SEABED COUNCIL DISCUSSES ENVIRONMENTAL EMERGENCIES, COASTAL STATE RIGHTS, ARCH"OLOGICAL FINDS

Press Release
SEA/1663

SEABED COUNCIL DISCUSSES ENVIRONMENTAL EMERGENCIES, COASTAL STATE RIGHTS, ARCHAEOLOGICAL FINDS

(Received from the International Seabed Authority.)

KINGSTON, 22 March -- The Council of the International Seabed Authority, continuing this afternoon in Kingston its informal consultations on a code for deep- sea mineral exploration, completed a second reading of regulations to protect and preserve the marine environment. It discussed emergency orders to deal with environmental incidents, the right of coastal States to protect their marine environment and the protection of archaeological or historical objects found on the seabed.

During the discussion, a new regulation was proposed to help pay for the Authority's emergency measures. Under that scheme, a seabed operator would have to provide an "environmental warranty" when signing an exploration contract with the Authority.

The Council, during the first three days of its current session beginning 20 March, has now completed its review of two of the three most controversial parts of the proposed code. It finished yesterday, 21 March, with provisions on exploration contracts between the Authority and seabed operators, including liability for damages. Tomorrow morning, 23 March, it will take up the third of those parts, on confidentiality of data supplied by contractors.

The purpose of these meetings is to enable Council members and other interested States to exchange views informally and make proposals leading up to its objective of completing this year a mining code containing regulations on prospecting and exploring for polymetallic nodules in the international seabed area. It is working on a text (ISBA/5/C/4/Rev.1) hammered out in the Council over the past two years. No final decisions are being taken during this stage of informal consultations. Rather, the aim is to identify areas of agreement and disagreement, and negotiate over differences.

Emergency Orders

The afternoon's proceedings began with a summing up by Secretary-General Satya N. Nandan of changes to regulation 33 (emergency orders) based on this morning's discussion. That provision describes procedures to be followed by the Authority to deal with emergencies arising from seabed activities that cause or threaten "serious harm to the marine environment". (The regulation is summarized in press release SEA/1661.)

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The proposed changes highlighted by the Secretary-General included the following:

-- The regulation would now begin: "When the Secretary-General is notified by a contractor or other source or otherwise becomes aware of an incident resulting from or caused by a contractor's activities in the Area ...". The added phrase specifies the possible sources of information about an incident.

-- The Secretary-General's report on an incident would be circulated to international and regional bodies as well as all members of the Authority.

-- Regarding the authority given to the Secretary-General to take immediate measures, the text would read "shall take" rather than "may take".

-- The Secretary-General would monitor the development of an environmental incident for an extended period of time.

With regard to the maximum duration of temporary emergency measures taken by the Secretary-General, Mr. Nandan suggested that there could be an initial period of 45 days, to be extended to 90 if necessary.

On steps to be taken if a contractor did not comply with emergency orders, he thought the clause could be redrafted to make it clear that the "arrangements with others" would not entail the Council's delegating its powers to any other entity. Rather, it would enable the Council, for example, to hire a firm to take corrective measures. Regarding a suggestion that the regulation should authorize sanctions against non-compliant contractors, he noted that a proposed annex to the regulations outlined such sanctions as suspension and termination of contracts and other penalties.

The proposal to introduce a new regulation arose out of one delegation's concern over the financing of activities which the Secretary-General or the Council might have to undertake in handling emergencies, especially when the contractor was unwilling or unable to fulfil its obligations to protect the marine environment after an incident arising out of its activities. The proposal reads:

1. With a view to ensuring that the Authority can immediately take the measures provided for in regulation 33(6), in the event that the contractor cannot immediately do this, the applicant should make available an environmental warranty at the time of signature of the contract.

2. The amount of the warranty will be proposed by the applicant at the time he submits the information required in regulation 18, which will be assessed by the Legal and Technical Commission taking into account the possible consequences for the environment from proposed exploration activities.

3. If the Legal and Technical Commission considers the amount proposed inadequate, it will so notify the applicant who should then submit a new proposal adjusting the earlier amount with a view to fully satisfying the provisions of paragraph 1 of this regulation.

This regulation, its sponsor said, would provide the Secretary-General with the financial resources to exercise his legal powers.

While one delegation gave its immediate support to this proposal, several others felt that they needed to examine it more closely and possibly consult with their governments. Some expressed initial doubts, saying that such a concept was not included in the 1982 United Nations Convention on the Law of the Sea. They also felt that the proposed standard clauses for exploration contracts, to be annexed to the draft regulations, dealt adequately with that issue in a section on responsibility and liability of contractors, as well as in the requirement that contractors maintain insurance policies with internationally recognized carriers, in accordance with generally accepted international maritime practice.

Coastal State Rights

Regulation 34, on the rights of coastal States, provides that the regulations would not affect the rights of those States "to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat thereof or from other hazardous occurrences resulting from or caused by" seabed activities. It would permit a coastal State to notify the Authority's Secretary- General whenever it had grounds for believing that such activities by a contractor were likely to cause "serious harm" to its marine environment. After allowing a reasonable time for comments by the contractor and its sponsoring State, and if there were "clear grounds for believing that serious harm to the environment is likely to occur", the Secretary-General could take the actions provided for in regulation 33.

This afternoon's discussion focused on whether the second half of that regulation, outlining procedures to be followed by coastal States and the Secretary- General, should be amended, linked to regulation 33 or omitted altogether, without diminishing the right of coastal States to have their substantive complaints against contractors and sponsoring States followed to a conclusion. Differing views were expressed on how to link the regulation with articles of the Law of the Sea Convention other than article 142, on the rights and legitimate interests of coastal States in respect of seabed activities.

One speaker urged the relevance of article 221 of the Convention, covering measures to avoid pollution arising from marine casualties. He observed that it recognized the right of coastal States to do more than just comment on harmful effects on their marine environment caused by the activities of seabed contractors.

Archaeological and Historical Objects

Regulation 35, on archaeological or historical objects, would require contractors to notify the Secretary-General whenever they found such an object in the area allotted to them for exploration. He, in turn, would inform the United Nations Educational, Scientific and Cultural Organization (UNESCO). Contractors would have to "take all reasonable measures to avoid disturbing such object".

In the discussion, one member felt that the phrase "avoid disturbing" was not clear and might raise complex legal questions in the future. Another called for the regulation to be changed to read "measures to protect such object" in keeping with article 303 of the Convention, dealing with archaeological and historical objects found at sea. However, other delegations were of the view that the protection of archaeological objects was too heavy an obligation to place on a contractor; they felt that regulation 35 properly reflected the work of UNESCO on underwater cultural heritage.

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