AIE2007 Undang-Undang Laut Antarabangsa

(International Law Of The Sea)

Question No. 9:
Elaborate on the objections voiced by developed nations
over the Provisions of Part XI LOST 1982 with respect to
the Deep Sea Bed Regime. Have these objections been
addressed by the 1994 Agreement on the Implementation
of Part XI LOST 1982?
Submitted by Afifa Muhammad Afzal
Matric no. NEX160548
Submitted to Puan Wan Sharina Ramlah Wan Ahmad
Amin Jaffri
Date of Submission: 6th December 2016

In 1982, The Law of the Sea Treaty was formed, though formally it was known as the Third
United Nations Convention on the law of the sea (UNCLOS III). UNCLOS I (1958) AND
UNCLOS II (1960), were believed to be inadequate, therefore, to fill their gap a comprehensive
set of rules governing the oceans was established. The convention produced a number of
provisions such as, setting limits, navigation, archipelagic status, transit regimes, exclusive
economic zones, continental shelf jurisdiction, deep sea bed mining, the exploitation regime,
protection of the marine environment, scientific research and settlement of disputes.
This essay though will deal with the implementation of the part XI and the UN convention of the
Law of the Sea which occurred in July 1994. To address certain difficulties with the seabed
mining provisions contained in Part XI of the Convention, which had been raised, primarily by
the industrialized countries, the Secretary-General convened in July 1990 a series of informal
consultations which culminated in the adoption, on 28 July 1994, of the Agreement relating to
the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10
December 1982. The Agreement entered into force on 28 July 1996. It consists of 10 articles
dealing mainly with procedural aspects such as signature, entry into force and provisional
application. Its article 2 deals with the relationship between the Agreement and Part XI of the
Convention and it provides that the two shall be interpreted and applied together as a single
instrument. In the event of an inconsistency between the Agreement and Part XI, however, the
provisions of the Agreement shall prevail.
Agreement relating to the Implementation of Part XI of the United Nations Convention on the
Law of the Sea of 10 December 1982 stated that:
The States Parties to this Agreement,
Recognizing the important contribution of the United Nations Convention on the Law of the Sea
of 10 December 1982 (hereinafter referred to as "the Convention") to the maintenance of peace,
justice and progress for all peoples of the world,
Reaffirming that the seabed and ocean floor and subsoil thereof, beyond the limits of national
jurisdiction (hereinafter referred to as "the Area"), as well as the resources of the Area, are the
common heritage of mankind,
Mindful of the importance of the Convention for the protection and preservation of the marine
environment and of the growing concern for the global environment,
Having considered the report of the Secretary-General of the United Nations on the results of the
informal consultations among States held from 1990 to 1994 on outstanding issues relating to
Part XI and related provisions of the Convention (hereinafter referred to as "Part XI"),
Noting the political and economic changes, including market-oriented approaches, affecting the
implementation of Part XI,
Wishing to facilitate universal participation in the Convention,

Considering that an agreement relating to the implementation of Part XI would best meet that
objective,
Have agreed as follows:

Article 1
Implementation of Part XI
1. The States Parties to this Agreement undertake to implement Part XI in accordance with this
Agreement.
2. The Annex forms an integral part of this Agreement.

Article 2
Relationship between this Agreement and Part XI
1. The provisions of this Agreement and Part XI shall be interpreted and applied together as a
single instrument. In the event of any inconsistency between this Agreement and Part XI, the
provisions of this Agreement shall prevail.
2. Articles 309 to 319 of the Convention shall apply to this Agreement as they apply to the
Convention.

Article 3
Signature
This Agreement shall remain open for signature at United Nations Headquarters by the States
and entities referred to in article 305, paragraph 1(a), (c), (d), (e) and (f), of the Convention for
12 months from the date of its adoption.

Article 4
Consent to be bound
1. After the adoption of this Agreement, any instrument of ratification or formal confirmation of
or accession to the Convention shall also represent consent to be bound by this Agreement.
2. No State or entity may establish its consent to be bound by this Agreement unless it has
previously established or establishes at the same time its consent to be bound by the Convention.
3. A State or entity referred to in article 3 may express its consent to be bound by this Agreement
by:

(a) Signature not subject to ratification, formal confirmation or the procedure set out in article 5;
(b) Signature subject to ratification or formal confirmation, followed by ratification or formal
confirmation;
(c) Signature subject to the procedure set out in article 5; or
(d) Accession.
4. Formal confirmation by the entities referred to in article 305, paragraph 1(f), of the
Convention shall be in accordance with Annex IX of the Convention.
5. The instruments of ratification, formal confirmation or accession shall be deposited with the
Secretary-General of the United Nations.

Article 5
Simplified procedure
1. A State or entity which has deposited before the date of the adoption of this Agreement an
instrument of ratification or formal confirmation of or accession to the Convention and which
has signed this Agreement in accordance with article 4, paragraph 3(c), shall be considered to
have established its consent to be bound by this Agreement 12 months after the date of its
adoption, unless that State or entity notifies the depositary in writing before that date that it is not
availing itself of the simplified procedure set out in this article.
2. In the event of such notification, consent to be bound by this Agreement shall be established in
accordance with article 4, paragraph 3(b).

Article 6
Entry into force
1. This Agreement shall enter into force 30 days after the date on which 40 States have
established their consent to be bound in accordance with articles 4 and 5, provided that such
States include at least seven of the States referred to in paragraph l(a) of resolution II of the Third
United Nations Conference on the Law of the Sea (hereinafter referred to as "resolution II") and
that at least five of those States are developed States. If these conditions for entry into force are
fulfilled before 16 November 1994, this Agreement shall enter into force on 16 November 1994.
2. For each State or entity establishing its consent to be bound by this Agreement after the
requirements set out in paragraph 1 have been fulfilled, this Agreement shall enter into force on
the thirtieth day following the date of establishment of its consent to be bound.

Article 7

Provisional application
1. If on 16 November 1994 this Agreement has not entered into force, it shall be applied
provisionally pending its entry into force by:
(a) States which have consented to its adoption in the General Assembly of the United Nations,
except any such State which before 16 November 1994 notifies the depositary in writing either
that it will not so apply this Agreement or that it will consent to such application only upon
subsequent signature or notification in writing;
(b) States and entities which sign this Agreement, except any such State or entity which notifies
the depositary in writing at the time of signature that it will not so apply this Agreement;
(c) States and entities which consent to its provisional application by so notifying the depositary
in writing;
(d) States which accede to this Agreement.
2. All such States and entities shall apply this Agreement provisionally in accordance with their
national or internal laws and regulations, with effect from 16 November 1994 or the date of
signature, notification of consent or accession, if later.
3. Provisional application shall terminate upon the date of entry into force of this Agreement. In
any event, provisional application shall terminate on 16 November 1998 if at that date the
requirement in article 6, paragraph 1, of consent to be bound by this Agreement by at least seven
of the States (of which at least five must be developed States) referred to in paragraph 1(a) of
resolution II has not been fulfilled.

Article 8
States Parties
1. For the purposes of this Agreement, "States Parties" means States which have consented to be
bound by this Agreement and for which this Agreement is in force.
2. This Agreement applies mutatis mutandis to the entities referred to in article 305,
paragraph 1(c), (d), (e) and (f), of the Convention which become Parties to this Agreement in
accordance with the conditions relevant to each, and to that extent "States Parties" refers to those
entities.

Article 9
Depositary
The Secretary-General of the United Nations shall be the depositary of this Agreement.

Article 10
Authentic texts
The original of this Agreement, of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United
Nations.

Before UNCLOS III there were three different views relating to the legal status of the natural
resources in the deep sea bed regime
a) Exploitability criterion: Ultimately the whole ocean floor would be divided among coastal
states.
b) Res Communis: The ocean bed and the natural resources there would be subject to the
freedom of the high seas.
c) Res Nullis: Mining states would be able to appropriate the ocean floor as well as its natural
resources through occupation.
The results of the interpretations were such that,

Only technologically developed States would be best placed to explore and exploit
natural resources in the deep ocean floor.

Unrestricted seabed mining would have negative impacts upon land-based exporters of
the minerals concerned. Particularly those which are developing states, since such a
situation would exacerbate uneven development between developed and developing
countries.

In the end, neither the principle of sovereignty nor the principle of freedom could provide
a legal framework ensuring the fair and equitable sharing of natural resources of the Area.

In 1967, Maltese Ambassador Dr Arvid Pardo made a historical proposal that the seabed
and its natural resources beyond the limits of natural jurisdiction should be the common
heritage of mankind.

And in 1969 the Moratorium Resolution stated that, States and persons, physical or
juridical, are bound to refrain from all activities of exploitation of the resources of the
area of the sea-bed and ocean floor, and the subsoil thereof, beyond the limits of
national jurisdiction.

The following events took place in 1970 that too led to the formation of the agreement;

Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil
Thereof, Beyond the Limits of National Jurisdiction was adopted.
Principle 2 of the 1970 Declaration pronounced that: The area shall not be subject to
appropriation by any means by States or persons, natural or judicial, and no State shall
claim or exercise sovereignty or sovereign rights over any part thereof.
Explicitly recognized that the existing legal regime of the high seas did not provide
substantive rules for regulating the exploration of the seabed area beyond the limits of
national jurisdiction and the exploitation of its resources.
The sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national
jurisdiction (hereafter referred to as the area), as well as the resources of the area, are the
common heritage of mankind.

The reason for naming the Area The National Heritage of Mankind was based on the idea
where neither the principle of sovereignty nor that of freedom could provide a legal framework
ensuring the equitable share of the benefit derived from natural resources of the said Area.
Before proceeding further to the objections voiced by the developed countries over the
provisions of LOSC 1982 we need to understand the role of the International Seabed Authority
(ISA). Article 153(1) provides that activities in the Area shall be organized, carried out and
controlled by the Authority on behalf of mankind as a whole. Activities in the Area means all
activities of exploration for, and exploitation of, the resources of the Area;

Drilling,

Dredging,

Coring, and

Excavation.

It is to be noted that processing, namely the process through which metals are extracted from the
minerals and transportation is excluded from activities in the Area. The deeper understanding of
the role of ISA is beyond the scope of this essay therefore at this point I will only keep to
explaining their basic roles as already stated.
Moving unto the implementation of the 1994 Agreement with concern to Part XI of UNCLOS
III, most of the idea of later were quite innovative, the industrialized states showed their concern
especially President Regan, who stated that, While most provisions of the draft convention are
acceptable and consistent with US interests, some major elements of the deep seabed mining
regime are not acceptable. Thus the United States voted against the Convention and did not
sign it. Other industrialized States abstained and did not ratify the Convention. As a
consequence, it became apparent that apart from Iceland, all States Parties to the Convention
were developing States. The delay in the commercial exploitation of deep seabed resources and

economic moves towards market-oriented approaches at the global level also encouraged States
to reconsider Part XI.
Before the implementation there were few points that had to be kept in mind. Such as;

The provisions of the Implementation Agreement and Part XI of the LOSC are to be
interpreted and applied as a single instrument.

Article 2, sub article 1 states that in case of any inconsistency between the 1994
Agreement and Part XI, the provisions of the former shall prevail.

Article 4, sub article 1, states that, after the adoption of the 1994 Agreement, any
instrument of ratification or formal confirmation of or accession to the Convention shall
also represent consent to be bound by the 1994 Agreement.

Article 4, sub article 2, states that, no State or entity may establish its consent to be bound
by the 1994 Implementation Agreement unless it has previously established or establishes
at the same time its consent to be bound by the Convention.
Moving unto the objections voiced by the developed states over the Provisions of the part
XI of the 1982 agreement; Part XI of LOST 1982 provided a regime relating to minerals
on the seabed outside any states territorial waters or EEZ, the International Seabed
Authority (ISA) was established to authorize seabed exploration, mining, and collect and
distribute the seabed mining royalty. The framework governing the Area under LOST
1982 was strongly objected by some industrial states, including the United States. Thus
the outcome; United States voted against the Convention and did not sign it, other
industrialised states abstained and did not ratify the Convention, leaving it to become
apparent (apart from Iceland) all states parties to the Convention were developing states.
Eventually major industrialised states enacted unliteral domestic legislation in relation to
deep seabed mining: United States (1980), United Kingdom (1981), Federal Republic of
Germany (1980), France (1981), Japan (1982), USSR (1982), and Italy (1985). In 1984,
eight industrialised states concluded the Provisional Understanding Regarding Deep
Seabed Matters in order to avoid overlapping in deep seabed operations. The situation
caused growing concerns because of the serious risk of damaging the unity and
universality of the deep seabed regime established in Part XI and the LOSC as a whole.
Being against the situation, in 1990, UN Secretary-General Javier Cullar initiated
informal consultation in order to meet the specific objections of the developed States,
from 1990 to 1994 convening 15 meetings. In July 1994, the UN General Assembly
adopted the Implementation Agreement and the resolution passed with a vote of 121 in
favour, none against, and 7 abstentions. Along the Preamble, the Implementation
Agreement is composed of ten Articles and an Annex which is divided into nine sections.
Despite being named the Implementation Agreement, it modifies the original regime of
Part XI of the LOSC with major changes like the costs to States Parties and institutional
Agreement, the approval procedure for an exploration plan, the Enterprise, decision-

making, the review conference, transfer of technology, production policy, the financial
terms of contacts, the establishment of a finance committee, and economic assistance.
Firstly cost effectiveness; the obligation of States Parties to fund one mine site of the
Enterprise as provided for in Annex IV, Article 11(3) shall not apply in light of the delay
in commercial production of mineral resources in the Area. Further to this, States Parties
are not required to finance any of the operations in any mine site of the Enterprise or
under its joint venture arrangements by virtue of section 2(3). The obligations applicable
to contractors shall also apply to the Enterprise under section 2(4). As a consequence, the
Enterprise lost its original advantageous position. The Authority shall not exercise the
power to borrow funds to finance its administrative budget provided in Article 174(1) of
the LOSC. On the other hand, a Finance Committee, which is composed of fifteen
members, was established in section 9(1).
Secondly, the Market Oriented Approaches; In terms of production policies, to prevent
adverse effects on the economies of developing countries which produce and export the
mineral to be mined from the Area, Article 151 of the LOSC provided for production
limitation. However, the industrialized States opposed the limitation of seabed production
because it would deter the development of the exploitation of deep seabed mineral
resources. This was dis-applied by section 6(7) of the Implementation Agreement. In
terms of Financial Terms of Contracts; Article 13(2) of Annex III of the LOSC required
that a fee be levied for the administrative cost of processing an application for approval
of a plan of work in the form of a contract and fixed it at an amount of US$500,000 per
application. However, the industrialised countries considered that the financial terms of
the contract were too onerous. The Implementation Agreement thus halves the application
fee for either the exploration or exploitation phase to US$250,000 in accordance with
section 8(3). The detailed financial obligations of miners set out in Article 13(3) to (10)
of Annex III were deleted by section 8(2) of the Implementation Agreement to reduce
burden on the contractor. In terms of transfer of technology; Article 5 of Annex III of the
LOSC provided mandatory transfer of technology to the Enterprise. However, this
obligation was unacceptable to the industrialised States because compulsory transfer of
technology was considered prejudicial to intellectual property rights and this requirement
would introduce a bad precedent. Therefore, it was dis-applied by section 5(2) of the
Implementation Agreement.
In terms of economic assistance, In order to assist developing countries, section 7(1) of
the Implementation Agreement provides that the Authority shall establish an economic
assistance fund from a portion of the funds of the Authority which exceeds those
necessary to cover the administrative expenses of the Authority; and that economic
assistance to developing land-based producer States shall be provided from the fund of
the Authority.
Thirdly decision making; Originally the Assembly was considered as the supreme organ
of the Authority establishing general policies under Article 160(1) of the LOSC.
However, section 3(2) of the Implementation Agreement introduced a consensus

procedure. If all efforts to reach a decision by consensus have been exhausted, decisions
by voting in the Assembly are to be taken by a majority of members present and voting,
and decisions on questions of substance are to be taken by a two-thirds majority of
members present and voting, as provided for in Article 159(8) of the LOSC (section
3(3)). Moreover, Article 161(8)(b) and (c) of the Convention shall not apply. Instead,
section 3(5) introduced a collective-veto system, by providing that:
If all efforts to reach a decision by consensus have been exhausted, decisions by voting in
the Council on questions of procedure are to be taken by a majority of members present
and voting, and decisions on questions of substance, except where the Convention
provides for decisions by consensus in the Council, shall be taken by a two-thirds
majority of members present and voting provided that such decisions are not opposed by
a majority in any one of the chambers referred to in paragraph 9.
Finally It provided with a review of the conference; Article 155 of the LOSC provided
procedures relating to the conference for the review of those provisions of Part XI and the
relevant Annexes. In the consultations, however, several industrialised States, including the
United States, cast doubt on the validity of this procedure. Section 4 of the Implementation
Agreement thus provides that Articles 155(1), (3) and (4) of the LOSC shall not apply.
In conclusion, As at 23 November 1994, the Agreement still fell far short of satisfying the criteria
for entry into force and will clearly not do so until the industralized States ratify the Agreement.
However, it is known that the constitutional processes which must precede ratification are
already under way in many of these countries. Moreover, some indication of their intentions may
be gleaned from their voting record on General Assembly Resolution 48/263, adopting the
Agreement, and their stance in relation to the provisional application of the Agreement; As has
been seen, Article 7 of the Agreement provided that, if it had not entered into force by 16
November 1994, it would be applied provisionally, as from that date, by four categories of
States:
(i)

States consenting to the adoption of the Agreement, unless opting out before 16
November 1994. Of the 120 entities (119 States and the European Community) which
consented to the adoption of the Agreement by voting in favour of Resolution 48/263,
five States notified the depositary that they would not apply the Agreement
provisionally, two indicated that they would not do so 'until further notice', and four
States and the European Community informed the depositary that they would so
apply it only 'upon notification'. Following further action by some of these states,
however, the position as at 23 November 1994 was that 10 States (Brazil, Cyprus,
Denmark, Ireland, Morocco, Poland, Portugal, Spain, Sweden and Uruguay) had
indicated that they would not apply the Agreement provisionally. The remaining 109
States and the European Community were accordingly bound to apply the Agreement
provisionally. Of the 13 States eligible to apply for pioneer investor registration, all
but Russia (which abstained) voted in favour of the Resolution, and are now applying
the Agreement provisionally. It will be noted that they include the three principal
industrialized States which declined to sign the UN Convention and established the

(ii)

(iii)

(iv)

alternative Reciprocating States regime, Germany, the United Kingdom and the
United States.
Signatories Of the 69 entities which had signed the Agreement by 23 November 1994,
7 States had indicated on signature that they would not apply the Agreement
provisionally and a further 6 States and the European Community had indicated that
they would not do so until further notice or until notification. Three of the latter
(Denmark, Poland and Spain) later confirmed that they would not apply the
Agreement provisionally and the remaining 4 (European Community, France, Italy
and Japan) later notified the depositary that they would apply the Agreement
provisionally. The remaining 'no's' are Brazil, Cyprus, Denmark, Ireland, Morocco,
Poland, Portugal, Spain, Sweden and Uruguay. Most of the States qualifying under
this category will already qualify under (i) above. There are, however, a few
signatories such as Barbados, Guinea, Mauritius and Switzerland, for which no vote
is recorded on Resolution 48/263.
States consenting to provisional application by so notifying the depositary. As at 23
November 1994, such notifications had been received from the European Community,
France, Italy and Japan, all of which had kept their options open at the time of
signature.
States acceding to the Agreement. As at 23 November 1994, no such accessions had
been received.

References:
Journal : The 1994 Agreement on the Implementation of Part Xl of the UN
Convention on the Law of the Sea: breakthrough to universality? By E.D Brown
AGREEMENT RELATING TO THE IMPLEMENTATION OFPART XI OF THE CONVENTION
Full text
http://www.un.org/depts/los/convention_agreements/texts/unclos/closindxAgree.htm