(a) Scope of ‘Activities in the Area’
The next issue to be examined involves a specific mechanism for promoting the benefit of mankind as a whole. In this regard, Article 153(1) provides that activities in the Area shall be organised, carried out and controlled by the Authority on behalf of mankind as a whole. ‘Activities in the Area’ means all activities of exploration for and exploitation of the resources of the Area. According to the Seabed Disputes Chamber of ITLOS, the expression ‘activities in the Area’, in the context of both exploration and exploitation, includes,
first of all, the recovery of minerals from the seabed and their lifting to the water surface. More specifically, the Seabed Disputes Chamber made clear that ‘activities in the Area’ include: drilling, dredging, coring and excavation; disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents; and construction and operation or maintenance of installations, pipelines and other devices related to such activities. The evacuation of water from the minerals and the preliminary separation of materials of no commercial interest, including their disposal at sea, are deemed to be covered by the expression ‘activities in the Area’. However, processing, namely the process through which metals are extracted from the minerals and transportation, and transportation to points on land from the part of the high seas superjacent to the part of the Area in which the contractor operates are excluded from ‘activities in the Area’.
(b) Structure of the International Seabed Authority
The International Seabed Authority is an international organisation governing the Area and activities there. All States Parties to the LOSC are ipso facto members of the Authority. The Authority sits in Jamaica and comprises three principal organs, that is to say, an Assembly, a Council and a Secretariat. In addition, it has its operational organ, i.e. the Enterprise.
The Assembly, which consists of all the members of the Authority, is the supreme organ of the Authority to which the other principal organs shall be accountable as specifically provided for in the LOSC. The Assembly is entitled to establish general policies on any question or matter within the competence of the Authority.
The Council, which consists of thirty-six members of the Authority, is the executive organ of the Authority. Each member of the Council shall be elected for four years. The Council is empowered to establish the specific policies to be pursued by the Authority on any question or matter within the competence of the Authority.
The Secretariat of the Authority comprises a Secretary-General and such staff as the Authority may require. In the performance of their duties, the Secretary-General and the staff shall not seek or receive instructions from any government or from any other source external to the Authority. They shall refrain from any action which might reflect on their position as international officials responsible only to the Authority. In addition, the Secretary-General and the staff shall have no financial interest in any activity relating to exploration and exploitation in the Area. Those qualifications will contribute to secure the independence and neutrality of the Secretariat.
(c) Jurisdiction of the International Seabed Authority
The LOSC contains detailed provisions with regard to the jurisdiction of the Authority. Principal features of its jurisdiction can be summarised in five points.
First, the Authority’s jurisdiction is limited to the Area (limitation ratione loci). The Area comprises the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction. Under Article 135, the Authority’s jurisdiction shall not affect the legal status of the waters superjacent to the Area or that of the airspace above the waters. Accordingly, the jurisdiction is spatially limited to the seabed and its subsoil beyond the limits of national jurisdiction.
Second, the jurisdiction of the Authority is limited to matters provided by the LOSC and 1994 Implementation Agreement (limitation ratione materiae). In this respect, Article 157(2) makes clear that the powers and functions of the Authority shall be those expressly conferred upon it by the LOSC. It is true that the Authority has such incidental powers as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area by virtue of Article 157(2). However, this does not mean that the Authority’s jurisdiction is of a general nature in its material scope. The task of the Authority is limited in essence to organise, carry out and control activities in the Area. Thus States may carry out other activities unconnected with the exploration and exploitation of the Area’s mineral resources, such as laying pipelines and cables, without the permission of the Authority.
Third, the Authority has legislative and enforcement jurisdiction with respect to activities in the Area. Concerning the legislative jurisdiction, Article 17(1) of Annex III provides:
The Authority shall adopt and uniformly apply rules, regulations and procedures in accordance with article 160, paragraph 2(f )(ii), and article 162, paragraph 2(o)(ii), for the exercise of its functions as set forth in Part XI on, inter alia, the following matters.
Such matters include: (a) administrative procedures relating to prospecting, exploration and exploitation in the Area; (b) operations; (c) financial matters; and (d) implementation of decisions taken pursuant to Article 151(10) and Article 164(2)(d). The Authority is also empowered to adopt appropriate rules concerning protection of human life, protection of the marine environment, installations used for carrying out activities in the Area, the equitable sharing of financial and other economic benefits derived from activities in the Area and the payments and contributions made pursuant to Article 82. Furthermore, it has the power to adopt rules and regulations, including regulations relating to prospecting, exploration and exploitation in the Area. To date, the Authority has issued three regulations:
• Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (Polymetallic Nodules Regulations),
• Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (the Sulphides Regulations), and
• Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts in the Area (Cobalt-Rich Crusts Regulations).
These regulations form what is informally called the Deep Seabed Mining Code. Regulations are binding on all members of the Authority. The legislative jurisdiction of the Authority can be regarded as a key element of the evolving deep seabed regime. Concerning enforcement jurisdiction, Article 153(5) confers on the Authority the right to take at any time any measures provided for under Part XI with a view to ensuring compliance with its provisions and the exercise of the functions of control and regulation assigned to it thereunder or under any contract. At the same time, the Authority possesses the right to inspect all installations in the Area used in connection with activities in the Area. The Council of the Authority is empowered to supervise and coordinate the implementation of the provisions of Part XI on all questions and matters within the competence of the Authority and invite the attention of the Assembly to cases of non-compliance under Article 162(2)(a).
Further, the Authority has the power to sanction non-compliance. Article 18(1) of Annex III provides that a contractor’s rights under the contract may be suspended or terminated in the cases where the contractor has conducted their activities in such a way as to result in serious, persistent and wilful violations of the fundamental terms of the contract, Part XI and the rules and regulations of the Authority; or where the contractor has failed to comply with a final binding decision of a dispute settlement body applicable to him. The Authority may also impose upon the contractor monetary penalties proportionate to the seriousness of the violation in conformity with Article 18(2) of Annex III. In addition to this, a State Party which has grossly and persistently violated the provisions of Part XI may be suspended from the exercise of the rights and privileges of membership by the Assembly upon the recommendation of the Council pursuant to Article 185. The Council may issue emergency orders, which may include orders for the suspension or adjustment of operations, to prevent serious harm to the marine environment arising out of activities in the Area under Article 162(2)(w).
Fourth, the jurisdiction of the Authority is exercised over all natural and juridical persons engaging in activities in the Area, regardless of their nationalities. In this sense, the Authority’s jurisdiction is of a general nature in its personal scope. As we shall discuss later, activities in the Area are to be carried out by the Enterprise, an operational organ of the Authority, and in association with the Authority by other commercial entities in accordance with Article 153(2). In this regard, Article 4(6) of Annex III requires that every applicant other than the Enterprise must undertake:
(a) to accept as enforceable and comply with the applicable obligations created by the provisions of Part XI, the rules and regulations of the Authority, the decisions of the organs of the Authority and terms of his contracts with the Authority,
(b) to accept control by the Authority of activities in the Area, as authorized by this Convention,
(c) to provide the Authority with a written assurance that his obligations under the contract will be fulfilled in good faith, and
(d) to comply with the provision on the transfer of technology set forth in Article 5 of the Annex. It is particularly interesting to note that the jurisdiction of the Authority is directly exercisable over natural persons. In this sense, it may be said that the Authority has a supranational jurisdiction.
Finally, the jurisdiction of the Authority is exclusive in the sense that no State or enterprise or natural and juridical person can be engaged upon activities in the Area without approval of the Authority. In summary, the jurisdiction of the Authority is limited to matters provided by the LOSC. Concerning those matters, however, the Authority can exercise both legislative and enforcement jurisdiction over all people and objects in the Area in an exclusive manner.
Further, the jurisdiction of the Authority is essentially spatial in the sense that it can be exercised solely within a specific space, namely the Area. Thus the Authority exercises a sort of spatial jurisdiction – a limited spatial jurisdiction – over the Area.