142
therefore hardly surprising that the majority of the participating States to the Third
United Nations Conference on the law of the sea regarded the Maltese proposal with
suspicion.
16
Some of them extensively influenced the process of negotiation and
their firm refusal to accept the text adopted by the UN General Assembly in 1982 de
facto prevented the entry into force of the Convention in the next 12 years.
What seems to be clear from a legal point of view is that, on one side, in the narrow frame of that treaty developed countries would not have been able to establish
a practice inspired by the principles of market economy by promoting or addressing
the formation of customary rules whose content is in this context more than in others heavily influenced by States having the capacity to effectively explore and, in a
foreseeable future, exploit the resources of the deep seabed. On the other side, western countries were confident that the adoption of the original text without their vote
would have downgraded this important and innovative part of the Convention to a
mere political statement.
In order to overcome the opposition of western countries, the 1994 Implementation
Agreement
17
remarkably modified the rules on decision-making process of the
International Seabed Authority (hereinafter ISA), reducing the powers of the
Assembly in favour of the Council,
18
as well as the legal regime for the exploration
and exploitation of the Area. From the first point of view the major change is represented by the “chambering vote”
19
procedure, which confers upon developed States
a veto power with regard to many of the important decisions that the Authority is
called upon to take for the implementation of the legal regime of the Area.
20
In fact,
except when the procedure by consensus is mandatory,
21
decisions on questions of
substance are taken with a majority of two-thirds of the members present and voting, provided that there is no opposition by the majority of the members within any
single group of States elected according to paragraph 15, letters a)–c), with the
16 With respect to the specific position of the United States, see Schmidt (1989).
17 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the
Law of the Sea of 10 December 1982, (New York, opened for signature 28th July 1994, entered
into force provisionally on 16th November 1994 and definitively on 28th July 1996), 1836 UNTS
3. See Anderson (1995), and Hayashi (1996).
18 If the Assembly was originally conceived as the sole body having a general competence with
regard to the policies of the Authority in the Area, in virtue of section 3(1) and (4) of the 1994
Implementation Agreement the general policies of the Authority are now established by the
Assembly in collaboration with the Council and in the exercise of concurring competences decisions are to be taken upon recommendations of the Council.
19 Wolfrum (1995) and Hipp (2006), p. 146.
20 Among the powers and functions of the Assembly it is of particular importance to mention the
approval, upon the recommendation of the Council, of the rules, regulations and procedures and
the decision on the equitable sharing of financial and other economic benefits derived from the
activities in the Area.
21 Section 3(4) of the Implementation Agreement in conjunction with Article 159(8) UNCLOS.
E. Zamuner
therefore hardly surprising that the majority of the participating States to the Third
United Nations Conference on the law of the sea regarded the Maltese proposal with
suspicion.
16
Some of them extensively influenced the process of negotiation and
their firm refusal to accept the text adopted by the UN General Assembly in 1982 de
facto prevented the entry into force of the Convention in the next 12 years.
What seems to be clear from a legal point of view is that, on one side, in the narrow frame of that treaty developed countries would not have been able to establish
a practice inspired by the principles of market economy by promoting or addressing
the formation of customary rules whose content is in this context more than in others heavily influenced by States having the capacity to effectively explore and, in a
foreseeable future, exploit the resources of the deep seabed. On the other side, western countries were confident that the adoption of the original text without their vote
would have downgraded this important and innovative part of the Convention to a
mere political statement.
In order to overcome the opposition of western countries, the 1994 Implementation
Agreement
17
remarkably modified the rules on decision-making process of the
International Seabed Authority (hereinafter ISA), reducing the powers of the
Assembly in favour of the Council,
18
as well as the legal regime for the exploration
and exploitation of the Area. From the first point of view the major change is represented by the “chambering vote”
19
procedure, which confers upon developed States
a veto power with regard to many of the important decisions that the Authority is
called upon to take for the implementation of the legal regime of the Area.
20
In fact,
except when the procedure by consensus is mandatory,
21
decisions on questions of
substance are taken with a majority of two-thirds of the members present and voting, provided that there is no opposition by the majority of the members within any
single group of States elected according to paragraph 15, letters a)–c), with the
16 With respect to the specific position of the United States, see Schmidt (1989).
17 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the
Law of the Sea of 10 December 1982, (New York, opened for signature 28th July 1994, entered
into force provisionally on 16th November 1994 and definitively on 28th July 1996), 1836 UNTS
3. See Anderson (1995), and Hayashi (1996).
18 If the Assembly was originally conceived as the sole body having a general competence with
regard to the policies of the Authority in the Area, in virtue of section 3(1) and (4) of the 1994
Implementation Agreement the general policies of the Authority are now established by the
Assembly in collaboration with the Council and in the exercise of concurring competences decisions are to be taken upon recommendations of the Council.
19 Wolfrum (1995) and Hipp (2006), p. 146.
20 Among the powers and functions of the Assembly it is of particular importance to mention the
approval, upon the recommendation of the Council, of the rules, regulations and procedures and
the decision on the equitable sharing of financial and other economic benefits derived from the
activities in the Area.
21 Section 3(4) of the Implementation Agreement in conjunction with Article 159(8) UNCLOS.
E. Zamuner