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The Law of the Sea Preparatory Commission after Six Years: Review and Prospects

Published online by Cambridge University Press:  09 March 2016

Philippe Kirsch  and
Douglas Fraser
Philippe Kirsch
Affiliation:
Permanent Mission of Canada to the United Nations, New York
Douglas Fraser
Affiliation:
Legal Operations Division, Department of External Affairs
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 26 , 1989 , pp. 119 - 154
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1989

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References

1 For example, Churchill, R. R. and Lowe, A. V., The Law of the Sea (1983)Google Scholar ; Nordquist, Myron H. (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary (1985)Google Scholar ; Bardonnet, Daniel et Virally, Michel (eds.), Le Nouveau Droit International de la Mer (1983)Google Scholar.

2 The Law of the Sea: United Nations Convention on the Law of the Sea, United Nations (1983), xvix (Bernardo Zuleta) and xxxiii (Tommy T. B. Koh).

3 Sanger, Clyde, Ordering the Oceans: The Making of the Law of the Sea (1987)Google Scholar ; Hage, Robert, “Canada and the Law of the Sea,” (1984) 8 Marine Policy, at 2.CrossRefGoogle Scholar

4 Jones, William B., “Risk Assessment: Deep Seabed Mining,” (1986) 16 Ocean Law and International Development 341 CrossRefGoogle Scholar ; Breen, Jamie H., “The 1982 Dispute Resolving Agreement: The First Step toward Unilateral Mining outside the Law of the Sea Convention,” (1984) 14 Ocean Law and Int’l Development 201.CrossRefGoogle Scholar

5 Clingan, Thomas, Jr., The 1983 Law of the Sea Treaty 12–16 (1986)Google Scholar; Proclamation by the President of the United States on the Exclusive Economic Zone and accompanying Statement, Mar. 10, 1983.

6 Supra note a, at 175; Res. I, paras. 1,13.

7 Ibid., Res. I, paras. 5–11.

8 Ibid., at 177; Res. II, paras. 1–6.

9 States such as Italy, France, Belgium, and The Netherlands have, to varying degrees, taken this position. This objective also underlies the participation at the PrepCom, as observers, of the United Kingdom, and the Federal Republic of Germany.

10 See, for example, United Nation Press Releases SEA/KIN/30; SEA/KIN/8.

11 Supra note 2, at 175; Res. I, para. 2; and at 177, Res. II, paras. 1, 2, and 5.

12 See, for example, Breaux, John, “The Diminishing Prospects for an Acceptable Law of the Sea Treaty,” (1979) 19 Virginia J. Int’l L. 257.Google Scholar

13 The sites claimed by the consortia have been registered under the domestic deep seabed mining legislation of the United States, the United Kingdom, and the Federal Republic of Germany (infra note 65).

14 Convention on the Law of the Sea, Art. 160 (2) (e).

15 These issues will be dealt with infra.

16 Convention, Art. 309; see also supra note a, at xxxvi (Koh).

17 Clingan, op. cit. supra note 5.

18 Alexander, Lewis, Navigational Restrictions within the New LOS Context: Geographical Implications for the United States, Offshore Consultants Inc., Peacedale, R.I. (1986).Google Scholar

19 Convention, Part XV and Annexes V to VIII.

20 This point is developed infra.

21 As of December 31, 1988 there were 159 signatures and 35 ratifications.

22 Infra note 29.

23 Lee Kimball, , Council on Ocean Law, “PrepCom or UNCLOS IV,” paper presented to the Annual Meeting of the American Society of International Law, Washington, D.C., Apr. 21, 1988.Google Scholar

24 Supra note 2, at 177; para. 1 (a).

25 Ibid., paras. 1 (a) (b) (c) and 5. It should be noted that, while the states concerned with overlapping claims have an obligation to inform the PrepCom of their negotiations, the responsibility for resolving conflicts is within their exclusive competence.

28 See Soviet position in doc. LOS/PCN/4 of Apr. 8, 1983, LOS/PCN/6 of Apr. il, 1983, LOS/PCN/17 of May 2, 1983, LOS/PCN/19 of May 4, 1983, LOS/PCN/30 of Oct. 24, 1983, LOS/PGN/34 of Apr. 3, 1984 and LOS/ PCN/38 of Apr. 10, 1984; Indian position in doc. LOS/PCN/7 of Apr. 26, 1983, LOS/PCN/21 of May 13, 1983 and LOS/PCN/37 of Apr. 6, 1983.

27 See, for example, docs. LOS/PCN/15 of Apr. 29, 1983 and LOS/PCN/40 of Apr. H, 1984 (Canada) ; LOS/PCN/8 of Apr. 27, 1983, LOS/PCN/12 of Apr. 29, 1983, LOS/PCN/22 of Apr. 21, 1983, LOS/PCN/35 of Apr. 2, 1984 and LOS/PCN/44 of Apr. 12, 1984 (France) ; LOS/PCN/9 of Apr. 28, 1983 and LOS/PCN/37 of Apr. 7, 1984 (Federal Republic of Germany); LOS/ PCN/11 of Apr. 28, 1983, LOS/PCN/34 of Mar. 29, 1984 and LOS/PCN/ 42 of Apr. 12, 1984 (Japan); LOS/PCN/18 of May 3, 1983 (The Netherlands); LOS/PCN/41 of Apr. 12, 1984 (Belgium, France, Federal Republic of Germany, Italy, Japan, The Netherlands, United Kingdom).

28 Provisional Understanding Regarding Deep Seabed Mining, done at Geneva, Aug. 3, 1984 (1984) S3 Int’lLeg. Mat. 1354.

29 The Group of 77 stated that “documents based on national legislation and reciprocal agreements for the purpose to [sic] regulate and authorize deep seabed activities” are “contrary to the letter and the spirit of the Law of the Sea Convention and have no legal validity.…” The Group “[rejected] the PU as a basis for creating legal rights and [regarded] it as wholly illegal” (doc. LOS/PCN/48 of Aug. 16, 1984). The Eastern European states characterized it as a “mini-treaty … aimed at permitting Western consortia to act without control in exploring and exploiting the resources of the deep sea-bed.” They pointed the finger at the “hegemonistic, imperialistic policy of the current United States administration” and engineered a draft resolution by which the PrepCom would have decided that this and any similar agreements were wholly illegal and would not be recognized by the PrepCom (docs. LOS/PCN/ 49 of Aug. 17, 1984 and LOS/PCN/L.7/Rev. 1 of Aug. 21, 1984. These statements were rebutted, in general terms, by signatories of the PU (doc. LOS/PCN/52 of Aug. 24, 1984). A draft resolution, however, was not pursued because a number of delegations in the Group of 77 were reluctant to antagonize Western states unnecessarily when only three months were left before the deadline for signature of the Convention. A comparable situation did, however, develop later in the context of issuance of licences by the United States, the Federal Republic of Germany, and the United Kingdom. See infra, notes 68-70.

30 Docs. LOS/PCN/50 of Aug. 22, 1984 and LOS/PCN/51 of Aug. 23, 1984. The Soviet Union and India had themselves submitted applications, respectively in doc. LOS/PCN/30 of Oct. 24, 1983 and in a letter of Jan. io, 1984 that was not distributed. The Chairman of the PrepCom had acknowledged the receipt of those applications in docs. LOS/PCN/31 of Oct. 24, 1983 and LOS/PCN/32 of Feb. 14, 1984.

31 The “Understandings on the Resolution of Conflicts among Applicants for Registration as Pioneer Investors,” the “Understanding on the Procedure for Conflict Resolution among the First Group of Applicants” and the relevant statement by the Chairman are contained in doc. LOS/PCN/L.8 of Aug. 31, 1984.

32 Docs. LOS/PCN/60 to 63 of Apr. 26, 1985. The United Kingdom also sent a letter to the same effect, contained in doc. LOS/PGN/54 of Sept. 24, 1984.

33 On the other hand, Japan preferred to focus on the interests of its State enterprise and never joined the group of potential applicants despite its own signature of the Convention and Japanese interests in two of the consortia.

34 The Soviet Union’s position is contained in docs. LOS/PCN/65 of July 8, 1985 and LOS/PCN/66 of July 15, 1985; France’s position is contained in doc. LOS/PCN/67 of Aug. 16, 1985.

35 Res. II supra note 2, at 177, paras. 3 and 5. Doc. LOS/PCN/56 of Mar. 12, 1985.

36 Res. II supra note 2, at 177, para. 3.

37 In essence, this concept provided a mechanism for the settlement of outstanding overlapping claims without requiring official negotiations with non-signatories, which the Soviet Union still rejected as interlocutors. It was inspired by para, 1 (e) of Res. II, which obliges pioneer investors to relinquish to the International Area 50% of the area allocated to them over a period of 8 years (after the Authority has received its own part of the original application under para. 3(b) ). If the part of the area to be relinquished coincided with territories claimed by consortia, and if relinquishment took place at the time of registration rather than over a period of 8 years, then the overlapping claims would be solved at least to the extent that the Soviet Union would no longer have any claims or interest in those areas.

38 The Arusha Understanding has not been published.

39 Doc. LOS/PCN/L.4i/Rev. 1, Annex, of Sept. 11, 1986.

40 Supra note 39, paras. 3, 9-13. The overlaps are called “practical problems” in all relevant documents to avoid formal recognition by the Soviet Union that states or entities outside the law of the sea framework might have legitimate claims.

41 These documents have not been made public.

42 Agreement on the Preservation of the Confidentiality of Data Concerning Deep Seabed Areas. At the time of writing this agreement had not been published but was available on request from the concerned governments, including the Canadian government.

43 Docs. LOS/PCN/81 of Mar. 24, 1987 (Soviet Union); LOS/PCN/82 of Mar. 24, 1987 (France, Indian, Japan, Soviet Union); LOS/PCN/83 of Mar. 30, 1987 (Canada, Belgium, Italy, The Netherlands).

44 “Statement of Understanding on the Implementation of Resolution II Made by the Chairman of the Preparatory Commission at the 34th Plenary Meeting, Held on 10 April 1987,” doc. LOS/PCN/L.43/Rev. 1 of Apr. 15, 1987.

45 Doc. LOS/PCN/90 of Aug. 3, 1987. The United Kingdom and the Federal Republic of Germany sent subsequent letters welcoming the settlement. See docs. LOS/PCN/92 and LOS/PCN/93 of Aug. 6, 1987.

46 The main agreement is reproduced in ( 1987 ) 26 Int. Leg. Mat. 1505. Complete documentation relating to the Agreement is filed with the Treaty Registrar of the Department of External Affairs for eventual publication in the Canadian Treaty Series.

47 Understanding on the Resolution of Conflicts among Applicants for Registration as Pioneer Investors, paras. 1 and 8 supra note 31 ; see also doc. LOS/ PCN/L.43/Rev. 1, para. 3 supra note 44.

48 Doc. LOS/PCN/L.43/Rev.i ibid., para. 12.

49 Draft Rules for the Registration of Pioneer Investors and Draft Rules on Confidentiality of Data and Information, docs. LOS/PCN/WP.i6/Rev.i of Apr. 12, 1984 and LOS/PCN/WP.i6/Rev.i/corr. 1 of June 8, 1984. See also proposals by the delegation of Belgium, France, Federal Republic of Germany, Italy, Japan, The Netherlands, and the United Kingdom, docs. LOS/PCN/ WP.18 of Mar. 21, 1984 and LOS/PCN/WP.22 of Aug. 14, 1984; suggested amendments submitted by Bulgaria, the German Democratic Republic, Hungary, Poland, and the USSR, doc. LOS/PCN/WP. 19 of Mar. 22, 1982; suggestions by the Chairman of the Preparatory Commission, doc. LOS/PCN/ WP.24 of Sept. 4, 1984. The main problems related to confidentiality of data and information, the role of technical experts and the General Committee, and the status and obligations of pioneer investors and certifying states. See statement made by the Chairman of the Preparatory Commission, doc. LOS/ PCN/L.13 of Sept. 4, 1984.

50 Supra note 44, at paras. 3-8. The General Committee is composed of the chairman of the PrepCom, the 14 vice-chairmen, the rapporteur-general, and the 20 officers of the four special commissions. See doc. LOS/PCN/INF/2/Rev.2 of Sept. 14, 1987 for the current composition of the Bureau. Canada is a member as one of the vice-chairmen of Special Commission 2. The revised timetable is contained in ibid., paras. 8-11.

51 Res. II supra note 2, at 177, para. 3.

52 The revised applications are contained in docs. LOS/PCN/86 to LOS/PGN/ 89 of July 23, 1987. The Soviet Union announced that it would have to further revise its application in the letter it sent jointly with the potential applicants reporting the successful outcome of the negotiations, supra note 25. The same day, the first group of applicants sent a letter making the distinction between the Indian application and the others, doc. LOS/PCN/91 of Aug. 3, 1987.

53 Report of the Group of Technical Experts to the General Committee of the Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea on the Application of the Government of the Republic of India for Registration as a Pioneer Investor under Resolution II of the Third United Nations Conference on the Law of the Sea, doc. LOS/PCN/BUR/R.i of Aug. 10, 1987. The Group of Technical Experts was of high professional calibre. One of the experts was David W. Pasho, Director, Ocean Mining Division, Mineral Policy Sector, Department of Energy, Mines and Resources, nominated by the Government of Canada.

54 Formal Part of the Application of India Released for the Information of the General Committee with the Consent of the Applicant, doc. LOS/PCN/ BUR/INF/R. 1 of Aug. 11, 1987.

55 Decision of the General Committee on the Application of the Government of India as a Pioneer Investor under Res. II, doc. LOS/PCN/94 of Oct. 9, 1987.

56 Statement made by the Chairman of the Preparatory Commission, doc. LOS/ PCN/L.54/Rev. 1 of Sept. 4, 1987, particularly paras. 23-32.

57 The reports of the Group of Technical Experts on the applications of France, Japan, and the Soviet Union, which bear titles similar to its report on the application of India, supra note 53, are contained in docs. LOS/PCN/BUR/ R.2-4. Basically, the task of the General Committee was, first, to make recommendations concerning which of the two areas of 22,700 km2 should go to the Authority (under the Statement on Implementation each applicant could choose 52,300 km2 for itself for a permissible total of 75,000 km2) ; second, on the basis of that choice, to determine whether the total areas allocated to the applicant and reserved for the Authority were of equal estimated commercial value and, third, to advise the General Committee whether the total of the contributed areas for the Authority in the rich “central region” (52,300 km2) was equal to the average estimated commercial value of the three areas self-allocated by the applicants.

58 Part of the Revised Application for the Registration of the Soviet State Enterprise Yuzhmorgeologia as a Pioneer Investor under Resolution II of the Third United Nations Conference on the Law of the Sea, Released for the Information of the General Committee with the Consent of the Applicant, doc. LOS/ PCN/BUR/INF/R.2 of Dec. 4, 1987; Information Concerning the Revised Application of Japan for the Registration of “Deep Ocean Resources Development Co., Ltd.” (DORD) as a Pioneer Investor .. ., doc. LOS/PCN/BUR/ INF/R.3 of Nov. 30, 1987; Excerpts from the Application Submitted by France for Registration as a Pioneer Investor ..., doc. LOS/PCN/BUR/ INF/R.S4 of Dec. 2, 1987; Statement Submitted by France on its Revised Application, doc. LOS/PCN/BUR/INF/R.6 of Dec. 10, 1987. See also Chart Illustrating the Disposition of Areas as contained in the Application for Registration as Pioneer Investors of France, Japan, and the Union of Soviet Socialist Republics, doc. LOS/PCN/BUR/INF/R.5 of Dec. 8, 1987.

59 Supra note 46.

60 The decisions of the General Committee on the applications of France, Japan, and the Soviet Union bear similar titles to its decision in the case of India, supra note 55, and are contained in docs. LOS/PCN/97-99 of Jan. 6, 1988. See also a summary of the decisions and of the related debate in the Report of the Chairman of the Preparatory Commission on the Meeting of the General Committee held on 7-18 December 1987 to Consider the Applications Submitted by France, Japan, and the Union of Soviet Socialist Republics for Registration as Pioneer Investors under Resolution II, doc. LOS/PCN/L.55 of Jan. 6, 1988, particularly paras. 13-26. Para. 26 refers to the areas “voluntarily relinquished upon registration and deposited with the Preparatory Commission,” to be “reserved to form part of the application area of potential applicants qualified to apply as pioneer investors under Resolution II, paragraph 1 (a) (ii), until the Convention enters into force.”

61 Res. II supra note a, at 177, para. 7.

62 Ibid., para. 12(a).

63 Statement on Implementation supra note 44, at para. 15.

64 Res. II supra note 2, at 177, para. 12(b).

65 Deep Seabed Hard Mineral Resources Act, 1980 19 Int’l Leg. Mat. 1003 (1980), (US); Deep Seabed Mining (Temporary Provisions) Act, 1981, 20 Int’l Leg. Mat. 1217 (1981)) (U.K.) ; The Act of Interim Regulation of Deep Seabed Mining ibid., at 393 (FRG).

66 Supra note 26.

67 Supra note 29. The G-77 interest in attracting the signature of major states was such that the possibility of granting the status of pioneer investor to a national of the Federal Republic of Germany, if the latter signed the Convention, was considered.

68 Declaration Adopted by the Preparatory Commission on Sept. a, 1985, doc. LOS/PCN/72 of Sept. a, 1985.

69 Doc.LOS/PCN/L.27/Rev.i of Jan. 21, 1986.

70 Declaration Adopted by the Preparatory Commission on Apr. 11, 1986, doc. LOC/PCN/78 of Apr. ai, 1986. At the time of writing this has been the only vote taken by the PrepCom since its inception.

71 Supra note 44, at paras. 12, 15,and 19(d) and (e).

72 Res. II supra note 2, at 177, para. i(a)(iii).

73 The so-called “Brazilian clause,” Statement of Implementation supra note 44, at para. so.

74 Ibid., para. 21.

75 Ibid., para. 22.

76 Press Release SG/SM/4022, SEA/845 of Aug. 6, 1987.

77 Supra note 25.

78 According to Res. II, para. 5(c), failure to resolve conflicts through negotiations was supposed to lead to mandatory arbitration which itself was due to be completed by Dec. 1, 1984. This deadline never played a significant role in the process, and the Group of 77 never took a position as to whether or not the Soviet Union was obliged to resolve its conflicts in a situation where non-signatories were involved. The fact that some signatories initially had interests in all consortia served as a convenient way of avoiding the problem, even though this situation changed in 1987 when The Netherlands interests withdrew from the OMCO consortium.

79 Such a development is unlikely for the foreseeable future ; see infra.

80 See, for example, docs. LOS/PCN/L.a7/Rev.i and LOS/PCN/L.54/Rev.i, and LOS/PCN/L.54/Rev.1. (Statements by the Chairman of the PrepCom on the progress of work in the plenary).

81 Docs. LOS/PCN/L.54/Rev.i, LOS/PCN/L.62 of April 7, 1988; LOS/ PCN/WP.44 of Feb. 8, 1988.

82 Docs. LOS/PCN/SCN.2/WP.10 of Jan. 21, 1986 and LOS/PCN/SCN.3/ WP. 10/Add. 1 of Jan. 21, 1986.

83 The Soviet Union and France (as spokesperson for the registered pioneer investors) have been particularly vocal in this regard at recent PrepCom sessions.

84 See, for example, doc. LOS/PCN/L.50 of Aug. 19, 1987, paras. 3-6.

85 Docs. LOS/PCN/SCN.2/WP. 15 of Feb. 25, 1988 and LOS/PCN/L.60 of Apr. 7, 1988.

86 The Los Convention provides, in Art. 160(2) (e), that contributions to the Authority’s administrative budget will be in accordance with an agreed scale of assessment based on the scale used for the regular budget of the United Nations. States parties are also obliged, under Annex IV, Art. 11(3), to make funds available to the Enterprise to explore and expoit one mine site.

87 The 11 original deep seabed-mining states enumerated in Res. II would contribute on the order of 75 per cent of the budget.

88 The various G-6 and East European drafting proposals are summarized in Doc. LOS/PCN/WP.44.

89 Art. 151(10).

90 See, for example, doc. LOS/PCN/SGN.1/WP.11 of July 16, 1987, paras. 36-46 (and the 6 documents cited there).

91 These efforts are noted in doc. LOS/PCN/L.63 of Sept. 1, 1988, paras. 26-28.

92 Annex VI, Art. 1 (1).

93 Doc. LOS/PCN/SCN.4/1986/CRP.21 contains the informal proposal of the Bureau of Special Commission 4 with respect to this issue. (See also document LOS/PCN/L.66 of Aug. 31, 1988, paras, 9–11.)

94 Supra note 80.

95 The United States participation in the negotiations on overlapping claims was clearly predicated on the understanding that it was not to prejudice its position with respect to the 1982 United Nations Convention on the Law of the Sea.

96 Supra note 4.