Marine Geosciences

XI.- LAW OF THE SEA

(Poster 19)

The mineral resources of the deep seabed are essentially localized in the middle of the oceans, beyond the limits of national jurisdiction (territorial sea, continental shelf, and exclusive economic zone).

On the 29 April 1958, the President of the first Law of the Sea Conference (Geneva Convention) mentioned in his opening speech the concept of "Common Heritage of Mankind", when referring to deep seabed minerals.

In 1970, the General Assembly of the United Nations adopted a Declaration of Principles [General Assembly resolution 2749 (XXV)] declaring that “ The seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction … as well as the resources of the area are the common heritage of mankind ”.

In 1973, at the beginning of the Third United Nations Conference on Law of the Sea, more than half of the “Informal Composite Negotiating Text” text is dedicated to the management of the deep seabed mineral resources in the international Area beyond the limits of national jurisdiction. However, nine years of negotiations will be necessary to elaborate the provisions authorizing the exploration and exploitation of polymetallic nodules. In principle, the final text should have been agreed by consensus by the participants of the Conference.

However, in 1980, the government of the United States of America, then those of Federal Republic of Germany and of United Kingdom, adopted laws governing the access of their nationals to the resources, so creating a parallel régime to the one that was still under discussion. France was not long to follow them in adopting similar legislation (Décret nº 81-555 of 1st July 1981, loi nº 81-1135 of 23 December 1981, décret d'application nº 82-111 of 29 January 1982).

The 1st July 1981, like the American, German and English industrials, the Centre national pour l’exploitation des océans (CNEXO, that becomes Ifremer in 1984) filed to the French government, on behalf of the Association française pour l’exploration et la recherche des nodules (AFERNOD, French association for exploration and research of nodules), an application for an exploration license covering an area of 455 000 square kilometers.

On 30 April 1982, the final text of the Convention on the Law of the Sea was adopted by 130 votes in favor, 4 against and 17 abstentions. Among the votes against, one finds the United States, Federal Republic of Germany and United Kingdom.

On 12 July 1982, the French application for an exploration license was modified to be reduced to 300 000 square kilometers, in accordance with the provisions of the United Nations Convention on the Law of the Sea.

On 10 December 1982, at the signature of the Convention on the Law of the Sea in Jamaica (signed by 119 delegations), France expresses its reserves on the applicability of the part related to deep seabed. The United States, Federal Republic of Germany and United Kingdom refused to sign the Convention. An interim legal régime to protect the preliminary investments in the deep seabed was put in place by the Conference that elaborated the Law of the Sea Convention. This régime is established by the Resolution II that defines its terms and modalities. It was managed by the Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea, which shall attend to the fulfillment of the final régime. In 1983, the Preparatory Commission met in Kingston (Jamaica) to start its work.

On 19 September 1983, new modifications were made to the French application in accordance with the agreement signed with the American consortia in view to settle the conflicts issued from the overlaps of applications filed to five different countries.

On 12 January 1984, other modifications were made to the French application to take into account new agreements made with the American and Japanese consortia, in view to settle the overlapping conflicts. The French application is reduced to 219 000 km² of which 94 500 are preserved from the application of July 1982.

On 3 August 1984 France presented, to the Secretary General of the United Nations, an application for registration as a pioneer investor, on behalf of AFERNOD. The same day, France signed a provisory agreement between eight countries (Belgium, Federal Republic of Germany, Italy, Japan, Netherlands, United Kingdom and United States), confirming the result of the negotiations carried out between the consortia.

On 17 December 1984, an exchange of coordinates of the applications is organized at Geneva between France, India, Japan and Soviet Union: four states that are identified as pioneer investors and shall ensure the absence of overlapping conflicts between their applications before registration.

On 5 September 1986 in New York, the Preparatory Commission agreed on a memorandum of understanding regarding the resolution of conflicts among applicants for registration as pioneer investors. The major provision of this agreement is the commitment of each applicant to contribute to the constitution of an area of 52 300 km² in the Pacific to be reserved for the Authority. Each applicants will be allocated of an equal area of its choice, and complement this area to 75 000 km².

Revised applications were filed by the four countries on 20 July 1987. However, as Soviet Union had not resolved its potential conflicts with the North-American consortia, only the Indian application was registered on 17 August 1987.

The applications of France, Japan and Soviet Union were finally registered on 17December 1987 in New York. Ifremer, on behalf of AFERNOD, was allocated as "pioneer investor" of an area for pioneer activities of 75 000 km² in three pieces, of which 43 960 km² come from the application filed by AFERNOD in July 1981.

Soviet Union and Japan received also 75 000 km² each. The total area reserved for the conduct of activities by the Authority through the Enterprise or in association with developing States amounts to 587 728 km² of which 150 000 in the Indian Ocean. The 92 672 km², relinquished by Soviet Union when applying for registration, are reserved to become part of areas that could be applied for by potential applicants. They are part of the 794 000 km² that belong to the four consortia registered by the United States, the United Kingdom and the Federal Republic of Germany.

On 5 March 1992, COMRA (China Ocean Mineral Resources Research Development Association) of the People’s Republic of China was registered as pioneer investor and was allocated with a pioneer area of 150 000 km² in the western part of the Clarion-Clipperton zone in the Pacific.

On 21 August 1992, Interoceanmetal, a joint venture of organizations from Bulgaria, Cuba, Czech Republic, Poland, Slovak Republic and Soviet Union, received an area of 150 000 km² in the eastern part the Clarion-Clipperton zone, with the status of pioneer investor.

So a total of 2 316 418 km² was covered by mining rights, of which 887 768 reserved for the International Seabed Authority, 675 000 allocated by the Preparatory Commission and 615 350 granted by governments that did not signed the Convention on the Law of the Sea.

The allocation of pioneer areas to the pioneer investors was subjected to obligations for the fulfillment of which an understanding was adopted on 30 August 1990 by the Preparatory Commission. In accordance with this understanding, the pioneer investors shall provide training for a first group of twelve trainees from developing States.

Furthermore, the three registered pioneer investors whose pioneer areas are located in the North-East Pacific, should have undertaken the exploration of the 71 570 km² reserved for the Authority in the central zone. The plan of work made provision for, in a first approach, bathymetric surveys with multibeam echosounders, sampling and spot photography of the bottom, and a survey of the nodule abundance by multi-frequency exploration system. The first stage of this programme was done in 1991 by the submission to the Preparatory Commission of a report on the synthesis of all available data, realized in common by the three pioneer investors.

On 16 November 1993, the sixtieth State ratified the Convention that, as provided, entered into force one year after on 16 November 1994.

On 14 January 1994, KORDI (Korean Ocean Research and Development Institute) from Republic of Korea filed to the Secretary General of United Nations its application to be registered as pioneer investor and was allocated with a 150 000 km² area in the central part of the Clarion-Clipperton zone in the Pacific.

From 1992, consultations have been undertaken under the aegis of the Secretary General of United Nations between signatories and non-signatories of the Convention. They come, on 28 July 1994, to the adoption of the resolution 48/263 by the General Assembly of the United Nations, known as Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea. This text, which is now part of the Convention, introduced a certain number of modifications to previous provisions. Thus the obligation to transfer the technology, the provisions relating to production ceiling, the financial contributions to create the international Enterprise, the financial terms of exploration and exploitation contracts were withdrawn. Future rules shall be established in accordance with the provisions of the General Agreement on Tariffs and Trade. Moreover, the Enterprise shall conduct its activities through joint ventures. Special provisions were also provided for the approval of plans of work of registered pioneer investors and of " potential applicants ". The Agreement entered into force on 28 July 1996.

The International Seabed established its seat, as provided by the article 156 of the Convention, in Jamaica at Kingston at the end of 1994. It comprises the following organs:

1. The Assembly, which consists of not only all the States who ratified or acceded to the Convention and the Agreement, but also States members on a provisional basis who consented to be bound by the Agreement, pending their final accession to the Convention. This provision expired on 16 November 1998. Henceforth, only States that ratified or acceded to the Convention and the Agreement are members. However, other countries keep the possibility to follow the work of the Authority as observers. France ratified the Convention on 11 April 1996.

2. A Council of 36 members elected by the Assembly, consisting of five groups: 

a) Four States among the most important consumers of the metal contained in the nodules, 
b) Four States among those that made the largest investments in the Area, 
c) Four States among the major exporters of the metal contained in the nodules,
d) Six States among the developing countries that are the most disadvantaged or the major importers of the metals contained in the nodules, 
e) Eighteen States representing the different geographic groups.

3. The Council disposes of two organs of experts: the Legal and Technical Commission and the Finance Committee. The members of these commissions are elected for 5 years from lists of candidates nominated by the States Parties. The replacement of their members will occur in 2002.

From 1995 to 2000, the Authority hold 10 meetings, installing its different organs and approving the plan of work submitted by the registered pioneer investors. It adopted, in July 2000, the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, a kind of mining code limited to exploration. The Authority operated from 1998 with an independent budget, presently set around five millions of US dollars. The budget is supplied by contributions of States Parties in accordance to a scale of assessment similar to the budget of the United Nations. France contributes for approximately 6.5 %. 

The operators, whose plan of work has been approved in August 1997, shall sign a contract for exploration with the Authority in 2001, in accordance with the provisions of the mining code.

The approved plans of work consider only general exploration for the first five years. They does not envisage detailed exploration, feasibility studies and mining tests, as long as economic conditions will not allow to foresee the possibility of commercial exploitation.