SEABED COUNCIL FINISHES FIRST READING OF MINING CODE

Press Release
SEA/1630

SEABED COUNCIL FINISHES FIRST READING OF MINING CODE

(Received from International Seabed Authority.)

KINGSTON, 13 August -- The Council of the International Seabed Authority, at informal consultations in Kingston today, concluded its first reading of the draft regulations on prospecting and exploration for polymetallic nodules in the international seabed area, known as the mining code.

Winding up its work on this topic at morning and afternoon meetings, the 36-member body exchanged views on the preamble and regulation 1, containing definitions of terms.

The Council has been meeting informally since last August on a draft completed in March 1998 by its Legal and Technical Commission. The draft contains 33 regulations and 4 annexes.

The Council now awaits a revised draft incorporating proposals and suggestions made during its informal meetings. After this paper appears next week, a second reading will commence.

The draft regulations specify how the Authority will oversee prospecting and exploration by seabed mining entities operating under contract with the Authority. They spell out financial and technical requirements that contractors must meet, offer guarantees of security of tenure and confidentiality of proprietary information and require contractors to establish training programmes for personnel of the Authority and developing countries. The Authority would inspect operations and have the right to impose penalties for certain violations. Contractors would be obliged to "ensure the effective protection of the marine environment from serious harm", in the words of the original draft.

These provisions elaborate on clauses in the 1982 United Nations Convention on the Law of the Sea and the 1984 Agreement relating to the Implementation of Part XI (seabed provisions) of the Convention.

Once the mining code has been formally adopted by the Council, the Authority will be in a position to draw up contracts with the seven pioneer investors already authorized by it to carry out exploration and mining in the seabed beyond national jurisdiction. The code covers only prospecting and exploration at this stage; the Council has yet to take up regulations for exploitation.

The Council's use of informal consultations, a negotiating procedure frequently followed by the United Nations Conference on the Law of the Sea in drafting the Convention, is intended to permit a wide-ranging exchange of views and proposals without placing national positions on formal record.

Much of the discussion on the preamble centred on a sentence reading: "These Regulations may be supplemented by further rules, regulations and procedures, in particular on the protection and preservation of the marine environment". One delegation felt that this wording cleared the path for the formulation of new or amended rules in the future that would take into account knowledge acquired during prospecting, exploration and exploitation.

Some delegations wanted the wording to allow for the inclusion of "guidelines" which the Legal and Technical Commission might issue from time to time.

No agreement was reached at the end of the debate on how the three paragraphs of the preamble should be treated, although many delegations agreed that the substance of the sentence on supplementary rules could be placed in regulation 1.

In deliberations on the use of terms, delegates called for definitions of the terms "exploration area", "commercially sensitive area", "inspectors" and "precautionary measures".

With regard to the definition of exploitation, one delegation objected to the inclusion of construction and operation of mining, processing and transportation systems as part of the exploitation process. The point was made, however, that if a contractor wished to include the costs associated with these systems in cost-recovery claims, they would have to be considered part of exploitation. Another representative questioned the allusion to the production of minerals, since the production process was a land-based, rather than an exploitation, activity, but according to another member, insofar as land-based activities were associated with exploitation, they had to be included in any definition of that term.

The definition of "guidelines" to be issued by the Legal and Technical Commission was the subject of much debate. Some members stressed that the Commission had no authority to issue a legally binding instrument but could only formulate recommendations or suggest practices that the Council would then have to approve. Guidelines would not override the rules laid down by the Council, as they were merely mechanisms to assist contractors in the implementation of those rules. As such, there was no question of the Commission exceeding its mandate.

Some speakers questioned whether the code should attempt to define "marine environment", in view of the difficulty of interpreting it in a legal document. Others, however, wondered how serious harm to the environment could be understood if there was no definition.

The draft under discussion defines "marine environment" as "the physical, chemical and biological components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine ecosystem, including the coastal area, the waters of the seas and oceans and the airspace above those waters, as well as the seabed and ocean floor and the subsoil thereof".

On the definition of "serious harm to the marine environment", several delegations wanted the words "serious harm" to be replaced by the phrase "harmful effects", which would be consistent with article 145 of the Convention.

The Council agreed to incorporate in the regulations a new section, 6 bis, relating to the protection of archaeological or historical objects which may be found by a contractor during exploration activities. Under this regulation, contractors would be required to notify the Authority's Secretary-General in writing of any such discovery, and to take all reasonable measures not to disturb it.

Members agreed that all references to provisional members of the Authority should be omitted from the regulations. There was also general agreement to omit from the list of definitions the terms already defined in the Convention, and to add an explanatory paragraph to this effect.

The next meeting of the Council is scheduled for 11 a.m. Monday, 16 August, when it will take up the draft financial regulations of the Authority.

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