Seminar on Conservation and Sustainable Use ofMarine Biodiversity Beyond National Jurisdiction

Duncan Currie LL.B. (Hons.) LL.M.2 December 2011

Presentation III: Broadening the mandate of ISAExisting ISA mandates not related to mineral resources (marine environmental protection, scientific research)

Article 82 UNCLOS as an inspiration for a benefit sharing concept for MGR?

Federal Agency for W Nature Conservation

Common Heritage of Mankind.

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President Lyndon Johnson 1966“We must be careful to avoid a race to grab and to hold the lands under the high seas. We must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings.” Lyndon B. Johnson at the commissioning of a ship Oceanographer, July 13, 1966

Common Heritage of MankindAmb. Arvid Pardo 1967 to UNGA:

1. The sea-bed and the ocean floor are a common heritage of mankind and should be used and exploited for peaceful purposes and for the exclusive benefit of mankind as a whole. The needs of poor countries should receive preferential consideration in the event of financial benefits being derived from the exploitation of the sea-bed and ocean floor for commercial purposes.

2. Claims to sovereignty over the sea-bed and ocean floor beyond present national jurisdiction, as presently claimed, should be frozen until a clear definition of the continental shelf is formulated.

3. Establish what later became the ISA• 1970: UNGA Resolution 2749 XXV

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Common Heritage of Mankind

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• No sovereignty over Area or resources, no appropriation, rights vested in (hu)mankind as a whole (Art 137)

• Common management, benefit sharing (Art 150)

Plus:• use for peaceful purposes (Arts

141/138)

Common Heritage of Mankind

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1994 Implementing Agreement• Changed the technology transfer and benefit sharing

provisions. • The financial provisions fixed in the LOSC replaced

with financial provisions to be negotiated based on prevailing land based mining rates (Sec 8)

• Voting: US guaranteed seat on Council, when it ratifies (Sec 3 para 15); blocs can block vote (Sec 3 para 5)

• Established Finance Committee• Mandatory transfer of technology provisions replaced

the 1982 Agreement provisions with cooperation requirements. (Sec 5)

• No obligation go fund a mine site for Enterprise (Sec 2 para 3)

Common Heritage of Mankind

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UNCLOS Comment

Art 140: Benefit of mankind 1. Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status recognized by the United Nations in accordance with General Assembly resolution 1514 (XV) and other relevant General Assembly resolutions.2. The Authority shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism on a non-discriminatory basis, in accordance with article 160, paragraph 2 (f) (i).

All activities or restricted to mining?Nb Art 1:(3) "activities in the Area" means all activities of exploration for, and exploitation of, the resources of the Area;

Common Heritage of MankindBenefit sharing

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Art 160(f)(i) Powers and Functions• Council has to recommend, and Assembly adopt,

the equitable sharing criteria- for sharing benefits, and art 82 contributions – “taking into particular consideration the interests and needs of developing States and peoples who have not attained full independence or other self-governing status.”

Should take into recommendations of Finance Committee (Sec 9 – para 7(f) 1994 Agt)

And prioritise least developed and landlocked (art 82.4)

Mandate of ISAEstablished in 1994, pursuant to Part XI of

UNCLOS, Annexes III and IV, the 1994 Implementation Agreement and Resolutions I and II of the Third United Nations Conference on the Law of the Sea.

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ISA Mandate.

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UNCLOSArt 133 USE OF TERMS For the purposes of this Part:(a) "resources" means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules;(b) resources, when recovered from the Area, are referred to as "minerals".

Art 1(1) "Area" means the sea-bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction;(2) "Authority" means the International Sea-Bed Authority;(3) "activities in the Area" means all activities of exploration for, and exploitation of, the resources of the Area.

ISA Mandate for Environmental Protection.

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UNCLOS: Art 145 PROTECTION OF THE MARINE ENVIRONMENT Necessary measures shall be taken in accordance with this Convention with respect to activities in the Area to ensure effective protection for the marine environment from harmful effects which may arise from such activities. To this end the Authority shall adopt appropriate rules, regulations and procedures for inter alia:(a)the prevention, reduction and control of pollution and

other hazards to the marine environment, …(b) the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment.Art 1: (3) "activities in the Area" means all activities of exploration for, and exploitation of, the resources of the Area;ARTICLE 133 USE OF TERMS For the purposes of this Part: (a) "resources" means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules; (b) resources, when recovered from the Area, are referred to as "minerals“.

ISA Other CompetencesUNESCO Convention on the Protection of

Underwater Cultural Heritage 2 November 2001 Art 12” prospectors are to notify ISA S/G of activities related to underwater cultural matters.

Polymetallic Nodules Regulations regulation 8: must notify S/G of archeological or historical objects.

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ISA Structure and OrgansAssembly (159), Council (161), Legal and Technical Commission (165) Secretariat (166) +(now) Finance CtteeBudget: $6.3 million (2010)The Enterprise (158): direct functions 150(2)(a) and transport/processing/marketing of minerals (170(1))Enterprise is run by secretariat (1994 Agt Section 2) until independent.Conducts initial activities via joint ventures (1994: sec 2)

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AssemblyAll LOSC PartiesElects Council, othersSets budget, financial contribution ratesApproves rules, regulations, procedures

adopted by Council

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CouncilExecutive organ36 elected members as follows: (1994 Agt Sec. 3 para. 15/cf art 161(1)(a)))4 major consuming States (incl State with

largest GDP)4 with largest investments in seabed4 major exporters of minerals6 developing with special interests (large

populations, landlocked, island, major importers, potential producers, LDCs)

18 elected to ensure geographical balanceOperates by consensus; can be 2/3 voting on

substance

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Clearly Unsuitable for MGRs

ISA Substantive WorkRegulations on :

Prospecting and Exploration for Polymetallic Nodules in the Area –ISBA/6/A/18

Prospecting and Exploration for Polymetallic Sulphides– adopted 2010 - ISBA/16/C/L.5

Prospecting and Exploration for Cobalt-Rich Crusts – under development.

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ISA and Environmental ProtectionPolymetallic Nodules regulations

Precautionary approach requiredContractors must:

take necessary measures to prevent/control/reduce pollution

Gather baseline data Monitor, report Set aside impact reference zones, preservation

reference zonesSecretary-General may issue emergency orders

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ISA and Environmental ProtectionPolymetallic Nodules regulationsRegulation of prospecting:

Only after notificationNo prospecting if risk of serious harm to the marine

environment/ or areas where Council has disapproved due to risk of serious harm to marine envt

Confers no right to resources (may keep samples)Report annuallyMust notify incidents of serious harm to marine envt

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ISA and Environmental Protection2002 Recommendations for the guidance of the

contractors for the assessment of the possible environmental impacts arising from exploration for polymetallic nodules in the Area baseline data, environmental impact assessments,

monitoring.- Art 165(2)(e))– ISBA/7/LTC/1/Rev.1

Workshop on Environmental Management in Fiji 29 Nov-2 Dec

Nov 2010 workshop to develop  an Environmental Management Plan for the Clarion Clipperton Zone

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ISA and Environmental ProtectionLegal and Technical Commission proposed Environmental

Management Plan for the Clarion-Clipperton zone in July 2011: Guiding principlesCommon heritage of mankindPrecautionary approachProtection and preservation of marine envtPrior environmental impact assessmentConservation and sustainable use of biodiversityTransparencyProposed areas of particular environmental interestBut difficulties adopting EMP. Council agreed to

further workshop.

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ISA and Environmental ProtectionDraft guidelines for the assessment of

the environmental impacts from exploration for: polymetallic nodules (China, 1998). polymetallic sulphides and cobalt-

rich ferromanganese crusts (2004).

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ISA and Marine Scientific ResearchSecretariat carries out resource assessments of the areas

reserved; maintains a Database (POLYDAT) of data and information on the resources of Area. and monitors the current status of scientific knowledge of the deep sea marine environment in the Central Data Repository.

ISA has the responsibility to promote and encourage marine scientific research in the international seabed area and to disseminate the results of such research. (art 143.2)

Maintains Central Data Repository Holds public, private data on mineral resourceIncludes seabed patents, library, bibliographic database,

GIS mapsISA holds workshops, seminars

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ISA and Marine Scientific Research Polymetallic Nodules regs: 1(e) “prospecting” means the search for deposits of polymetallic nodules in the

Area, including estimation of the composition, sizes and distributions of polymetallic nodule deposits and their economic values, without any exclusive rights;

(b) “exploration” means searching for deposits of polymetallic nodules in the Area with exclusive rights, the analysis of such deposits, the testing of collecting systems and equipment, processing facilities and transportation systems, and the carrying out of studies of the environmental, technical, economic, commercial and other appropriate factors that must be taken into account in exploitation;

Annex III Art 2: b) Prospecting shall be conducted only after the Authority has received a satisfactory written undertaking that the proposed prospector will comply with this Convention and the relevant rules,, regs…

2. Prospecting shall not confer on the prospector any rights with respect to resources.

3. Exploration and exploitation shall be carried out only in areas specified in plans of work referred to in article 153, paragraph 3, and approved by the Authority in accordance with

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ISA and Marine Scientific Research: ExplorationContractors need contract before explore Area

(art 153(2)(b), (3))E.g. under Polymetallic Nodules Regulations: 8

contracts (entities sponsored by China, Japan, India, Korea, France, Russia, Germany, E. Europe)

Gives exclusive right to explore up to 150,000 sq km for 8 years (then 75k)

Must collect baseline data, monitor activities, prevent pollution while explore

Report annually

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Marine Scientific Research

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UNCLOS Comment

ARTICLE 241 NON-RECOGNITION OF MARINE SCIENTIFIC RESEARCH ACTIVITIES AS THE LEGAL BASIS FOR CLAIMS Marine scientific research activities shall not constitute the legal basis for any claim to any part of the marine environment or its resources.

Status of bioprospecting?nb Annex III (minerals)2. Prospecting shall not confer on the prospector any rights with respect to resources. A prospector may, however, recover a reasonable quantity of minerals to be used for testing.

Marine Scientific Research

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UNCLOS Comment

ARTICLE 143 MARINE SCIENTIFIC RESEARCH 1. Marine scientific research in the Area shall be

carried out exclusively for peaceful purposes and for the benefit of mankind as a whole in accordance with Part XIII.

2. The Authority may carry out marine scientific research concerning the Area and its resources, and may enter into contracts for that purpose. The Authority shall promote and encourage the conduct of marine scientific research in the Area, and shall co-ordinate and disseminate the results of such research and analysis when available.

3. States Parties may carry out marine scientific research in the Area.

4. States Parties shall promote international co-operation in marine scientific research in the Area by: […]

Do paras 2-3 define benefit of mankind as whole, or is there more to it?

Marine Scientific Research

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UNCLOS CommentARTICLE 256 MARINE SCIENTIFIC RESEARCH IN THE AREA All States, irrespective of their geographical location, and competent international organizations have the right, in conformity with the provisions of Part XI, to conduct marine scientific research in the Area.

Distinction between conformity with Part XI an the Convention as a whole?

ARTICLE 257 MARINE SCIENTIFIC RESEARCH IN THE WATER COLUMN BEYOND THE EXCLUSIVE ECONOMIC ZONE All States, irrespective of their geographical location, and competent international organizations have the right, in conformity with this Convention, to conduct marine scientific research in the water column beyond the limits of the exclusive economic zone.

Sedentary Species.

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UNCLOS CommentArticle 77 Rights of the Coastal State over the Continental Shelf 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.4. The natural resources referred to in this Part consist of the mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil.

‘this Part’ = Part VI Continental ShelfPredicated on ‘harvestable stage’Note: Art 145 in Part XI gives ISA Authority power to adopt rules for the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment.

Part V EEZ:Art 68 Sedentary Species This Part does not apply to sedentary species as defined in article 77, paragraph 4.

Sedentary Species.

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• UNCLOS does not define ‘fish’• 1995 Fish Stocks Agreement defines fish to include

molluscs and crustaceans except those belonging to sedentary species as defined in article 77 of the Convention. (art 1(1)(c)

• But many RFMOs do include sedentary: SPRFMO Art 1(1)(f) – except where subject to coastal State jurisdiction. SIOFA, SEAFO same. NEAFC, CCAMLR include all sedentary species.

• So sedentary species can be ‘fish’.• But: for MGR, value is in the genetic qualities, not the

object. The intellectual property – based partly on the resource, and partly on the technology applied - is the value.

• Nor is the genetic quality related to the sedentary or non-sedentary character.

• So: if ISA is to be given jurisdiction over MGR, should it cover MGR from fish in the water column?

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If incorporating MGRs into Part XIArea remains common heritage of mankind: Are MGRs

assimilated to ‘resources’?Art 136 “The Area and its resources are the common heritage

of mankind.”Art 137(2): . All rights in the resources of the Area are vested

in mankind as a whole on whose behalf the Authority shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with this Part and the rules, regulations and procedures of the Authority.

(3) No State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this Part. …

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If incorporating MGRs into Part XI Art 1:(a) "resources" means all solid, liquid or gaseous

mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules;

Art 133 USE OF TERMS For the purposes of this Part: (b) resources, when recovered from the Area, are referred

to as "minerals".Clearly Part XI drafted to address minerals. So probably

nonstarter?

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So – if re-mandating ISA Need additional mandate for ISANeed to add a new “Part XI” as a new mandate for ISA to

avoid unintended consequencesPossibly add new organ similar to the Enterprise to carry

out MGR exploitation activities, alone or as joint ventures

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So – if mandating ISA for MGRA clear mandate: Effectively using ISA facilities.Assembly can remain the same – all Parties Need a new CouncilCould use the same SecretariatFinance Committee, Legal and Technical Committee ,

Assembly,– revise rules of procedureNew regulations, rules over other activities that could

impact MGR and biodiversity, etcScope of mandate: would it encompass prospecting,

recovery of MGRs. EIAs etc. Protect MGRs – from what? Mining? Fishing? Pollution?

Would be limited to sedentary species?

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Art 82 as a benefit sharing template?

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UNCLOS CommentARTICLE 82 PAYMENTS AND CONTRIBUTIONS WITH RESPECT TO THE EXPLOITATION OF THE CONTINENTAL SHELF BEYOND 200 NAUTICAL MILES 1. The coastal State shall make

payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles ….

2. (payable after 1st 5 years: 1% of value or production, increasing by 1% p.a. to 7% max.).

4. The payments or contributions shall be made through the Authority, which shall distribute them to States Parties to this Convention, on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and the land-locked among them.

•Quid pro quo for OCS erosion of the Area•International royalty for resource within national jurisdiction•Estimated to start payments 2015•‘Non-living’ more than mineral – corals, rock.•Excludes living – despite inclusion in Art 77 (rights of coastal state over living and non-living resources)

Art 82 as a benefit sharing template?

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• The Council recommends to the Assembly the rules, regulations and procedures on the equitable sharing of financial and other economic benefits made by virtue of Article 82. Assembly agrees or refers back to Council (Art 162(2)(o)(i))

• Options: the development of a new distribution process within the ISA; using reputable existing international and regional mechanisms and linking with the Kyoto Protocol Adaptation Fund.

• Use human/development indices – UNDP, World Bank

A “Common Heritage Fund” was proposed, but not agreed, for Art 82

Art 82 as a benefit sharing template?

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• Shows flexibility in transboundary situations: possibility e.g. for MGRs from OCS, water column in EEZ

• Shows potential of ISA Council and Assembly to devise equitable sharing criteria

• Potential recourse to ITLOS (Seabed Disputes Chamber) to resolve disputes