Report on the first part of the Second Session

of the Assembly of the International Seabed Authority;

Kingston Jamaica, 11-22 March 1996

Barbados was represented by Francois Jackman, Foreign Service Officer, Ministry of Foreign Affairs.

2. The items on the agenda of the Assembly were the election of

(i) a Council,

(ii) a Secretary General (SG)

(iii) a Finance Committee

While the Assembly was able to elect (i) and (ii), there was not sufficient time to elect (iii).

The International Seabed Authority (ISA)

3. The ISA is the organisation which, under the United Nations Convention on the Law of the Sea (UNCLOS) regulates the exploitation of the seabed beyond the limits of national jurisdiction (this is designated as "the Area" in the language of the Convention). It consists of an Assembly of states parties to UNCLOS and its subsidiary bodies, and a Secretariat.

Background

4. The divisions in the international community over UNCLOS, and in particular over Part XI of the Convention which deals with the Area have made the successful establishment of a global regime for the seas and their subjacent areas an almost thirty-year process which was started by an historic speech made to the United Nations General Assembly in 1967 by Arvid Pardo, a Maltese delegate. The final Convention text that the Third United Nations Conference on the Law of the Sea (UNCLOS III) agreed to in 1982, was boycotted by every single major industrialised country, in particular because of the quasi-socialist provisions of the section of the Convention dealing with the mining of the Area.

UNCLOS provides that the "Area and its resources are the common heritage of mankind". It creates a subsidiary body called "the Enterprise" which would carry out seabed mining on behalf of the international community, distributing proceeds "taking into particular consideration the interests and needs of developing States and peoples who have not attained full independence or other self-governing status". Inter alia, mining companies exploiting the seabed would be required to share technology with the Enterprise, pay high license fees (US$1 million), and in some cases open parallel mines to be administered "for the benefit of mankind".

These and other such distributive provisions were deemed unacceptable by industrialised countries, and they refused to ratify the Convention. However, throughout the 1980's developing countries continued to ratify the Convention, which would come into force one year after the sixtieth ratification. Concerned by the North-South polarisation developing around this otherwise well-accepted piece of international law, and encouraged by industrialised countries fearing the creation of international machinery with strong socialist overtones, successive UN Secretaries General held talks on the areas of disagreement. This led to an "Agreement relating to the implementation of Part XI" of UNCLOS, which emasculated several of the provisions of Part XI, and reassured the industrialised countries. It also strengthened the role of the Council of the Authority, a smaller decision-making body. The Agreement was adopted by the UN General Assembly in 1994, and paved the way for universal ratification of UNCLOS, and the establishment of the (ISA).

While for technological and commercial reasons there is at present no large-scale mining of the seabed in the Area, the interests at stake are considerable. The initial investment in technology will be considerable, and the returns equally large. The potential fallout for present land-based producers of minerals is considerable, as are the gains for potential producers of seabed-derived minerals. It is not surprising therefore that states are keen to get in on the ground floor of this unique UN body. No other UN organisation will have the powers to regulate and define commercial activity in the manner that the ISA still can.

The Assembly

5. The Assembly of the International Seabed Authority met for its inaugural session in November 1994, one year after the sixtieth ratification of UNCLOS. Then, the Barbados delegation was led by Prime Minister Owen Arthur, and included Dr. Peter Laurie, Permanent Secretary in the Ministry of Foreign Affairs. The Assembly met three times in 1995 (including an informal consultative meeting) in order to elect the Council, the SG and the Finance Committee. Intractable differences between Assembly members did not allow for any progress to be made in the composition of the Council, which must nominate candidates for the post of SG.

Commentary: There was considerable pressure for this session of the Assembly to get on with the elections of these three key elements. The Assembly had been deadlocked over a total of almost ten weeks, and there was a growing sense of frustration. As headquarters country, Jamaica was especially keen to get things going. This was clear in the way in which Ambassador Kenneth Rattray of Jamaica, Chairman of the Latin American and Caribbean Group (GRULAC), dealt with the concerns of his group.

The Council

6. The Council consists of thirty six members of the Authority elected by the Assembly in five chambers representing different interest groups:

chamber a: four members from among the major importers and consumers of the commodities produced from the minerals to be derived from the Area, including one state from Eastern Europe, and the state with the largest economy at the time of the entry into force of the convention. This chamber is effectively the ISA's Security Council, in which both the U.S.A. and the Russian Federation have permanent seats.

chamber b: four members from among the eight states parties which have made the largest investment in seabed mining. This guarantees a presence on the Council of countries such as France, Japan, India and China which are known as "pioneer investors" and which have already invested at least US$ 30 million dollars in exploration.

chamber c: four members which are major net exporters of the categories of minerals to be derived from the Area, including at least two developing countries

chamber d: six members from among developing states representing special interests including:

* states with large populations

* states which are landlocked or geographically disadvantaged

* island states

* states which are major importers of the categories of minerals to be derived from the Area

* states which are potential producers of such minerals

* least developed states

chamber e: eighteen members elected according to the principle of equitable geographical distribution of seats in the Council as a whole provided that each region shall have at least one member elected under this provision (the regions are Africa, Asia, Latin America and the Caribbean, and Western Europe and Others -- WEOG).

Commentary: The division of the Council into chambers was originally designed to ensure equitable representation of all interest groups in the Assembly. But the new provisions of the implementation agreement ensure that in order for the Council to agree on a decision, it must not be opposed by a majority in any one of the five chambers, and that chambers "d" and "e" (essentially representing developing states) are considered as one for voting purposes. This ensures that industrialised states retain an effective veto over developing states. In addition, the implementation agreement strengthens the Council at the expense of the Assembly, where all states are on an equal footing.

The election of the Council:

7. With all this baggage, the election of the Council proved to be a lengthy and complex affair, in which traditional United Nations divisions (regionally) were complicated by the divisions according to interest groups in the Council. States parties came to this Assembly deadlocked on the question of the numbers of seats allocated to regional groupings. The President of the Assembly had proposed the following regional seat allocation:

However, GRULAC believed it merited seven seats, and no other group was willing to give up one of its seats. The first compromise was that a ten-year rotation of one seat be implemented. This meant that for two out of the ten years, each regional group would surrender a seat,, and for the remaining eight years would gain a seat. For example, the first two-year period might see a seat distribution as shown in the chart, in which GRULAC has "surrendered" a seat. In the second two-year period, for example, WEOG would surrender a seat and give it to GRULAC, etc. However, Eastern Europe objected on the grounds that for two years it would have only two seats, which was below an acceptable minimum. In the end, after considerable negotiation, a four-year rotation, excluding Eastern Europe was agreed to. GRULAC surrendered a seat first, and within GRULAC, Jamaica elegantly volunteered to give up one year of its term in order to expedite the establishment of a Council. The full membership of the Council including rotations is at Appendix 1.

Commentary: GRULAC was adamant that it deserved no less than seven seats in the Council, and that anything less would be a slight, and a denial of their legitimate claims. All the other regional groups were satisfied with their allocations, and had in fact hardened their positions on the matter. In the corridors, WEOG delegates explained that they had started off asking for twelve seats and had allowed themselves to be beaten back to eight, but certainly no further. WEOG delegates also suggested informally that AFRICA had one seat too many, which might have gone to GRULAC.

Although a Council has been elected, all the rotations during the four-year agreement period have not yet been worked out, and there are considerable short to medium-term uncertainties:

1. come 1998, a number of states which are provisionally applying UNCLOS at present will have had to ratify it properly in order to maintain membership in the ISA;

2. come 2000, when this rotation agreement comes to an end, the membership of the ISA is likely to have increased and changed somewhat, which will alter the balance of power. Negotiations and elections for the Council in 2000 and beyond appear complicated.

The Election of the Secretary General:

8. There were four candidates for the post: Kenneth Rattray (Jamaica), Luis Preval (Cuba), Satya Nandan (Fiji) and Joseph Warioba (Tanzania).

UNCLOS specifies that the Council will nominate candidates for SG, for whom the Assembly will then vote. However, there are no established procedures for this. There is though, a provision that the Council and the Assembly should function whenever possible by consensus. Taking heart from this, the pro tem chairman of the Council sought ways whereby a consensus candidate could be found, and elected by acclamation by the Assembly. Following the withdrawals of Jamaica and Cuba, the President convened an informal plenary, and conducted and informal ballot between the two remaining candidates. Barbados voted for Fiji. The votes were counted in secret. At the end of the counting, the President called a formal plenary in which he announced that there remained only one candidate, Ambassador Satya Nandan of Fiji.

Commentary: It was understood from the outset that Cuba and Jamaica would renounce their candidatures once serious lobbying began. The two remaining candidates polarised the Assembly around them. Ambassador Satya Nandan clearly represented the post-UNCLOS period in which the distributive aspirations of the Authority were thwarted; he was at the time Under Secretary General of the UN Office for Ocean Affairs, and is partly credited for getting the implementation agreement signed. Fiji was supported by ASIA and WEOG; they campaigned tirelessly and effectively for their candidate. The Hon. Joseph Warioba was also impressive on paper: he is a former chairman of the Preparatory Committee on the ISA, Prime Minister and Vice President of Tanzania. However, the hostility of WEOG due to his chairmanship of the Prepcom in its quasi-socialist phase, and the almost complete absence of lobbying efforts by AFRICA, undermined his candidature badly.

The (Asian) President of the Assembly, supported by WEOG was at times almost inelegantly keen to find a consensus candidate, a procedure which would strongly favour Fiji. Clearly, having ensured, through the implementation agreement that the ISA would not be a socialist organisation, the industrialised countries were keen that their man also be at the top. To the extent that the presence of a friendly SG guarantees the participation of the industrialised countries, Ambassador Nandan's election is a good thing. It is also positive for Barbados to the extent that he will be acutely sensitive to the small islands constituency.

What next?

9. The resumed session of the Assembly (August 5-16 1996) will elect a finance committee, and examine budgetary and procedural matters. It is not recommended that a representative be sent to the meeting from Barbados; representation by the Honorary Consul of Barbados in Jamaica would suffice.

The ISA is not the most important limb of the UNCLOS body for Barbados, since it concerns itself with a subject in which we have limited immediate interest at present. However, a presence at key moments such as elections is important if we are to develop a profile, and take an active interest in those areas of UNCLOS such as fisheries, environmental protection and delimitations. In addition, the existence of some polymetallic nodule caches in the Caribbean basin and Central Atlantic area makes attention to the ISA a not unimportant area of interest, and potential future wealth.

Minister of Foreign Affairs 28.iii.96 F.J.