The international seabed authority: Beyond the reach of developing states.

Abstract

This thesis argues that the deep seabed mining provisions and the International Seabed Authority created under Part XI of the 1982 UN convention on the Law of the Sea are beyond the reach of developing states because they lack capital and technology to meaningfully venture into the seabed by themselves. Consequently the developing states may not benefit from the exploration and exploitation of seabed resources. Chapter One makes a general introduction and statement of the problem and traces the historical evolution of the present legal regime for the seas. This chapter also justifies the legal regime for the seas and finally makes an overview of the law of the sea convention)n. In Chapter Two a study of the institutional framework of the Authority is undertaken. The establishment and membership of the Authority, which is a creature of the Convention constitutes the first part of the chapter. An important issue for discussion in this chapter is the decision-making processes and the composition of the organs of the Authority. This proved to be a major and controversial issue during negotiations in UNCLOS III. This principal organs of the Authority, namely, the Assembly, the Council, the Secretariat and the Enterprise are then discussed in turn. The other institutional aspects of the Authority are summarised. The Preparatory Commission, which is the harbinger of the Authority is discussed in the last part of this chapter. Chapter Three defines and describes the Area and discusses the principles governing the Area. The common heritage of humankind principle, perhaps the most important principle governing the Area, is seen to be in jeopardy. The provisions of the Convention on transfer of technology make unacceptable demands on the developed states. The princi ple of equitable distribution of seabed resources is still an untried formula. An attempt is also made to discuss the issue of development of the resources of the Area which is closely related to the issue of principles governing the Area. In particular, the chapter discusses the problems and issues emerging from the Convention's prescribed production policies and controls, and singles out \ the controversial and prominent issue of "pioneer investments." There is also a discussion of the so- called" Alternative Regimes."

xiv Chapter Four discusses the developing states and international organisations generally, and the Authority in particular. The controversies, conflicts and tensions that beleaguered the construction of the deep seabed mining provisions in the Law of the Sea Convention are demonstrative of the imbalances between the majority developing states and the minority developed states in the pursuit of interests in the deep seabed. The pioneer investors and the reciprocating states regimes considerably strengthen the position of developed states over the developing states. An examination of the various national legislation and Agreements on deep seabed mining (which collectively constitute the Reciprocating States Regime) leads to the conclusion that this development would considerably hurt and bleed the Conventional regime. Finally, a discussion of the United Nations General Assembly Agreement relating to the implementation of Part XI of the UN Convention of the Law of Sea is undertaken. The Agreement is perceived as an attempt at bridging the differences and healing the wounds between those states, mainly developing states, which back the Conventional regime and those ones, mainly developed states, which back the Reciprocating States' Regime. Chapter Five summarizes the main points and makes recommendations and reflections on the improvement of the deep seabed mining regime and the Authority, given that the Convention has now entered into force as international law.