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Seminar on Conservation and Sustainable Use of Marine Biodiversity Beyond National Jurisdiction

Seminar on Conservation and Sustainable Use of Marine Biodiversity Beyond National Jurisdiction. Federal Agency for W Nature Conservation. Duncan Currie LL.B. (Hons.) LL.M. 2 December 2011. Presentation III: Broadening the mandate of ISA

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Seminar on Conservation and Sustainable Use of Marine Biodiversity Beyond National Jurisdiction

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  1. Seminar on Conservation and Sustainable Use ofMarine Biodiversity Beyond National Jurisdiction Federal Agency for W Nature Conservation Duncan Currie LL.B. (Hons.) LL.M.2 December 2011 Presentation III: Broadening the mandate of ISA Existing 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?

  2. Common Heritage of Mankind • 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 .

  3. Common Heritage of Mankind • Amb. Arvid Pardo 1967 to UNGA: • 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. • 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. • Establish what later became the ISA • 1970: UNGA Resolution 2749 XXV

  4. Common Heritage of Mankind • 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)

  5. Common Heritage of Mankind • 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)

  6. Common Heritage of Mankind

  7. Common Heritage of MankindBenefit sharing 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)

  8. Mandate of ISA • Established 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.

  9. ISA Mandate .

  10. ISA Mandate for Environmental Protection .

  11. ISA Other Competences • UNESCO 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.

  12. ISA Structure and Organs Assembly (159), Council (161), Legal and Technical Commission (165) Secretariat (166) +(now) Finance Cttee Budget: $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)

  13. Assembly • All LOSC Parties • Elects Council, others • Sets budget, financial contribution rates • Approves rules, regulations, procedures adopted by Council

  14. Council Clearly Unsuitable for MGRs Executive organ 36 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 seabed • 4 major exporters of minerals • 6 developing with special interests (large populations, landlocked, island, major importers, potential producers, LDCs) • 18 elected to ensure geographical balance • Operates by consensus; can be 2/3 voting on substance

  15. ISA Substantive Work • Regulations 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.

  16. ISA and Environmental Protection Polymetallic Nodules regulations • Precautionary approach required • Contractors must: • take necessary measures to prevent/control/reduce pollution • Gather baseline data • Monitor, report • Set aside impact reference zones, preservation reference zones • Secretary-General may issue emergency orders

  17. ISA and Environmental Protection Polymetallic Nodules regulations • Regulation of prospecting: • Only after notification • No prospecting ifrisk 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 annually • Must notify incidents of serious harm to marine envt

  18. ISA and Environmental Protection • 2002 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

  19. ISA and Environmental Protection • Legal and Technical Commission proposed Environmental Management Plan for the Clarion-Clipperton zone in July 2011: Guiding principles • Common heritage of mankind • Precautionary approach • Protection and preservation of marine envt • Prior environmental impact assessment • Conservation and sustainable use of biodiversity • Transparency • Proposed areas of particular environmental interest But difficulties adopting EMP. Council agreed to further workshop.

  20. ISA and Environmental Protection • Draft guidelines for the assessment of the environmental impacts from exploration for: • polymetallic nodules (China, 1998). • polymetallic sulphides and cobalt-rich ferromanganese crusts (2004).

  21. ISA and Marine Scientific Research • Secretariat 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 resource • Includes seabed patents, library, bibliographic database, GIS maps • ISA holds workshops, seminars

  22. 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

  23. ISA and Marine Scientific Research: Exploration • Contractors 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

  24. Marine Scientific Research

  25. Marine Scientific Research

  26. Marine Scientific Research

  27. Sedentary Species .

  28. Sedentary Species • 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? .

  29. If incorporating MGRs into Part XI • Area 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. …

  30. 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?

  31. So – if re-mandating ISA • Need additional mandate for ISA • Need to add a new “Part XI” as a new mandate for ISA to avoid unintended consequences • Possibly add new organ similar to the Enterprise to carry out MGR exploitation activities, alone or as joint ventures

  32. So – if mandating ISA for MGR • A clear mandate: Effectively using ISA facilities. • Assembly can remain the same – all Parties • Need a new Council • Could use the same Secretariat • Finance Committee, Legal and Technical Committee , Assembly,– revise rules of procedure • New regulations, rules over other activities that could impact MGR and biodiversity, etc • Scope of mandate: would it encompass prospecting, recovery of MGRs. EIAs etc. Protect MGRs – from what? Mining? Fishing? Pollution? • Would be limited to sedentary species?

  33. Art 82 as a benefit sharing template?

  34. Art 82 as a benefit sharing template? • 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

  35. Art 82 as a benefit sharing template? • 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

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