Nivedita Saxena, Research Associate
The oceans had long been subject to the freedom of the seas doctrine – a principle put forth in the seventeenth century essentially limiting national rights and jurisdiction over the oceans to a narrow belt of sea surrounding a nation’s coastline. The remainder of the seas was proclaimed to be free to all and belonging to none. While this situation prevailed into the twentieth century, by mid-century there was an impetus to extend national claims over offshore resources ((According to The United Nations Convention on the Law of the Sea: A Historical Perspective, prepared for the International Year of the Ocean, 1998, Available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#Historical Perspective, Last visited on 14th November 2013)). Consequently the oceans have been exploited for various resources through activities like fishing & mining. The potential impacts of such activities on the marine environment are removal of organisms and their habitats and may result in harm to adjacent communities. The need was felt for the beneficial utilisation of the ocean resources for the humankind in general.
International Seabed Authority
The International Seabed Authority is an autonomous international organization established by article 156 ((Article 156 of the Convention.))of the 1982 United Nations Convention on the Law of the Sea ((Available online at http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf, last visited on 14th November 2013.))[hereafter ‘the convention’] and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea [hereafter ‘the agreement’] ((Available online at http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindxAgree.htm, last visited on 14th November 2013.)). In accordance with article 157 ((Article 157 of the Convention. 1. The Authority is the organization through which States Parties shall, in accordance with this Part, organize and control activities in the Area, particularly with a view to administering the resources of the Area.))of the Convention and section 1, paragraph 1 ((“1. The International Seabed Authority (hereinafter referred to as “the Authority”) is the organization through which States Parties to the Convention shall, in accordance with the regime for the Area established in Part XI and this Agreement, organize and control activities in the Area, particularly with a view to administering the resources of the Area. The powers and functions of the Authority shall be those expressly conferred upon it by the Convention. The Authority shall have such incidental powers, consistent with the Convention, as are implicit in, and necessary for, the exercise of those powers and functions with respect to activities in the Area.”)), of the annex to the agreement, the Authority is the organisation through which states parties to the convention shall, in accordance with the regime for the International Seabed Area established in Part XI of the convention and the agreement, organise and control activities in the area, particularly with a view to administering the resources of the area ((International Seabed Authority: Handbook 2013, published by The International Seabed Authority, Available online at http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindxAgree.htm, Last visited on 14th November 2013)). The Authority which has its headquarters in Kingston, Jamaica, came into existence on 16 November 1994, upon the entry into force of the 1982 Convention ((In accordance with the information available at http://www.isa.org.jm/en/about, Last visited on 14th November 2013)).
As at 13th August 2013, there are one hundred and sixty six (166) members of the Authority, including India ((In accordance with the information available at http://www.isa.org.jm/en/about/members/states, Last visited on 14th November 2013. See also, For a detailed analysis of the membership of the Authority, Assembly and Council along with statistics on regional representation refer to International Seabed Authority: Handbook 2013, published by The International Seabed Authority, Available online at http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindxAgree.htm, Last visited on 14th November 2013)). Pursuant to article 156, paragraph 2 ((Ibid n.1)), all states parties to the Convention are ipso facto members of the Authority.
The international seabed area, the part under ISA jurisdiction, is defined as “the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction ((Article 1(1) (1) of the Convention.)).” The United Convention of the Law of the Sea outlines the areas of national jurisdiction as a twelve-nautical-mile territorial sea ((Article 3 of the Convention)); an exclusive economic zone of up to 200 nautical miles ((Article 57 of the Convention))and a continental shelf. The international seabed area beyond national jurisdiction has been declared the Common Heritage of Mankind ((Article 136 of the Convention, As also declared by the General Assembly of the United Nations in resolution 2749 (XXV) of 17th December 1970, Available at http://www.un.org/documents/ga/res/25/ares25.htm, Last visited on 14th November 2013)). The mineral resources of the Common Heritage are administered by the International Seabed Authority.
Organs of the Authority
Its organs include the Assembly, the Council and the Secretariat. In addition, the authority has two subsidiary organs, the Legal and Technical Commission and the Finance Commission.
The Assembly sets policies and reviews the work of the Authority and is made up of all the members of the Authority. Each member has one representative in the Assembly, who may be accompanied by alternated and advisers ((Article 159 of the Convention.)). It is to be considered as the supreme organ of the Authority to which other principal organs shall be accountable ((Article 160 of the Convention)). The President of the Assembly is elected at the commencement of each regular session and shall hold office until a new President is elected at the next regular session. The assembly also elects four Vice-Presidents.
The Council is the executive organ ((Article 162 (1) of the Convention.))which establishes policies and approves applications for exploration/exploitation rights. 36 members ((Article 161 of the Convention.))are elected to the Council by the Assembly for rotating four-year term, according to a formula intended to ensure the representation of all geographical blocs as well as groups with special economic interests affected by seabed mining. The President and the four Vice- President of the council are elected in a manner likewise to those of the Assembly.
The Legal and Technical Commission (LTC) consists of 25 members elected by the ISA Council for a period of 5 years on the basis of personal qualifications relevant to the exploration, exploitation and processing of mineral resources, oceanography, economic and/or legal matters relating to ocean mining and related fields. Its main functions include reviewing applications for plans of work, supervising exploration or mining activities, assessing the environmental impact of such activities and providing advice to the International Seabed Authority’s Assembly and Council. At its 17th Session in 2011, the Council elected new members for a 5 year term beginning 1 January 2012 – 31 December 2016 including Maruthadu Sudhakar from India ((In accordance with the information available on http://www.isa.org.jm/en/about/members/legal, last visited on 14th November 2013.)).
The Finance Committee oversees the financing and financial management of the Authority. The Committee consists of 15 members elected by the Assembly for a period of 5 years taking into account equitable geographical distribution among regional groups and representation of special interests and has a central role in the administration of the Authority’s financial and budgetary arrangements. These experts are to serve in their individual capacity. The Finance Committee meets during the annual session of the Authority and tables its report on the budget of the Authority to the Assembly. At its 17th Session, new members were elected for a five year term of office from 1st January 2012 to 31st December 2016, including Vishnu Datt Sharma from India ((In accordance with information available on http://www.isa.org.jm/en/about/members/finance, last visited on 14th November 2013.)).
The Secretariat of the Authority comprises of a Secretary- General, who is the Chief administrative officer of the Authority, and the staff required by the Authority. The Secretary- General is elected for four years by the Assembly from among the candidates proposed by the Council and may be re-elected ((Article 166 of the Convention.)). The Secretariat is organised into four functional units:
- Office of the Secretary General
- Office of Resources and Environmental Monitoring
- Office of Legal Affairs
- Office of Administration and Management
Additional functions of the Authority
The powers and functions of the Assembly have been broadly defined in the convention. In addition to its core responsibilities, the Authority has a general responsibility to promote and encourage the conduct of marine scientific research in the Area, and to coordinate and disseminate the results of such research and analysis, when available, with particular emphasis on research related to the environmental impact of activities in the Area. The Authority may carry out marine scientific research relating to the Area and its mineral resources and enter into contracts for that purpose ((Article 143, paragraph 2, of the Convention; Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, annex, section 1(5) (h). Under article 256 of the Convention, all States, irrespective of geographical location, and competent international organizations, are entitled to carry out marine scientific research in the Area.)). Furthermore, States parties to the Convention are required to promote ((Article 143 paragraph 3, of the Convention))international cooperation in marine scientific research by, inter alia, participating in international research programmes and ensuring that programmes are developed through the Authority for the benefit of developing States and technologically less developed States, with a view to strengthening their research capabilities, training their personnel and fostering the employment of their qualified personnel ((Report of the Secretary- General of the International Seabed Authority under Article 166, paragraph 4, of the United Nations Convention on the Law of the Sea, submitted to the Assembly at the Nineteenth session held at Kingston, Jamaica during 15th – 26th July 2013, Available at http://www.isa.org.jm/files/documents/EN/19Sess/Assembly/ISBA-19A-2.pdf, Last visited on 14th November 2013)).
Endowment fund for Marine Scientific Research in the Area
The assembly established the Endowment Fund for Marine Scientific Research in the Area in 2006.The ISA Endowment Fund promotes collaborative marine scientific research in the international seabed area for the benefit of humankind as a whole, by supporting the qualified scientists and technical personnel from developing countries in marine scientific research programmes and by providing opportunities for these scientists to participate in relevant initiatives. The fund is administered by the secretariat. Members of the Authority, other states, relevant international organisations, academic, scientific and technical institutions, philanthropic organisations and private persons may make contributions to the Fund. Applications for assistance from the Fund may be made by any developing country or by any other country, if the purpose of the grant is to benefit scientists from developing countries. An advisory panel appointed by the Secretary-General evaluates applications for assistance from the Fund and makes recommendations to the Secretary-General. The panel is composed of permanent representatives to the Authority, representatives of educational institutions or international organizations and individuals closely associated with the work of the Authority, and members are appointed with due regard to equitable geographic representation. To date, a total of $398,879 has been disbursed from the interest accrued on the capital in the form of awards for projects (( In accordance with the data provided in Report of the Secretary- General of the International Seabed Authority under Article 166, paragraph 4, of the United Nations Convention on the Law of the Sea, submitted to the Assembly at the Nineteenth session held at Kingston, Jamaica during 15th – 26th July 2013, Available at http://www.isa.org.jm/files/documents/EN/19Sess/Assembly/ISBA-19A-2.pdf, Last visited on 14th November 2013))(( As at the end of April 2013, the capital of the Fund stood at $3,387,038.)).
Among the main accomplishments of the authority is the adoption of a “Mining Code”, a comprehensive set of rules, regulations and procedures issued to regulate prospecting and exploration of marine minerals in the Area. It includes the regulation on Prospecting and Exploration for Polymetallic Nodules in the Area, adopted in 2000; the Regulation on Prospecting and Exploration for Polymetallic Sulphides in the Area, adopted in 2010; and the Regulations on Prospecting and Exploration for Cobalt-Rich Crusts, adopted in 2012. These regulations enable the Authority to sign contracts for exploration with investors ((Pamphlet issued at the 30th anniversary of The United Nations Convention on the La of the Sea: UNCLOS at 30, Available at http://www.un.org/Depts/los/convention_agreements/pamphlet_unclos_at_30.pdf, last visited on 14th November 2013.)).