INTERNATIONAL SEABED AUTHORITY MOVES TOWARDS CODE FOR SEABED NODULES; RE-ELECTS SATYA NANDAN AS SECRETARY-GENERAL
Press Release
SEA/1671
INTERNATIONAL SEABED AUTHORITY MOVES TOWARDS CODE FOR SEABED NODULES; RE-ELECTS SATYA NANDAN AS SECRETARY-GENERAL
20000403 biographical note(Received from the International Seabed Authority.)
KINGSTON, 31 March -- Conflicting views on confidentiality of information and environmental protection slowed work on the draft mining code, as the International Seabed Authority held the first part of its sixth session in Kingston, Jamaica from 20 to 31 March.
The 36-member Council of the Authority, which met for most of the two weeks in informal consultations to consider the code, produced a redraft of the text, known formally as regulations for prospecting and exploration of polymetallic nodules in the international seabed area. This paper will form the basis of further negotiations when the Authority resumes its session in Kingston from 3 to 14 July.
The Assembly of the Authority, which also met during the two-week session, re-elected Satya N. Nandan for a second four-year term as Secretary-General of the Authority. It acted by acclamation on the closing day of the session following a recommendation by the Council on 28 March. Mr. Nandan represented Fiji at the Third United Nations Conference on the Law of the Sea and was Special Representative of the United Nations Secretary-General for the Law of the Sea from 1983 to 1992. Initially elected in March 1996, he is the Authoritys first Secretary-General.
The Assembly, without objection, also approved financial regulations governing the use of the Authoritys funds.
Draft Mining Code
The Council devoted nine of the 10 working days of the session to a review, at informal meetings, of unresolved issues relating to the draft regulations on prospecting and exploration for polymetallic nodules in the international seabed area. During the first week, it held an exchange of views on the main issues not yet settled. Then, it spent most of the second week in a detailed examination of the text, seeking a convergence of disparate views.
The result was a further revision of the complete text, prepared by the secretariat together with the Council President in light of the discussions. In his statement to the Assembly on the Councils work (ISBA/6/C/3), the President
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said: The Council agreed to continue its discussions on the draft, together with other outstanding issues in relation to the draft regulations, during the second part of the session, in July.
Assessing the results so far, Secretary-General Nandan saw substantial progress towards resolving remaining issues. However, some delegations voiced disappointment that more results had not been achieved.
Provisions revised as a result of the Councils discussions related mainly to three topics: environmental protection, safeguarding of confidential information provided to the Authority by seabed contractors; and types of information required from contractors.
These points cover most of the contentious issues still facing the Council as it seeks to complete work on draft regulations that will govern the exploratory phase leading to mining of mineral-rich deposits on the deep seabed in ocean areas beyond the jurisdiction of any State. The Council has been working on this text since 1998, and last August it set the goal of completing the draft by the end of this years session in July.
The purpose of the text is to set out the conditions under which States and other entities will contract with the Authority to explore for polymetallic nodules, rich in manganese, nickel, cobalt and copper. This is the first instalment of a mining code that will one day extend to exploitation of all seabed minerals. Most known deposits of these nodules are in the Central Pacific Ocean, with more limited occurrences in parts of the Indian Ocean.
The regulations will flesh out seabed mining provisions in the 1982 United Nations Convention on the Law of the Sea, as refined by the 1994 Agreement relating to the Implementation of Part XI (seabed) of the Convention. These treaties establish a system, under the Authoritys control, for resource exploitation in the area by States, corporations and international consortia.
During its informal consultations, the Council sought compromises between opposing views about the three main topics.
On environmental protection, some sought adherence by contractors to the precautionary principle. This is defined in the 1998 draft to mean 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. Some delegations did not agree that this principle was an accepted part of international law.
On data confidentiality, one view stressed the need to ensure the secrecy of information that can be of commercial value, while others wanted to limit the period during which such material had to remain confidential. Several participants sought to strengthen procedures within the Authority to avoid leaks, and to give contractors a legal recourse to block releases that might
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harm them economically. Others stressed the need to balance confidentiality with concern for protecting the marine environment and the common heritage.
Some participants sought to limit the types of information contractors would be required to submit to the Authority in annual reports and at the termination of contracts. They especially wanted to limit this to information the Authority needed to carry out its control functions.
The revised text dealt with most of these issues.
With regard to contracts for exploration, regulation 27, on training, has a new paragraph stating that, for pioneer investors already registered by the Authority, the contract shall take account of training they have already provided. (The Convention obliges contractors to establish training programmes for nationals of developing countries and staff of the Authority.)
Regulation 28, on periodic review of implementation of contractors programmes of work, has an added sentence concerning the Secretary-Generals reports on his reviews, stating that the reports shall indicate whether account has been taken of observations by States about contractors compliance with their environmental obligations. The new text omits a sentence stating that adjustments in a work programme must be agreed between the contractor and the Secretary-General and be approved by the Council. (These reviews are to take place every five years.)
Regulation 30, on responsibility and liability of contractors and the Authority, has been shortened to state that responsibility and liability shall be in accordance with the Convention. The regulation retains a sentence providing for a contractors continuing liability for any damage arising out of wrongful acts in the conduct of its operations, including damage to the marine environment, after exploration is complete.
A regulation on the application to contractors of national laws and regulations has been removed.
With regard to protection and preservation of the marine environment, regulation 31 now calls for a precautionary approach rather than precautionary measures by the Authority and contractors. For contractors, the aim would be to prevent, reduce and control pollution and other hazards to the marine environment arising from their activities, rather than to anticipate, prevent or minimize adverse impacts. A definition of precautionary measures was removed from regulation 1, on the use of terms and scope of the regulations.
Regulation 32, on emergency orders by the Authority in the event of environmental incidents, contains new clauses on the Secretary-Generals reporting functions. Besides his initial report on such incidents to the Council and the Legal and Technical Commission, he would monitor and report on developments. Copies of his reports are to go not only to Authority members but also to subregional, regional and global bodies.
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Chile, in the only formal amendment circulated during the session (ISBA/6/C/L.3), proposed a new regulation requiring all contract applicants to provide an environmental surety, in an amount assessed by the Legal and Technical Commission. These funds would enable the Authority to take emergency measures when a contractor did not act promptly.
Regulation 33, on the rights of coastal States, omits language that would have explicitly authorized 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 any activities in the international seabed area. Instead, it says simply that nothing in the regulations shall affect the rights of coastal States in accordance with the Convention (which spells out such rights in similar language). An additional sentence gives contractors and their sponsoring States the right to submit observations whenever a coastal State charges them with causing serious environmental harm.
The provisions relating to confidentiality of data and information provided by contractors to the Authority have been expanded from one regulation to two. Regulation 35, on proprietary data and information, rewords clauses on the circumstances under which such material must be considered confidential. Instead of material identified by the contractor as confidential, the provision applies to material so designated by the contractor, in consultation with the Secretary-General. The phrase referring to material of a commercial value is omitted. Material necessary for the Authoritys formulation of environmental regulations, other than equipment design, shall not be deemed proprietary.
A new paragraph provides:
Confidential data and information may only be used by the Secretary- General and staff of the Authority and the Legal and Technical Commission as necessary for and relevant to the effective exercise of their powers and functions. The Secretary-General shall authorize access to such data and information only for limited use in connection with the functions and duties of the staff of the Secretariat and the Legal and Technical Commission.
The new text elaborates on the period during which material is to remain confidential. Instead of automatic declassification 10 years after the exploration contract expires, the revision provides for a review by the Secretary-General and the contractor 10 years after the material is submitted or on expiration of the contract, whichever is later, and every five years thereafter. Confidentiality would remain if the contractor establishes that its release would entail a substantial risk of serious and unfair economic prejudice. Nothing would be released until the contractor had a reasonable opportunity to exhaust judicial remedies. The contractor could waive confidentiality at any time.
Regulation 36, on procedures to ensure confidentiality, explicitly extends such procedures to members of the secretariat and of the Legal and Technical
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Commission, and anyone else participating in the Authoritys activity or programme. A new paragraph states that persons authorized to have access to such material shall not disclose it except as permitted under the Convention and regulations. Also, they must make a written declaration acknowledging their legal obligation of non-disclosure and agreeing to comply with confidentiality regulations and procedures. Another new paragraph authorizes action by the Authority against any person who violates these obligations.
Two sections of annex 4 of the regulations, which sets out the standard clauses for exploration contracts, have also been altered in the new text.
Section 10 lists the kinds of information to be included in the annual reports by contractors to the Secretary-General while conducting activities in the area. It now requires the reports to contain information in sufficient detail on the exploration work, rather than details of all such work. A phrase specifies that contractors are not obliged to submit information on equipment design data. An estimation of mineable areas, including mining conditions and the grade and quantity of reserves, would be required only on termination of the contract instead of in the annual reports. Rather than additional reports, contractors would have to submit additional information to supplement their reports if requested by the Secretary-General.
Section 11 describes the data and information to be submitted at the end of the contract period. It now specifies that contractors should submit copies of geological, environmental, geochemical and geophysical data, and of geological, technical, financial and economic reports, that are necessary for and relevant to the effective exercise of the powers and functions of the Authority in respect of the exploration area. The earlier version called for all such data and reports to be submitted, without this qualification. In place of a call for details of exploration equipment, the new version speaks of information in sufficient detail, including the results of technological tests, but not design data. Contractors would no longer be required to submit a representative portion of nodule samples.
Elections
The Assembly, in uncontested elections on 23 March, filled vacancies in two bodies of the Authority.
To the Council, it elected Malta to fill for the rest of this year a vacant seat allocated to a Western European member of Group E, the 18 States chosen for the Council to balance its geographical distribution. The vacancy arose on 1 January when Italy, elected last August to replace the United States in Group A (major consumers or importers of land-based sources of seabed minerals), departed Group E for Group A. (The Council membership is chosen from four special interest groups and a fifth group for geographical balance. Half of the seats will be up for election in July, for a four-year term beginning next year.)
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To the 15-member Finance Committee, the Assembly elected Boris G. Idrisov from the Russian Federation (biographical data in ISBA/6/A/1) to replace his compatriot Sergei P. Ivanov, who resigned effective 11 February 2000. The new member will fill out a term that ends on 31 December 2001.
The Council, on 22 March, elected international law professor Frida María Armas Pfirter, from Argentina, to the Legal and Technical Commission, increasing its membership to 23. The Council had agreed last August to a proposal by the Group of Latin American and Caribbean States that that Group could propose this year a candidate for the rest of the current term of office of the Commissions members. However, this would be without prejudice to future elections to the Commission or future decisions about the number of its members. Members serve in their personal capacity, normally for a five-year term. The current term of all members expires in 2001.
The Assembly and Council, again without contest, elected their presidents and vice-presidents for 2000. For the Assembly, Liesbeth Lijnzaad, Deputy Head of the International Law Division of the Netherlands Ministry of Foreign Affairs, was chosen on 20 March. For the Council, Sakiusa A. Rabuka, Legal Counsellor to the Ministry of Foreign Affairs of Fiji, was elected on 22 March (biographical notes in Press Release SEA/1657 and SEA/1662, respectively). Vice-Presidents elected for the Assembly are the Czech Republic, India, Jamaica and Namibia; and for the Council, Italy, Jamaica, Poland and the Sudan.
Financial Regulations
The Assembly gave final approval to the Financial Regulations of the Authority on 23 March (ISBA/6/A/3). They cover the handling of the Authoritys funds from budgetary preparation by the Secretary-General through examination and approval by the Finance Committee, the Council and Assembly, and on to the management and auditing of expenditures.
The 14 regulations 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. Within the biennial budget period, the Assembly is to vote appropriations annually. Assembly or Council decisions with financial or budgetary implications must also be based on Finance Committee recommendations.
According to the regulations, administrative expenditures are to be met from a general administrative fund, backed up by a working capital fund to finance appropriations until income is available. Most of this money comes from the contributions of member States, as defined in a scale of assessments based on the United Nations scale, with ceiling and floor (maximum and minimum) rates set by the Authority. Other income may derive from such future sources as the Enterprise, the seabed-mining arm envisaged for the Authority.
Funds are kept in banks designated by the Secretary-General, who must report thereon to the Council from time to time. The Finance Committee must be
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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 Committees recommendation. The Secretary-General is enjoined to put in place specified internal controls and to submit accounts for audit by an independent auditor appointed by the Assembly.
The regulations have been in effect provisionally since last August, when the Council adopted them subject to final Assembly action. The Finance Committee had worked out the original text in 1997 and 1998. The Council introduced several changes and produced the version that the Assembly approved without further alteration.
Agenda
On the opening day, the Assembly adopted a 15-item agenda (ISBA/6/A/2), while the Council adopted an agenda containing 14 points (ISBA/6/C/1). Most of the substantive items were scheduled for the second half of the session, in July, so that the Council could concentrate on the mining exploration code, a priority established last August. On 28 March, the Council decided without objection to defer to July its consideration of two remaining rules of procedure of the Legal and Technical Commission, pertaining to circumstances in which that body might hold public meetings and in which States might be represented at meetings.
Among the other items scheduled for July are the annual report of the Secretary-General, the Authoritys budget and the scale of assessments of budget contributions by member States, appointment of an auditor, staff regulations and the date of the next session.
Members and Attendance
The Authority currently has 132 members, of which 73 were recorded as having submitted credentials, formal or otherwise, at the March meetings. The names were recorded by the Credentials Committee, 57 of them in its first report on 23 March (ISBA/6/A/4), with additions announced at the closing meeting of the Assembly. 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, *Côte dIvoire, Croatia, *Cuba, Cyprus, *Czech Republic, *Democratic Republic of the Congo, Djibouti, Dominica, *Egypt, Equatorial Guinea, *European Community, *Federated States of Micronesia, *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 Peoples Democratic Republic,
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Lebanon, *Malaysia, Mali, *Malta, *Marshall Islands, Mauritania, Mauritius, *Mexico, 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, *Solomon Islands, Somalia, *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, *Vanuatu, Viet Nam, Yemen, Yugoslavia, *Zambia and Zimbabwe.
Several observers from States not members of the Authority also attended and took part in the Councils consultations.
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