100
up for exploitation by the Enterprise once it is able to conduct commercial mining
operations, while the other part shall be allocated to the applicant. The choice between the two parts is in principle not the applicant’s prerogative but rather that of
the ISA, upon the advice of the Legal and Technical Commission.
The legal means by which it is recognised and allocated to an operator is that of
a 15-year contract, which is divided into 5-year intervals with reports on the activities conducted and the expenditure incurred, in order to prove that the operator is
serious and is following his work schedule as submitted at the time of his application. While both sets of regulations include the imposition of a fee, they differ in
the terms and conditions relating to its payment. In the case of sulphides, this is
either a fixed fee of US $ 500,000 paid once, or a fixed fee of US $ 50,000 dollars
plus, when the time comes, an annual fee calculated based on a revenue-sharing
provision for the Enterprise as a joint-venture partner. The terms of this financial
arrangement for nodules are different for reasons relating to negotiations prior to the
entry into force of the Convention.
On the basis of these two sets of regulations, an international mining law is established, liable to lead to a full-fledged mining code, which will gradually gather
legal elements on protection of the marine environment related to mining activities
in the Area. This provides a highly interesting normative perspective in terms of
the evolutions affecting stakeholders (States, mining companies, their transnational
character, NGOs). The question of the responsibility of States sponsoring an application by a mining company appears to have been sufficiently important for the
ISA to have requested an advisory opinion from the Seabed Disputes Chamber of
the International Tribunal for the Law of the Sea in Hamburg.
Requested in 2010, the opinion was issued on 1st February 2011 and concluded
that a sponsoring State has responsibilities from which it could not easily be exempt, the main reasons being based on due diligence to control the activities of the
entity it is sponsoring. This widely applies to protection of the marine environment,
but also to all the obligations incumbent upon the operator. It is true that by its very
nature, the sponsoring State’s obligation is one of conduct, but the Chamber was
careful to note that “the standard of due diligence may vary over time and depends
on the level of risk and on the activities involved”.
There is no certainty that the sponsoring State shall be exempt from responsibility by simply proving its efforts. Similarly, the level of control of due diligence
will depend on concrete situations, and this will begin by checking that the national
legal system includes laws or regulations to implement control of the operator. This
should be an objective right and not simply a contractual arrangement between
the State and the sponsored entity. It is clear that the combination of regulations,
Council decisions, recommendations and observations by the Legal and Technical Commission, together with the advisory opinion issued by the Chamber of the
Tribunal, shows the constitution of a concrete legal corpus which can only expand.
In this respect, the ISA’s competences in terms of scientific research and protection of flora and fauna will act as a driver to ensure greater efficacy of its mandate
in the Area. The continuous development of its scientific workshops associating experts from its Legal and Technical Commission with experts from academic circles
É. Jarmache
up for exploitation by the Enterprise once it is able to conduct commercial mining
operations, while the other part shall be allocated to the applicant. The choice between the two parts is in principle not the applicant’s prerogative but rather that of
the ISA, upon the advice of the Legal and Technical Commission.
The legal means by which it is recognised and allocated to an operator is that of
a 15-year contract, which is divided into 5-year intervals with reports on the activities conducted and the expenditure incurred, in order to prove that the operator is
serious and is following his work schedule as submitted at the time of his application. While both sets of regulations include the imposition of a fee, they differ in
the terms and conditions relating to its payment. In the case of sulphides, this is
either a fixed fee of US $ 500,000 paid once, or a fixed fee of US $ 50,000 dollars
plus, when the time comes, an annual fee calculated based on a revenue-sharing
provision for the Enterprise as a joint-venture partner. The terms of this financial
arrangement for nodules are different for reasons relating to negotiations prior to the
entry into force of the Convention.
On the basis of these two sets of regulations, an international mining law is established, liable to lead to a full-fledged mining code, which will gradually gather
legal elements on protection of the marine environment related to mining activities
in the Area. This provides a highly interesting normative perspective in terms of
the evolutions affecting stakeholders (States, mining companies, their transnational
character, NGOs). The question of the responsibility of States sponsoring an application by a mining company appears to have been sufficiently important for the
ISA to have requested an advisory opinion from the Seabed Disputes Chamber of
the International Tribunal for the Law of the Sea in Hamburg.
Requested in 2010, the opinion was issued on 1st February 2011 and concluded
that a sponsoring State has responsibilities from which it could not easily be exempt, the main reasons being based on due diligence to control the activities of the
entity it is sponsoring. This widely applies to protection of the marine environment,
but also to all the obligations incumbent upon the operator. It is true that by its very
nature, the sponsoring State’s obligation is one of conduct, but the Chamber was
careful to note that “the standard of due diligence may vary over time and depends
on the level of risk and on the activities involved”.
There is no certainty that the sponsoring State shall be exempt from responsibility by simply proving its efforts. Similarly, the level of control of due diligence
will depend on concrete situations, and this will begin by checking that the national
legal system includes laws or regulations to implement control of the operator. This
should be an objective right and not simply a contractual arrangement between
the State and the sponsored entity. It is clear that the combination of regulations,
Council decisions, recommendations and observations by the Legal and Technical Commission, together with the advisory opinion issued by the Chamber of the
Tribunal, shows the constitution of a concrete legal corpus which can only expand.
In this respect, the ISA’s competences in terms of scientific research and protection of flora and fauna will act as a driver to ensure greater efficacy of its mandate
in the Area. The continuous development of its scientific workshops associating experts from its Legal and Technical Commission with experts from academic circles
É. Jarmache