144
Over the last 20 years the ISA has exercised its powers in a balanced way.
27
Most
of its efforts were initially dedicated to the elaboration of operational and working
rules necessary for the existence of the Authority as an independent organization.
28
At a later stage, it focused on the conclusion of contracts with previously registered
pioneer investors
29
and, between 2000 and 2012, on the adoption of the “Mining
Code”.
30
Notwithstanding its unarguable importance in view of the implementation
of the principle of the common heritage of mankind
31
it must be stressed that none
of the regulations which constitute the Mining Code have been able to boost its
underlying development-oriented nature, since the Authority has strictly adhered to
the principle of attribution, avoiding the establishment of a preferential regime that
is expressly forbidden (with very limited exceptions) by Article 152 UNCLOS. That
provision prohibits all forms of discrimination by the Authority in the exercise of its
powers and functions and allows a departure from this principle in order to grant a
special consideration for developing countries to the extent that it is specifically
provided in the Convention.
32
Whilst it is undeniable that this provision represents a major obstacle to the
development-oriented implementation of the principle of the common heritage of
mankind by the Authority, it is also true that this limit is not applicable by analogy
to the interpretation of the principle outside the limited scope of application of this
provision. In particular, as it will be shown in the following paragraphs, it is far from
certain its applicability to the rules on responsibility and liability of States sponsoring persons and entities with respect to activities in the Area.
27 For a survey of the activities of the ISA in this respect see Lévy (2014), pp. 26–42.
28 See Wood (1997).
29 The Pioneer investor regime was issued by the Preparatory Commission for the International
Seabed Authority and for the International Tribunal for the Law of the Sea in accordance with resolution II, para. 11(a), of the Third United Nations Conference on the Law of the Sea. See also Virzo
(2016).
30 The term Mining code indicates three different regulations: Regulations on Prospecting and
Exploration of Polymetallic Nodules in the Area, ISBA/6/A/18 (4th October 2000). For the updated
text see ISBA/19/C/17 (22nd July 2013); Regulations on Prospecting and Exploration for
Polymetallic Sulphides in the Area. ISBA/16/A/12/Rev.1 (7th May 2010); Regulation on
Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area. ISBA/18/A/11
(27 July 2012). On 8th August 2017 the Authority approved the Draft Regulations on Exploitation
on Mineral Resources of the Area”, ISBA/23/LTC/CRP.3*.
31 See Lodge (2013), p. 136.
32 “The Authority shall avoid discrimination in the exercise of its powers and functions, including
the granting of opportunities for activities in the Area. 2. Nevertheless, special consideration for
developing States, including particular consideration for the land-locked and geographically disadvantaged among them, specifically provided for in this Part shall be permitted”.
E. Zamuner
Over the last 20 years the ISA has exercised its powers in a balanced way.
27
Most
of its efforts were initially dedicated to the elaboration of operational and working
rules necessary for the existence of the Authority as an independent organization.
28
At a later stage, it focused on the conclusion of contracts with previously registered
pioneer investors
29
and, between 2000 and 2012, on the adoption of the “Mining
Code”.
30
Notwithstanding its unarguable importance in view of the implementation
of the principle of the common heritage of mankind
31
it must be stressed that none
of the regulations which constitute the Mining Code have been able to boost its
underlying development-oriented nature, since the Authority has strictly adhered to
the principle of attribution, avoiding the establishment of a preferential regime that
is expressly forbidden (with very limited exceptions) by Article 152 UNCLOS. That
provision prohibits all forms of discrimination by the Authority in the exercise of its
powers and functions and allows a departure from this principle in order to grant a
special consideration for developing countries to the extent that it is specifically
provided in the Convention.
32
Whilst it is undeniable that this provision represents a major obstacle to the
development-oriented implementation of the principle of the common heritage of
mankind by the Authority, it is also true that this limit is not applicable by analogy
to the interpretation of the principle outside the limited scope of application of this
provision. In particular, as it will be shown in the following paragraphs, it is far from
certain its applicability to the rules on responsibility and liability of States sponsoring persons and entities with respect to activities in the Area.
27 For a survey of the activities of the ISA in this respect see Lévy (2014), pp. 26–42.
28 See Wood (1997).
29 The Pioneer investor regime was issued by the Preparatory Commission for the International
Seabed Authority and for the International Tribunal for the Law of the Sea in accordance with resolution II, para. 11(a), of the Third United Nations Conference on the Law of the Sea. See also Virzo
(2016).
30 The term Mining code indicates three different regulations: Regulations on Prospecting and
Exploration of Polymetallic Nodules in the Area, ISBA/6/A/18 (4th October 2000). For the updated
text see ISBA/19/C/17 (22nd July 2013); Regulations on Prospecting and Exploration for
Polymetallic Sulphides in the Area. ISBA/16/A/12/Rev.1 (7th May 2010); Regulation on
Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area. ISBA/18/A/11
(27 July 2012). On 8th August 2017 the Authority approved the Draft Regulations on Exploitation
on Mineral Resources of the Area”, ISBA/23/LTC/CRP.3*.
31 See Lodge (2013), p. 136.
32 “The Authority shall avoid discrimination in the exercise of its powers and functions, including
the granting of opportunities for activities in the Area. 2. Nevertheless, special consideration for
developing States, including particular consideration for the land-locked and geographically disadvantaged among them, specifically provided for in this Part shall be permitted”.
E. Zamuner