Wide limits and “equitable”; distribution of seabed resources

Abstract

This article discusses some drawbacks of a universally applicable 200‐mile limit for seabed resources in terms of the artificial nature of this limit, the jeopardy to the proposed international regime to govern deep seabed resources, and the views of land‐locked and shelf‐locked countries. Given the uncertain political acceptability of a 200‐mile limit, a systems approach is suggested as a means of devising a compromise solution that would maximize the objectives of: respect of existing internationally agreed conventions; promotion of the rational development of deep seabed resources; provision of equitable distribution of seabed resources and provision of acceptable benefits to all major groups of countries. One possible solution would be to have the limit of coastal jurisdiction over seabed resources defined in terms of the continental margin coupled with a system for sharing the “take”; in the area between 12 miles and the limit of the margin. The share payable to the international seabed authority would increase progressively with the distance of exploitation from the coast but would be moderated by the relative income level of the coastal State.     

Deep seabed mining: Can an acceptable regime ever be found?

Abstract

Fourteen years of effort by the Third United Nations Conference on the Law of the Sea and its predecessors have so far failed to produce a generally acceptable regime for deep seabed mining. The present Draft Convention does contain ingenious solutions to the problems created by the unique characteristics of seabed resources, the lack of existing international law governing their exploitation, the influence of the navigation provisions, and the need to reconcile the financial requirements of miners with the expectations of developing countries. It is a remarkable achievement in view of the negotiating obstacles that had to be overcome, but the regime is cumbersome and expensive. Further improvements in the interest of simplification will have to be made if it is to be workable.     

The United States and the revision of the 1982 convention on the law of the sea

Abstract

It may now be possible to breach the 1982 Law of the Sea Convention impasse. The UN Secretary‐General's informal consultations have opened realistic discussions on the deep seabed regime. Many important changes have occurred since the Convention was signed. Dramatic developments have taken place in the international community. Nations now appreciate the limited potential of deep seabed mining. While United States reliance on customary law provides some benefits, other more important U.S. interests cannot be protected absent entry into force of the Convention with widespread participation. Many alternative procedures are available to forge an accommodation. The approach taken in the Secretary‐General's consultations is to make specific changes in deficient articles. Alternatively, the present regime might be jettisoned in favor of a framework regime. Such a regime would preserve only the essential basic policies of the Convention's seabed regime. It would contain a system for constructing a viable mining system if a deep seabed regime is needed.     

Ocean mineral revenue sharing

Abstract

This article considers the importance of ocean mineral revenue sharing, from both the oil and gas of the continental margin and the manganese nodules of the deep seabed, at the United Nations Law of the Sea Conference. First the paper examines margin revenue sharing as proposed in Article 82, Informal Composite Negotiating Text. It estimates the amount of oil and gas in offshore areas, the potential value of these resources to the coastal state, the potential revenue to be shared with an international authority, and when these resources will be exploited. The paper concludes that revenue sharing from the margin will yield little if any revenue to an international authority. The article then discusses deep seabed revenue sharing. It estimates several possibilities, including nodule production by the mid‐1980s; the value of operations to the exploiting state(s)—particularly the United States; revenues to be shared with an international authority; the impact of nodule mining on land‐based producers of seabed minerals; and the uses of revenue sharing funds by an international authority. The paper concludes that revenue sharing will not exert much influence on negotiations at the United Nations Law of the Sea Conference.     

The offshore jurisdiction of the states of the United States and the provinces of Canada—A comparison

Abstract

The coastal state has jurisdiction over the resources located in the seas and seabed adjacent to its coast. In federal states the question has arisen as to whether the rights in those resources are to be held by the national government or by the subsidiary territorial governments. It has been the focus of political activity and court litigation in the United States and Canada. This paper reviews in detail the status of the offshore claims of the states of the United States and the provinces of Canada. In delimiting these boundaries two systems of law have become relevant—modern public international law and historic common law. Both systems of law have advantages and disadvantages for the courts and interested parties. While the United States has chosen a route that relies very heavily on modern public international law, the Canadian situation is less clear. Litigation now in progress may resolve this issue in Canada by court decree unless a political settlement is reached first. A recent agreement between the Federal Government of Canada and the Gov eminent of Nova Scotia which calls for joint management and revenue sharing may point the way toward such a settlement.     

UNCLOS III and the new international economic order

Abstract

The New International Economic Order has become an all pervasive issue in contemporary international relations and is being discussed, debated, and considered in a number of international organizations and negotiations. Representatives of the Third World have demanded under its banner significant changes in the world's political and economic structure. It is in this context that the Third United Nations Conference on the Law of the Sea has been meeting.

This study focuses upon the protracted negotiations on seabed mining and seeks to relate continuing North‐South differences to broader trends in international relations. It examines, in light of pressures for a New International Economic Order, disagreements relative to: a) access to seabed resources, b) the resource and commodity policy of the proposed International Sea‐Bed Authority, c) financial arrangements for deep seabed mining, d) transfer of technology, and e) the organizational structure of the International Sea‐Bed Authority.     

Effective Protection of the Marine Environment and Equitable Benefit Sharing in the Area: Empty Promises or Feasible Goals?

abstract

The international legal framework with regard to “the Area,” comprising the deep seabed and the subsoil beyond the boundaries of national jurisdiction, has been modified significantly through the years. It was first established by part XI of the United Nations Convention on the Law of the Sea, but the 1994 Implementation Agreement introduced several changes. These general rules and principles are further developed in the “Mining Code,” referring to the comprehensive set of regulations and procedures issued by the International Seabed Authority. The Authority has already produced rules for the first phases of mining activities (prospecting and exploration) in the Area, but has yet to adopt exploitation regulations. Nevertheless, the most recent draft of the exploitation regulations provides a good indication of the current state of play. This article analyzes the current draft of the exploitation regulations, which will shape the future deep seabed mining regime, in order to evaluate whether the relevant provisions are sufficient and effective to attain two prominent goals with regard to the Area: the protection of the marine environment and the equitable sharing of financial and economic benefits. The Law of the Sea Convention indeed states that the resources of the deep seabed are considered common heritage of mankind and prioritizes these objectives. Therefore, the exploitation regulations should strike an appropriate balance between commercial exploitation, environmental protection, and the interests of developing countries. The strengths and weaknesses of this document and the overarching international legal framework are identified and possible corrections are suggested.     

The effect of extended coastal state jurisdiction over the seas and seabed upon marine science research

Abstract

UNCLOS III is a revolution not only in international law and the law of the sea, but also in the relationships between the North (developed world) and the South (developing world). New concepts such as the “Common Heritage of Mankind”; and the “Exclusive Economic Zone”; are being developed along with such new institutions as the International Seabed Authority. The Third World, numbering about 122 states, has been in the forefront of this revolution at UNCLOS III, and in the collateral effort to develop a New International Economic Order. The exploitation of the manganese/polymetallic nodules on the surface of the deep seabed has been a major focus of UNCLOS III, and the positions of the Group of 77 (Third World), the Soviet Union and Eastern Europe (Second World), and the United States, Western Europe, and Japan (First World), are carefully set forth and compared in this article. The differences between the three positions are substantial. It is hoped, however, that a workable system for exploiting the deep seabed and sharing its wealth can be found.     

New concepts in the law of the sea

Abstract

Current ocean law negotiations reflect conflicts between two old and competing approaches: the view that the coastal state should control activities in any large adjacent ocean area, and the view that most of the ocean should be left open to the free use of all nations. Both approaches are laissez‐faire, leave the distribution of benefits to arbitrary factors, and are based on national exclusivity. In the negotiations this conflict is exhibited in competing claims regarding navigation, mineral resources, fishing, environmental protection, and strategic uses. A possible resolution has emerged in the concept of the whole ocean as a common resource of humankind, according to which no individual state has a right to benefit from the ocean except pursuant to arrangements sanctioned by the community, and rights to benefit are determined not arbitrarily but by membership in the community. The regime now likeliest to be produced by such an approach includes (1) a narrow territorial sea and various navigation guarantees, (2) a wide coastal band coupling coastal state managerial functions with permanent international prerogatives, and (3) purely international manage‐ment of the deep seabed.     

Brazil at the third United Nations conference on the law of the sea

Abstract

As Brazil began to emerge as a major power in the years leading up to theThird United Nations Conference on the Law of the Sea (UNCLOS III), national ocean policy came to have a quite continuous, distinctive impact on global law of the sea negotiations. Brazil's participation at UNCLOS III offers a particularly good vantage point from which to analyze its more prominent international role as an emerging major power, its related growth as a maritime power, and its significant contribution to international organization.

UNCLOS III, in turn, affects Brazil. The broad implications of the emerging ocean order for both national and international jurisdiction issues, within which Brazilian ocean policy must operate, are analyzed. Brazil's distinctive position as an emerging power between the industrialized countries and the Third World has conditioned its involvement at UNCLOS III. As a developing state, Brazil has favored revision of the traditional order for the purpose of redressing the balance with the developed states. At the same time, as an emerging power, Brazil has an interest in supporting a stable, open international order. In spite of such policy dilemmas, Brazil stands out as one of the few big potential winners in the Third World from both the seabed and non‐seabed portions of the law of the sea negotiations.     

Submarine Communications Cables and Law of the Sea: Problems in Law and Practice

Submarine communications cables laid on the seabed of the ocean are the foundation of the world's international telecommunications network. International law, in particular, the law of the sea, has recognized the freedom to lay submarine cables and perform associated operations and has placed certain obligations on states related to the protection of submarine cables. This article examines the international law with respect to submarine cables and discusses the various problems with both the law and state practice on submarine cables. It argues that these problems are illustrations of the traditional challenges that face the law of the sea; that is, the balancing and accommodation of competing uses of ocean space. It concludes that an important step toward resolving these problems is enhanced consultation and cooperation between cable companies and governments and that efforts should focus on creating such mechanisms.     

United States policy on international straits

Abstract

United States policy on international straits is dictated by the vital importance to U.S. national security interests of unimpeded commercial and military transit through, over, and under sea lines of communication. Although perceived flaws in the deep seabed mining regime of the 1982 Law of the Sea Convention precluded U.S. signature or ratification of that document, the United States considers that the navigational articles of the convention reflect customary international law. Accordingly, U.S. policy on international straits is premised on recognition of and respect for the balance of interests set forth in the navigational articles of the 1982 Law of the Sea Convention.     

Canada and Arctic Politics: The Continental Shelf Extension

This article challenges the validity of the commonly held assumption that Canada and other Arctic countries are engaged in a highly competitive scramble to stake claims for extensions to their continental shelves beyond 200 nautical miles, and that Canada may lose out because it is lagging behind in this race to claim as many seabed resources as possible. It argues that the process is orderly; that, under international law, Canada already has sovereign rights over the continental shelf beyond 200 nautical miles; that the process is generally characterized by cooperation; and that the timing of various countries’ submissions to the Commission on the Limits of the Continental Shelf will not be a key determinant of success.     

The new law of the sea: Rethinking the implications for sovereign jurisdiction and freedom of action

This article examines the effects of the 1982 UN Convention on the Law of the Sea on sovereign jurisdiction and freedom of action in key sea zones covered under this Convention for coastal, noncoastal, and landlocked states pursuant to the modifications contained in the 1994 Implementation Agreement. In order to determine whether or not the treaty increases, decreases, or has no effect on state sovereign‐jurisdiction and freedom of action in the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the archipelagic regime, international straits, the high seas, and the deep seabed, the rights and duties of states set forth in this Convention are compared with those previously recognized in the 1958 Geneva Law of the Sea Conventions, state practice, and other sources of international law.     

我国深海微生物资源研发现状、挑战与对策

深海具有多种复杂独特的生境,蕴藏着极为丰富的物种多样性,被公认为未来重要的基因资源来源地,具有巨大的应用开发潜力。目前,深海微生物资源已成为国家重要的战略资源储备,也是各国海洋战略的核心关注点。预计在未来20年内,深海微生物资源将在多个领域得到产业化应用。我国在历时近二十年的深海微生物资源采探中,已分离鉴定并规范保藏大洋来源的菌株9 376株,分属于1 443个种444个属,实现了一定的资源积累,并快速提升了知识产权拥有量。但是,随着深海微生物资源获取和开发活动的快速发展,联合国大会"养护和可持续利用国家管辖范围以外海域的生物多样性"谈判进程趋紧,我国深海微生物资源领域依然存在采样区域较为局限、绝大多数微生物难以培养、资源量有待扩容、产业化推进机制缺失、知识产权占有量不足等问题。因此,本文认为应从加强政策引导、强化资源库的基础建设、建立产学研一体化机制、增强国际合作几个方面入手,实现我国深海生物资源产业由"跟跑者"到"领跑者"的跨越。     

Japan and deep seabed mining

Abstract

Japan holds a unique position among potential deep seabed mining states. This paper describes this uniqueness and identifies four possible factors that the author believes have influenced the shaping of Japan's policy. These factors are: the importance of the use of oceans and a stable legal order, the near‐total dependence on imports of the four mineral resources which are contained in manganese nodules, the need to cooperate with Western industrialized countries, and the traditional close ties between the government and private industry. The paper then examines the past and current developments regarding Japan's involvement in deep seabed affairs from the perspectives provided by these four salient facts. The author concludes by expressing the hope that current differences in the positions of potential mining states will be reconciled as actual deep seabed exploitation becomes more of a reality.     

《生物多样性公约》对遗传资源国际交流政策的影响

《生物多样性公约》于1992年在巴西里约热内卢签订,1993年生效。该公约提出了“国家对生物遗传资源拥有主权、获取生物遗传资源须事先得到资源所有者的知情同意、利用生物遗传资源所产生的利益应由资源所有者和开发者公平分享”三项基本原则,其生效与实施促进了各国生物多样性保护的立法行动,在维护资源原产国利益方面发挥了积极的作用,同时也给遗传资源的国际交流增添了一些障碍。本文介绍了《生物多样性公约》中有关生物遗传资源获取和利益分享的条款及其对国际交流政策的影响,并提出了加强遗传资源国际交换的对策和建议。     

Nuclear waste management activities in the pacific basin and regional cooperation on the nuclear fuel cycle

Abstract

Pacific Ocean and island sites have been used since World War II for nuclear activities, including effluent discharges from nuclear facilities, sea dumping of packaged radioactive wastes, and testing of nuclear explosives. In the future, the amounts of radioactive wastes deliberately released into the Pacific Ocean may increase in connection with planned commercial‐scale nuclear fuel reprocessing operations, recommencement of plutonium production for weapons purposes, and resumption of sea dumping of low‐level wastes. Proposed storage of spent nuclear fuel on Pacific island sites or disposal of high‐level wastes in the deep seabed of the Pacific could also expose the ocean to a risk of contamination by long‐lived radio‐nuclides. The consequences of all these activities should be assessed in practical terms—their likely effects on the living marine resources of the Pacific and the economic development of the societies benefited by them; in terms of the legal principles which govern activities such as marine radioactive waste disposal that could pollute the marine environment; and in relation to current and future organizational arrangements that could achieve political resolution of outstanding international nuclear energy issues. Despite the prospective dangers of marine nuclear activities, the use of relatively remote or extraterritorial marine locations including those in the Pacific basin for nuclear operations could provide a basis for international cooperation on management of the “back end”; of the nuclear fuel cycle, including storage and reprocessing of spent fuel and high‐level waste disposal. A broadly recognized international regime for the nuclear fuel cycle could be based on regional organization of such back‐end operations, provided local acceptance could be obtained.     

Foreign Access to Shared Marine Genetic Materials: Management Options for a Quasi-Fugacious Resource

Marine genetic resources are increasingly being targeted as a source of drugs and other biotechnological uses. Many of these resources are located in tropical coral reef areas within the jurisdictional control of one or more developing nations. Unlike traditional marine living resources, genetic resources are not exploited for their properties as physical substances, but as sources of information. The current international regulatory regime governing access to marine genetic resources is the traditional rule of capture, which provides that ownership of natural resources coming from a common source of supply is recognized once it has been reduced to dominion and control. This contribution contends that the rule of capture coupled with exclusive access agreements and strong global intellectual property protections create a legal environment that is inequitable, economically and biologically inefficient, and ripe for international discord. This contribution advocates an alternative regulatory model that is similar, in many respects, to the more cooperative approaches used to manage transboundary fugacious resources such as liquid oil and gas, international water resources, and migratory wildlife.­