28
Y. Fouquet and D. Lacroix
international regime and which are based on the principle of the common heritage
of mankind laid down in article 136 of UNCLOS.
These common elements are as follows:
• the division of the area to be explored into two parts of equal estimated value,
enabling the designation of a reserved area for the ISA’s commercial entity, the
Enterprise. The ISA is thus able to develop its reserves without having to conduct
any exploration or prospecting.
• the choice, in theory, is not made by the applicant but by the ISA.
• the contract is valid for a fifteen-year period and may be extended.
• fees must be paid at the time of submitting an application. This is only the case for
sulphide contracts, the case of nodules is managed differently for historical reasons. The applicant can choose between payment of a fixed fee of US $ 500,000,
or payment of a fixed fee of US $ 50,000 dollars and, when the time comes, an
annual fee calculated based on a revenue-sharing provision for the Enterprise as
a joint-venture partner.
• the contractor’s rights are guaranteed, as is exclusivity for exploration.
The 2010 sulphides regulations and contracts granted within this framework constitute common international mining law. Those directly concerned are States Parties
to UNCLOS which, excluding the case of an application for themselves, must grant
sponsorship to all entities, whether public or private, that apply for their sponsorship. This State sponsorship calls for careful examination as the ISA has submitted
a request for an advisory opinion to the International Tribunal for the Law of the Sea
in Hamburg on the question of the responsibility of such a State in the case of default of the sponsored entity. Dispute over the contractor’s obligations and dispute
over environmental damages are liable to be the focus of the analysis by ITLOS.
The role of the LTC is to provide an opinion on the application. It must, in particular, ensure that the application is respectful of the marine environment and does not
hinder navigation or fishing. The role of the Council is well defined as the decisionmaking body that grants approval. Application rejection is an exceptional case, because it requires a qualified vote, the conditions of which are difficult to meet. China,
in May 2010, and Russia, in January 2011, submitted exploration applications and
there is little chance of these applications being rejected, as they are not in competition; the first is located in the Indian Ocean and the second in the Atlantic Ocean.
Future Prospects
By acting in this way, with a rapid procedure that overcomes obstacles which could
be raised by conflicts due to overlapping sectors, the ISA intends to give an image
of efficiency and sound governance, in concordance with the renewed legitimacy
perceived in international bodies as soon as resources of areas beyond national jurisdiction are addressed. This reveals an avenue that a certain number of States
Parties to UNCLOS fully intend to explore for deep-sea genetic resources when the
time comes.
Y. Fouquet and D. Lacroix
international regime and which are based on the principle of the common heritage
of mankind laid down in article 136 of UNCLOS.
These common elements are as follows:
• the division of the area to be explored into two parts of equal estimated value,
enabling the designation of a reserved area for the ISA’s commercial entity, the
Enterprise. The ISA is thus able to develop its reserves without having to conduct
any exploration or prospecting.
• the choice, in theory, is not made by the applicant but by the ISA.
• the contract is valid for a fifteen-year period and may be extended.
• fees must be paid at the time of submitting an application. This is only the case for
sulphide contracts, the case of nodules is managed differently for historical reasons. The applicant can choose between payment of a fixed fee of US $ 500,000,
or payment of a fixed fee of US $ 50,000 dollars and, when the time comes, an
annual fee calculated based on a revenue-sharing provision for the Enterprise as
a joint-venture partner.
• the contractor’s rights are guaranteed, as is exclusivity for exploration.
The 2010 sulphides regulations and contracts granted within this framework constitute common international mining law. Those directly concerned are States Parties
to UNCLOS which, excluding the case of an application for themselves, must grant
sponsorship to all entities, whether public or private, that apply for their sponsorship. This State sponsorship calls for careful examination as the ISA has submitted
a request for an advisory opinion to the International Tribunal for the Law of the Sea
in Hamburg on the question of the responsibility of such a State in the case of default of the sponsored entity. Dispute over the contractor’s obligations and dispute
over environmental damages are liable to be the focus of the analysis by ITLOS.
The role of the LTC is to provide an opinion on the application. It must, in particular, ensure that the application is respectful of the marine environment and does not
hinder navigation or fishing. The role of the Council is well defined as the decisionmaking body that grants approval. Application rejection is an exceptional case, because it requires a qualified vote, the conditions of which are difficult to meet. China,
in May 2010, and Russia, in January 2011, submitted exploration applications and
there is little chance of these applications being rejected, as they are not in competition; the first is located in the Indian Ocean and the second in the Atlantic Ocean.
Future Prospects
By acting in this way, with a rapid procedure that overcomes obstacles which could
be raised by conflicts due to overlapping sectors, the ISA intends to give an image
of efficiency and sound governance, in concordance with the renewed legitimacy
perceived in international bodies as soon as resources of areas beyond national jurisdiction are addressed. This reveals an avenue that a certain number of States
Parties to UNCLOS fully intend to explore for deep-sea genetic resources when the
time comes.