FIFTH SESSION OF INTERNATIONAL SEABED AUTHORITY, KINGSTON, 9-27 AUGUST
Press Release
SEA/1651
FIFTH SESSION OF INTERNATIONAL SEABED AUTHORITY, KINGSTON, 9-27 AUGUST
19990830Starts Second Reading of Mining Code, Adopts $5.3 Million Budget And Rules for Legal and Technical Commission; To Meet Twice in 2000
(Received from the International Seabed Authority.)
KINGSTON, 27 August -- A further step towards conclusion of the first mining code for the world's oceans was taken this month at the fifth session of the International Seabed Authority, which met in Kingston from 9 to 27 August.
The Council of the Authority completed a first reading of the code and embarked on a second reading, as it continued the laborious process of devising regulations to govern exploration for polymetallic nodules in the international seabed area.
To speed this task, the Assembly scheduled a two-part session for next year "to enable the Council to complete its work on the draft mining code during 2000". The meetings are scheduled for two weeks each in March and July. The Assembly, consisting of all 131 member States, and the 36-member Council are the main organs of the Authority and meet during its annual sessions.
The Council adopted a nearly complete set of rules for its Legal and Technical Commission, the body that assists in the Authority's duty to organize and control activities in the seabed area beyond the limits of national jurisdiction. A decision on two pending rules, on conditions under which States may take part in meetings of that expert body, was put off to next year.
A common thread emerged in the parallel discussions on the mining code and rules for the Legal and Technical Commission. On the one hand is the wish of coastal and other States, wary of damage caused by environmental disasters on the high seas, to see that the Authority is legally equipped to deal with any adverse environmental effects of future seabed activities. On the other hand, States with a special interest in carrying out mining once it becomes economically viable want to ensure that investors are not hobbled by excessive regulation. They also seek assurance that data of commercial value given to the Authority will be kept confidential.
The Assembly formalized the establishment of the Authority's Kingston offices as its permanent headquarters by approving a Headquarters Agreement with the Jamaican Government. The Agreement, which was signed by both parties during the session, governs the legal relationship between the two and establishes privileges and immunities to be enjoyed by the Authority's staff and permanent representatives of members. On another institutional topic, the Council adopted the Authority's financial regulations, which are to be applied provisionally pending Assembly approval.
A budget totalling $5,275,200 was fixed for the year 2000, up from the 1999 level of $5,011,700. It will finance a staff of 37, one more than at present.
The Assembly elected Australia and Italy to replace Canada and the United States on the Council. The latter two States ceased to be members of the Authority when the status of provisional membership ended last November. Now, only States that have adhered to the 1982 United Nations Convention on the Law of the Sea are members of the Authority.
The International Seabed Authority, an organization affiliated with the United Nations, was established in 1994 under the Convention and the associated Agreement of 1994 relating to the Implementation of Part XI (seabed provisions) of that Convention.
Mining Code
The Council completed its first reading, and began a second, paragraph-by-paragraph reading of the draft seabed mining code, a set of regulations on prospecting and exploration for polymetallic nodules in the international seabed area beyond the limits of national jurisdiction. It began this examination in March 1998, working from a 33-article text, with annexes, drafted over two years by the Legal and Technical Commission (ISBA/4/C/4/Rev.1). The Council has been working in informal, closed sessions, aiming to resolve main issues by consensus before undertaking a formal review.
After the first reading, which concluded on 13 August, a revised draft was prepared (ISBA/5/C/4 and Corr.1 and Add.1), consisting of 40 regulations and incorporating an informal revision of annex 4, containing standard clauses for exploration contracts between the Authority and seabed mining entities.
Commenting on the revised text, the Latin American and Caribbean Group and some others objected to the omission of proposals they had made during the first reading. The Group sought in particular to strengthen provisions guarding against environmental damage.
The text sets out the framework for the exploration regime, while the annexes contain a model contract and standard clauses. Once the Council has adopted the regulations, they will be applied through a series of 15-year contracts between the Authority and the private and public investors whose plans of work it has approved. The first seven of these, known as "pioneer investors", had their plans approved in 1997.
The regulations specify how the Authority will oversee prospecting and exploration by contractors. 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 implement measures to ensure the effective protection of the marine environment.
These provisions are elaborations of clauses in the Law of the Sea Convention and the related Agreement of 1994.
As an outcome of the first reading, many changes were made in the articles considered during the session just ended. The revised provisions include the following:
-- If a contractor sought to extend its plan of work for exploration, it must apply to the Authority not later than six months before the current plan expired, and any adjustments in the contractor's programme of work would require approval by the Council after agreement between the contractor and the Secretary-General.
-- Training programmes for personnel of the Authority and of developing countries, to be provided by contractors, "shall provide for full participation by such personnel in all activities covered by the contract".
-- A new paragraph binds contractors to take "precautionary measures to anticipate, prevent or minimize adverse impacts on the marine environment arising from its activities in the [international seabed] Area as far as reasonably possible using the best available technology". Precautionary measures are defined as meaning that, "where there are threats of serious or irreversible damage to the marine environment, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation".
-- Another new paragraph says that nothing in the regulations shall affect the right of coastal States to act, consistent with the Convention, to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or other hazardous occurrences.
-- A new clause would authorize the Secretary-General of the Authority, upon notification by coastal States of an environmental incident, to take temporary measures if he had "clear grounds for believing that serious harm to the marine environment is likely to occur".
-- A new regulation requires contractors to notify the Secretary-General if they found "an object of an archaeological or historical nature", in which case they would be bound to "take all reasonable measures to avoid disturbing such object".
-- On confidentiality of information supplied to the Authority by contractors, there is a new paragraph specifying that the Authority could use such data only as necessary for and relevant to the effective exercise of its powers and functions. Also, data would be confidential for 10 years after an exploration contract expired, and would remain confidential if the contractor engaged in exploitation. Data would not be considered confidential if they related to "protection and preservation of the marine environment and safety, other than equipment design data".
-- A new regulation would authorize the Commission to issue "recommendations of a technical or administrative nature for the guidance of contractors". The Council could request a change in such recommendations if it found them inconsistent with the intent and purpose of the regulations.
The start of the Council's second reading, on 23 and 24 August, covered the preamble and parts of the first regulation, defining terms. Comments were made on definitions of exploitation, exploration, marine environment, polymetallic nodules and "precautionary measures" to be taken when serious or irreversible environmental damage is threatened.
Rules of Legal and Technical Commission
The Council adopted on 26 August all but two of a set of 54 rules of procedure for its Legal and Technical Commission (ISBA/5/C/L.1/Rev.1), governing the manner in which that body conducts its work.
In reviewing a draft submitted by the Commission itself last year, the Council added a number of clauses, notably aimed at ensuring that members avoid conflicts of interest and respect the confidentiality of information they acquire on the job. According to the rules, Commission members are to have no financial interest in any seabed exploration or exploitation activity and will be required to make a written declaration to that effect. They are enjoined not to disclose confidential information they receive by reason of their duties, and the Commission is to recommend to the Council procedures for handling such information. The Council may take action against a member who violates these conflict-of-interest or confidentiality rules.
The rules allow the Commission to meet as often as required, though so far it has convened only during regular sessions of the Authority. As a general rule it is to take decisions by consensus, but if this cannot be achieved it acts by majority vote. Other rules cover the Commission's officers, secretariat services, languages and conduct of business.
The two rules on which no consensus could be reached concern private versus public meetings of the Commission (rule 6) and participation by States members of the Authority and entities active in the international seabed area (rule 53). According to the text revised in the Council, the Commission would meet in private unless it decided otherwise, taking into account the desirability of holding open meetings on issues of general interest to member States of the Authority that did not involve confidential information. With the Commission's permission, any member State of the Authority might send a representative to attend meetings and express views on any matter particularly affecting that State.
The nearly complete text approved by the Council was the product of discussion between 17 and 20 August. When it took up the revision on 25 and 26 August, it focused on a proposal by Chile, with an addition by the Russian Federation. This would require the Council, at the request of any member of the Authority, to convene the Commission for the purpose of making recommendations on a matter of particular concern to that member involving an environmental emergency. A representative of that member would be entitled to express its view without participating in decision-making. No consensus could be reached on this proposal.
The main functions of the Commission are to review applications for plans of work for exploration in the international seabed area and to advise the Council on such applications, as well as to make recommendations on protection of the marine environment and monitor compliance with the Authority's seabed regulations. Members of the Commission are elected by the Council for a five-year term; they serve as experts in their personal capacity rather than as representatives of States.
Budget and Session for 2000
The Assembly, on the Council's recommendation (ISBA/5/C/8), adopted on 27 August a $5,275,200 budget for the Authority for the year 2000. In doing so, it also decided to hold next year a two-part session, with each part lasting two weeks, "to enable the Council to complete its work on the draft mining code during 2000". It was announced that the first part would run from 20 to 31 March and the second would be in July, with dates still to be set.
As recommended by the Council, the Assembly decided (ISBA/5/A/12) to fix as a goal for the second part of the session "the conclusion and adoption of the draft mining code". To this end the agenda for the March meetings would be devoted to the code, with institutional questions left to July. These include elections to the Authority's organs and choice of a Secretary-General, as well as the work of the Finance Committee. To advance work on the code, the Secretary-General is to consult with the incoming Council President and with regional and interest groups with a view to identifying the main areas of difficulty and the most efficient work method that would enable outstanding issues to be resolved.
The Assembly specified that the decision to meet twice next year was "without prejudice to the future work pattern of the Authority". The Authority had been meeting twice a year until, last August, it opted for financial reasons to hold only one three-week session in 1999.
The Council's action on the budget and the meetings schedule were held up during the final week of the session by a disagreement over whether the Authority should meet once or twice next year to conclude work on the mining code. Many members of the Group of Western European and Other States favoured a single three-week session, arguing that streamlined procedures would enable the Council to complete work on the code next year. The compromise result was worked out informally among regional groups in the Council,
To enable the Authority to meet twice next year, the Assembly authorized the Secretary-General to transfer funds between the administrative and conference-servicing parts of the budget and to shift funds within sections of the administrative part, in amounts up to 30 per cent of each section.
The approved budget for 2000 consists of $4,065,200 for administrative expenses and $1,210,000 to service the two-part session. The main component of the administrative part is $2,064,300 for the salaries of 37 staff members, one more than had been authorized for 1999. Recruitment for three posts is frozen in 1999, so the actual increase in staff on board would be four. The additional post is for a computer software specialist. The budget for 1999, approved last August, totals $5,011,700.
The budget originally proposed by the Secretary-General in June (ISBA/5/A/2 - ISBA/5/C/2) totalled $5,679,400. After the Finance Committee recommended reductions (report in ISBA/5/A/8 - ISBA/5/C/7), the Secretary-General lowered his figure, first to $5,439,200 and then to $5,275,200. He pledged to the Council that he would try to reduce the amounts members would have to pay next year through savings if possible and also by utilizing payments for 1998 due from States in arrears. This commitment was incorporated in the budget decision of the Assembly.
The Finance Committee reported that, as at 17 August 1999, payments by member States for this year totalled $4,407,417, or 87.9 per cent of the budget, with $604,283 remaining unpaid. For 1998, the arrears of members, including four that were provisional members until November, amounted to $1,396,663.
On other financial matters, the Assembly authorized the Secretary-General to establish a scale of assessments for members' contributions to the 2000 budget, based on the United Nations scale for 1999. The Council asked the Assembly to appeal to its members, as well as to States that were provisional members until that status terminated last November, to pay their arrears as soon as possible. The firm of KPMG Peat Marwick was appointed to audit the Authority's accounts for 1999.
Future Work of Authority
The 22-member Legal and Technical Commission, which held six closed meetings during the first week of the session, recommended that the Authority launch a cooperative international programme to promote research on the marine environment. The aim would be to assess its sensitivity to possible impacts from deep-seabed activities related to mining and to ensure its protection. Funds for participating scientific institutions would come from States and international organizations.
Specifically, in view of the scant knowledge about environmental impacts, the Commission called for a secretariat study on the matter for next year's session. This study would catalogue repositories that collect environmental data required to monitor the impact of activities in the international area, identify gaps, formulate a plan for retrieving data from such sources, and make recommendations for a database for the analysis and synthesis of data.
The Commission began examining a set of draft guidelines produced by a workshop held at Sanya, China, in June 1998, to assess the environmental effects of deep-sea polymetallic nodule exploration. This draft, which the Commission saw as a guide for mining contractors rather than a package of enforceable regulations, suggests detailed procedures for measuring impacts on the main biological, chemical and oceanographic components of the marine ecosystem. The Commission will continue its study of the guidelines next year.
The Commission also repeated its recommendation of last August that the Authority convoke a workshop on minerals other than polymetallic nodules. Conveying this suggestion to the Council on 19 August in his report on the Commission's work (ISBA/5/C/6), Chairman Jean-Pierre Lenoble (France) noted that the workshop on seabed mining technology held in Kingston earlier this month had heard presentations on massive sulphide deposits and gas hydrates found in certain offshore areas. Because of the high metal value contained in some of those deposits, Mr. Lenoble said, attempts at commercial exploitation could be foreseen in the next few years.
Secretary-General Nandan commented on this matter in presenting to the Assembly on 17 August his annual report on the work of the Authority (ISBA/5/A/1 and Corr.1). Because sulphide deposits were more concentrated in their distribution than nodules, which were strewn over wide areas, regulating their exploration and exploitation might require a different kind of legal regime, he observed.
Plans for the workshop on other seabed minerals are included in the budget for 2000 approved by the Council and the Assembly.
Headquarters Agreement
The Agreement between the International Seabed Authority and the Government of Jamaica regarding the Authority's headquarters (ISBA/3/A/L.3 - ISBA/3/C/L.3 and Corr.1) was approved by the Assembly on 25 August, as recommended by the Council the previous day. It was signed on 26 August by Secretary-General Nandan and Seymour Mullings, Deputy Prime Minister and Minister for Foreign Affairs and Trade of Jamaica.
In 54 articles, the Agreement sets out rules and procedures affecting the Authority's facilities and functioning on the territory of the host country. Originally negotiated between the Authority and the Government in 1997, its approval by the Council and Assembly had been held up pending the successful outcome of negotiations on the terms under which the Authority will occupy its permanent headquarters building in Kingston.
The Agreement recognizes the legal personality and capacity of the Authority, with its seat in Jamaica, and places the headquarters under the control of the Authority while recognizing Jamaican law as applicable where it is not inconsistent with that control. The headquarters area is to be inviolable, while the Government is to provide protection. Public services are to be provided on fair terms. The communications facilities and archives of the Authority are to be inviolable, and it will have the right to publish and broadcast within Jamaica. The Authority, its property and assets are to be immune from legal process, it is to be exempt from taxes and customs duties, and it will enjoy unhindered financial facilities.
Freedom of access and residence is provided for the Authority's officials and others having official business with it, including representatives of member States. Members are authorized to establish diplomatic missions to this end, and these are to enjoy specified privileges and immunities. Thirteen provisions specify the privileges and immunities to be enjoyed by all officials of the Authority and a more limited number by experts in its employ, with the Secretary-General and other senior officials to enjoy additional ones. The Secretary-General can waive these privileges and immunities when warranted, and undertakes to ensure that they would not be abused. Persons enjoying them must nevertheless respect the laws of Jamaica.
In its decision approving this Agreement, the Assembly, also on the Council's recommendation, accepted an offer made during the session by Jamaica for a long-term lease of space in the downtown Kingston building that has housed the Authority's offices since its inception in 1995. The offer is set out in a letter of 12 August (in ISBA/5/A/4/Add.1) in which Deputy Prime Minister Mullings agreed to make space in the building indefinitely available on lease and to upgrade its electric power supply. A supplementary agreement on the terms and conditions for the use and occupancy of the permanent headquarters is to be negotiated with Jamaica.
Financial Regulations
The Council, on 26 August, adopted a set of 14 regulations (ISBA/5/C/L.3) governing the financial administration of the Authority, from budgetary preparation by the Secretary-General, through examination and approval by the Finance Committee, the Council and Assembly, and on to the handling and auditing of funds.
They provide for a financial period of two consecutive calendar years beginning with 2001-2002, marking a break with the current practice of single-year budgets. In deciding on the budget prepared by the Secretary-General every other year, the Council and Assembly are to take into account the recommendations of the Finance Committee. Appropriations by the Assembly are to be voted annually, in accordance with article 172 of the 1982 United Nations Convention on the Law of the Sea, which calls for annual budgets.
Administrative expenditures would be met from a general administrative fund, backed up by a working capital fund used to finance appropriations until income is available. Contributions from member States would be according to a scale of assessments based on the United Nations scale, with ceiling and floor (maximum and minimum) rates set by the Authority. The Authority may accept voluntary contributions in cash or otherwise, which are to be kept in trust funds or special accounts.
Funds are to be kept in banks designated by the Secretary-General, who must report thereon to the Council from time to time. The Finance Committee must be informed when money not immediately needed is invested on a short-term basis, while long-term investments of trust funds and special accounts may be made after consultations with an investment counsellor appointed on that Committee's recommendation.
In addition to internal controls, accounts of the Authority are to be examined by "an internationally recognized independent auditor with experience in the audit of international organizations". An annex to the regulations contains additional terms of reference for the audit.
In adopting the financial regulations (decision in ISBA/5/C/10), the Council decided to apply them provisionally pending approval by the Assembly, and recommended such approval.
The text was based on a draft (ISBA/4/C/L.3) submitted by the Finance Committee, which worked on it between March 1997 and August 1998. The Council examined that version on 16 August and suggestions for changes made by delegates at that time were incorporated in the final version. They concerned such matters as annual appropriations within a two-year financial period (Japan), ceiling and floor rates of contribution (Japan), the role of the Finance Committee in investment actions (Chile) and the requirement that the outside auditor have experience with international organizations (Italy).
Elections
The Assembly elected Australia and Italy, with immediate effect, to fill vacancies left by Canada and the United States on the 36-member Council of the Authority, for the balance of a four-year term through 2002. Canada and the United States had been elected in March 1998 but ceased to be members of the Authority, and therefore of the Council, when their status as provisional members of the Authority lapsed last November.
In its decision, taken on 13 August without discussion or objection, the Assembly noted an understanding that Italy would relinquish its seat on the Council if the United States became a member of the Authority. It also noted that the economic interest group to which Australia belongs is consulting about the implications of its election, "including the possibility of Canada becoming a member" of the Authority. To be a member of the Authority, a State must adhere to the Law of the Sea Convention.
Council members are selected from four groups with special interests in seabed minerals or the land-based mining of those minerals and a fifth group elected to ensure geographical balance.
Italy replaced the United States as a member of group A, consisting of four States from among the largest consumers or net importers of minerals to be derived from seabed mining. A footnote to the decision states: "This does not prejudice the position of any country with respect to any intervening election to the Council." The other Council members in this group, previously elected, are Japan, Russian Federation and the United Kingdom.
Australia replaced Canada in group C, consisting of four States that are major land-based exporters of minerals found on the deep seabed. The other Council members in this group are Chile, Gabon and Poland.
The other Council members are:
-- Group B (4 States from those with the largest investment in seabed mining): China, France, Germany and the Netherlands.
-- Group D (6 developing States representing special interests): Brazil, Egypt, Fiji, Jamaica, Oman and the Sudan.
-- Group E (18 States reflecting the principle of equitable geographical distribution, as well as a balance between developed and developing States): Argentina, Austria, Belgium, Cameroon, Costa Rica, Indonesia, Kenya, Namibia, Nigeria, Pakistan, Paraguay, Philippines, Republic of Korea, Saudi Arabia, Senegal, Trinidad and Tobago, Tunisia and Ukraine.
In respect of the seat held by Costa Rica, the Group of Latin American and Caribbean States recorded its understanding that Chile would replace that country with effect from 2001, in accordance with an understanding reached in March 1998 during the last election to the Council.
The Assembly, also on 13 August, elected three members to fill vacancies on the 15-member Finance Committee for a term ending in December 2001: Narinder Singh (India) to replace S. Rama Rao (India), Maria Dragun-Gertner (Poland) to replace Deborah M. Wynes (United States) and Hasjim Djalal (Indonesia) to replace Isaac K. Margulis (Mexico). The first two had resigned, while Mr. Margulis had left the Committee in accordance with an understanding, reached at the time of the first election to the Committee in 1996, that the Latin American and Caribbean Group would relinquish one of its seats after 1998 to an Asian candidate. Ms. Wynes' resignation was in line with another 1996 understanding that a seat of the Western European and Others Group would be relinquished after two-and-a-half years in favour of an Eastern European.
The Council elected replacements for two members who had resigned from the Legal and Technical Commission. On 10 August, S.K. Das (India) was chosen in place of H.P. Rajan (India), and on 17 August, Walter de S. Leitao (Brazil) was selected in place of Jose de Jesus Conejo (Costa Rica).
The Council agreed that the Latin American and Caribbean Group could propose an additional candidate for the Commission, without prejudice to future decisions on the number of members on that body. The Group announced that it would present a candidate next year.
The Assembly, on 13 August, approved two applications for observer status with the Authority, from the International Association of Drilling Contractors and the Secretariat of the 1992 Convention on Biological Diversity. Observers of such organizations have the right to address the Assembly and the Council.
At the outset of the session, the Assembly and Council elected Jose Luis Vallarta-Marin (Mexico) and Charles Manyang D'Awol (Sudan) as their respective Presidents for 1999.
Members and Attendance
The Authority currently has 131 members, of which 68 were recorded by the Credentials Committee on 24 August (ISBA/5/A/9) as attending the 1999 session. The membership of the Authority consists of all parties to the Law of the Sea Convention. The members are listed below, with an asterisk (*) marking those participating in the session.
Algeria, Angola, Antigua and Barbuda, *Argentina, *Australia, *Austria, *Bahamas, Bahrain, Barbados, *Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, *Brazil, Brunei Darussalam, Bulgaria, *Cameroon, Cape Verde, *Chile, *China, Comoros, Cook Islands, *Costa Rica, *Cote d'Ivoire, *Croatia, *Cuba, Cyprus, *Czech Republic, Democratic Republic of the Congo, Djibouti, Dominica, *Egypt, Equatorial Guinea, *European Community, *Fiji, *Finland, *France, *Gabon, 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, Lebanon, Malaysia, Mali, *Malta, Marshall Islands, Mauritania, Mauritius, *Mexico, Micronesia (Federated States of), Monaco, Mongolia, *Mozambique, *Myanmar.
Also *Namibia, Nauru, Nepal, *Netherlands, *New Zealand, *Nigeria, *Norway, *Oman, *Pakistan, Palau, *Panama, *Papua New Guinea, *Paraguay, *Philippines, *Poland, *Portugal, *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, Somalia, Solomon Islands, *South Africa, *Spain, Sri Lanka, *Sudan, Suriname, *Sweden, *The former Yugoslav Republic of Macedonia, Togo, Tonga, *Trinidad and Tobago, *Tunisia, Uganda, *Ukraine, *United Kingdom, *United Republic of Tanzania, *Uruguay, Viet Nam, *Yemen, Yugoslavia, *Zambia and *Zimbabwe.
Vanuatu has ratified the Convention and will become a member next month.
Six non-member States took part as observers: Canada, Colombia, Holy See, Peru, United States and Venezuela. Observers may take part in all deliberations at formal and informal meetings, without the right to vote.
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