Current Legal Regime For The Exploitation Of The International Seabed - Essay Example

CURRENT INTERNATIONAL SEABED LEGAL REGIME Introduction International seabed constitutes sea resources in the area, far beyond the coastal boundary of any country. In terms of international law, this area, however bestowed with minerals and other exploitable resources falls out of jurisdiction of the states. Property existing in no man’s land is usually a no man’s territory and the attached uncertainty in its exploitation should likewise be a no man’s business to control. However, with continued civilization in world’s human governance and order, the highest organs at international community relations was keen to introduce order for the massive but uncertain resources contained in the international sea. The United Nations’ resolve was timely to intervene in terms of internationally acceptable legal framework, to assist states to achieve an equitable access to the resources bestowed to these uncertain areas. This study attempts to analyse the features of the current legal regime that touches on the international sea exploitation. It explores internationally set regulations and conventions attempting to introduce control and order over the resources. In the first section, origin of conventions and bodies associated with the control of international seabed exploitation is visited. Perhaps it is appropriate to lay the foundation to the current regulatory framework, by briefly mentioning some of the earliest conventions aimed at introducing order at the international seabed. In line with this, the discourse adopts a chronological order for the conventions, it terms of the date of formulation. The second section explores features of some of the regulations thereon. Origin of Current Regime Current legal regime concerning international seabed could have obtained inspirations from a few international regulations formed several decades before. Perhaps a major development in the 17th century towards the same spirit was the Freedom of the Sea Concept which was generated in the context of orderliness in high seas.1 Later, it was common for such regulations such as the Copenhagen Convention of 1857, whose limited scope of intentions was to introduce order in the handling of access of the Baltic Sea. There was territorial uncertainty in the preceding year, compromising shipping routes, which was resolved by a financial undertaking for Sound and Belt dues handing it over to Denmark.2 The Hague Conference of 1930 was convened with an intention of defining regulations to govern international waters control.3 However, the initial ambition by the LON for creation of an international seabed regulation platform was frustrated and the results were futile since it never came into force.4 Law of the Sea Treaty The Law of the Sea Treaty is a maturation of the United Nations Conference on the Law of the Sea (UNCLOS) series of conventions that kicked off in 1956 to 1973. Implementation of the final phase of the conferences was the birth of UNCLOS or the Law of the Sea Treaty. UNCLOS I was held in 1956 in Geneva and delivered four sub treaties that would be enacted in different phases.5 Definition of territorial waters was deliberated in UNCLOS II, held in 1960. Territorial waters were defined to comprise of 12 nautical miles from the shore, where one nautical mile is equivalent to 1.8252 kilometres.6 In 1973, UNCLOS III was held to continue deliberations on the regulation of international seabed. Further to the 12 nautical miles wide territorial water definition given at UNCLOS II, 200 nautical miles were added to the territorial waters definition.7 After conclusion of UNCLOS III in 1982 (from 1973) the timeframe of its implementation was taken over by the Law of the Sea Treaty as a continuation of the provisions and regulations thereon. Complete implementation and enactment was to kick off in 1993, but due to lack of numbers by one signatory state, it was not enacted until 1994 upon Guyana’s ratification. Some of the main specific features in which the Treaty highly borrows from UNCLOS III are as discussed. i) Territorial Sea Earlier definition of territorial waters into the sea is still recognized at 12 miles. Seabed as well as the subsoil in this region is completely under the jurisdiction and ownership of the coastal state.8 Ships from other countries are however permitted to pass through territorial sea by the Treaty. Aircrafts on the other hand are not allowed to pass, since it is not included in the provision of innocent passage. “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention”.9 ii) Regime of Transit Passage International passage was to be affected to the extent that legal status of navigation straights used before would be tampered with if they fell within 12 miles off the coast of a state. It is in the provisions of the Treaty that such territorial sea must be accessed by all ships and aircraft. The right transit passage is therefore provided for by the Treaty but only for purposes of transit. Certain obligations are however outlined as well. …The regime of innocent passage, in accordance with Part II, section 3, shall apply in straits used for international navigation: (a) excluded from the application of the regime of transit passage…There shall be no suspension of innocent passage through such straits…10 iii) Archipelagic States Despite having been raised as early as 1958 in the Geneva Conference, international seabed issues affecting archipelagos was not resolved until the deliberations of Law of the Sea Treaty. The Treaty recognises the indefinite shape of the general coastline of archipelagic states and resolves that archipelagic baselines may be used instead, to determine the territorial waters. Accordingly, for transit purposes, archipelagic sea-lanes passage routes have been provided for. “…An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea”.11 iv) Exclusive Economic Zone One of the pillars of the Treaty is based on resources and their economic value to states with regard to international seabed exploitation. Developing states are particularly in consideration of protection of their territorial waters’ resources with provisions of protection stretching 200 miles into the sea. Traditional high seas freedoms are preserved by the treaty, for international coexistence. …The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.12 v) Limits of Continental Shelf The Treaty establishes a continental shelf area which comprises of sea-bed and subsoil in a specified limit of stretch giving a more specific definition. Beyond the territorial sea, the Treaty provides for a continental shelf of extension of land territory by 200 nautical miles from the territorial sea limit. Provisions are further given detailing continental shelf stretch which may be more than 200 miles. …The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.13 vi) Sea Access by Land Locked States The treaty allows countries without a coastline the right to access sea waters by all transport means. Agreements are to be facilitated by the two states in order to ensure compliance to and protection of national interests and values.14 vii) International Seabed Area A legal regime has been established by the Treaty regarding utilisation of resources within the sea waters under the jurisdiction of the coastal states. The International Sea-Bed Authority is mandated with overseeing all exploration and exploitation of resources within the Area.15 Part XI Under the title “The Area,” Part XI defines resources contained by the international seabed as they exist, in any of the three physical states of matter terming them as minerals.16 The Treaty also provides for the definition of the actual compass location of the mineral deposits in accordance with the geographical limits and demarcations outlined in the definitions of territorial waters. In addition, Article 134 and 135 have been incorporated in Part XI to explain other legal requirements governing The Area. “Neither this Part nor any rights granted or exercised pursuant thereto shall affect the legal status of the waters superjacent to the Area or that of the air space above those waters.”17 Activities of exploring the minerals in the area and the regulations that govern the activities are clearly outlined also in this section of the Convention. Annex regarding the implementation agreement of Part XI has sections one to nine outlining the pledge of compliance by member states. International Seabed Authority Upon the implementation kickoff in 1994, the first meeting under the Law of the Sea Treaty was held in Kingston, Jamaica which consequently became the headquarters of the convention. The UN handed the observer status to the International Seabed Authority two years of its inception. Since then, the mandate of the authority has been to ensure that the provisions of the UNCLOS or the Law of the Sea Treaty are complied with by the 159 member states. Establishment, Principles and Organs of the Authority International Seabed Authority is established under Section 4 (Article 156) of the Treaty, which also specifies the right of participation as observers. It also specifies the seat as well as providing for the creation of regional offices such as the Authority may deem fit in delivery of its mandate. “There is hereby established the International Seabed Authority… The seat of the Authority shall be in Jamaica. … The Authority may establish such regional centers or offices as it deems necessary for the exercise of its functions…”18 The nature of the Authority as created to deliver its mandate is also clearly outlined in the Treaty. For the avoidance of controversy of the operations and delivery of mandate, Article 157 enumerates the origin of its power and the principles under which the Authority carries out its roles. A deliberate statement regarding observance of sovereignty of member states is included, perhaps to protect the Authority from the challenge of attacks on basis of interference with internal affairs of member states as some international treaties do in the delivery of their mandate. An expectation statement, that auger well with the principle of sovereignty equality, clears the doubt of obligations from the parties to the treaty (the member states as well as the Authority). “…The Authority… shall… organize and control activities… 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 this Convention … based on the principle of the sovereign equality of all its members. All members of the Authority shall fulfill in good faith the obligations assumed by them in accordance with this Part….”19 The Treaty gives authority to the members to such an extent that they can create subsidiary organs as deemed fit by operations of the Authority.20 Role of the Authority Some of the organ specific roles carried out by the Authority are outlined in Subsections B and C of Section 4 of the Treaty that creates the Authority. The Assembly is perhaps the main organ comprising of representation of all members. It has key roles to play in the Authority’s mandate such as the following, among many others; electing Council’s members, the Secretary General, the Enterprises Director-General as well as its Governing Board members, establish necessary subsidiary organs and assess members’ contribution towards the budget. Financial regulations regarding member states’ obligations and any procedure changes are also placed in the hands of the Assembly. Benefits obtained from activities in the Area are shared equitably by the Assembly within the provisions of the budget that it has the mandate to prepare. Problems of a general nature concerning the Area are taken care of through studies initiated by the Assembly. Any issues regarding compensation and rights and privileges of member states are also handled at the Assembly level of organization. Allocation of jurisdiction of organs of the Authority on any matter or question is vested in the Assembly.21 It is in the Council that the executive role of the authority vests. The following are among the many roles played by the Council on behalf of the Authority. The signing of agreements with the UN and any other body is the mandate of the Council, in line with the mandate to exercise control over the Area. In order for proceedings to begin at the Seabed Disputes Chamber regarding non compliance, the Council initiates the process. Issuance of emergency orders, disapproval of exploitation areas as well as issuing mechanisms of staff inspection of the Area all lie in the mandate of the Council.22 International Tribunal for the Law of the Sea With headquarters situated in Hamburg, Germany, disputes in the jurisdiction coverage by the Law of the Sea Treaty are handled by the body known as the International Tribunal for the Law of the Sea.23 Member states having diplomatic issues arising from exploitation or international seabed resources in dispute areas take their matters to the tribunal for resolution. References A Magne Horneland ‘International Conventions and Regulations of Importance to Marine Medicine’ Textbook of Maritime Medicine (5 January 2011) R Platzöder and P A Verlaan eds The Baltic Sea: New Developments in National Policies and International Cooperation Vol 1 (Martinus Nijhoff Publishers The Hague 1996) 44 J Bartell J The Yankee Mariner & Sea Power: America’s Challenge of Ocean Space: Papers from a Conference (Transaction Publishers California 1982) 78 --“The Law of the Sea” Nassau Community College (5 January 2011) M Bedjaoui ed International Law: Achievements and Prospects. (Martinus Nijhoff Publishers Dordrecht 1991) 841 --“United Nations Convention on the Law of the Sea” UN (5th Jan 2011) 27 (art 3) S. Beck “Wilson and the League of Nations: League of Nations Failures after 1930” < http://www.san.beck.org/GPJ21-LeagueofNations.html> (5 January 2011) Read More