to August the draft agreement on the relationship between the Authority and the International Tribunal for the Law of the Sea, to await a response from the Registrar of the Tribunal.
The Finance Committee worked on financial regulations for the Authority and took up proposed staff regulations. That work will continue at the resumed session in August.
Both the Assembly and the Council adopted agendas for the 1998 session. In addition to matters carried over from March, at the August part of the session the Authority is to adopt a 1999 budget and a scale of assessments of contributions by member States, and examine the annual report of the Secretary-General.
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Members of Authority
The 137 members of the Authority, including 14 provisional members (P), are: Algeria, Angola, Antigua and Barbuda, *Argentina, *Australia, *Austria, *Bahamas, *Bahrain, Bangladesh (P), Barbados, Belarus (P), *Belgium (P), Belize, Benin, Bolivia, Bosnia and Herzegovina, *Botswana, *Brazil, Brunei Darussalam, Bulgaria, *Cameroon, *Canada (P), Cape Verde, *Chile, *China, Comoros, Cook Islands, *Costa Rica, *Côte d'Ivoire, *Croatia, Cuba, *Cyprus, *Czech Republic, Democratic Republic of the Congo, Djibouti, Dominica, *Egypt, Equatorial Guinea, *European Community (P), Federated States of Micronesia, *Fiji, *Finland, *France, *Gabon (P), Gambia, Georgia, *Germany, *Ghana, *Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, *Haiti, *Honduras, Iceland, *India, *Indonesia, Iraq, *Ireland, *Italy, *Jamaica, *Japan, Jordan, *Kenya, *Kuwait, Lao People's Democratic Republic (P), Lebanon, Malaysia, Mali, *Malta, Marshall Islands, *Mauritania, Mauritius, *Mexico, Monaco, Mongolia, *Mozambique, *Myanmar.
Also *Namibia, Nauru, Nepal (P), *Netherlands, New Zealand, *Nigeria, *Norway, *Oman, *Pakistan, Palau, Panama, Papua New Guinea, *Paraguay, Philippines, *Poland (P), *Portugal, *Qatar (P), *Republic of Korea, Romania, *Russian Federation, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Sao Tome and Principe, *Saudi Arabia, *Senegal, Seychelles, Sierra Leone, Singapore, *Slovakia, Slovenia, Solomon Islands, Somalia, *South Africa, *Spain, Sri Lanka, *Sudan, *Sweden, *Switzerland (P), The former Yugoslav Republic of Macedonia, *Togo, *Tonga, *Trinidad and Tobago, *Tunisia, Uganda, *Ukraine (P), *United Arab Emirates (P), *United Kingdom, United Republic of Tanzania, *United States (P), *Uruguay, Viet Nam, Yemen, Yugoslavia, *Zambia and Zimbabwe.
* *** *
* Attended the session (71).