Law of the Sea: the International Seabed Authority --
Its Status and U.S. Participation Therein

Marjorie Ann Browne
Specialist in International Relations
Foreign Affairs and National Defense Division

September 16, 1996

96-772 F

CONTENTS

THE INTERNATIONAL SEABED AUTHORITY, 1995-1996
MEETING OF STATES PARTIES TO THE LAW OF THE SEA CONVENTION
UNITED STATES PARTICIPATION

SUMMARY

The 1982 U.N. Convention on the Law of the Sea, as amended by the 1994 Agreement Relating to the Implementation of Part XI of the U.N. Convention, entered into force, on November 16, 1994. That action initiated establishment of the International Seabed Authority (ISA), composed of all States parties to the Convention, to administer the seabed mining regime set forth in the Convention/Agreement. While the United States is not a party to the Convention, it signed the 1994 Agreement, enabling it to apply provisionally the seabed related portions of the Convention/Agreement and to participate in the work of the ISA. During 1995 and 1996, the ISA met and formally organized itself, electing members of its major bodies.

The Convention/Agreement package was transmitted to the Senate in October 1994. Through July 28, 1996, when the Agreement entered into force, the United States provisionally applied the Agreement, participating fully in work of the ISA. It is a member of the ISA Assembly and was elected to three bodies: the ISA Council, Finance Committee, and Legal and Technical Commission.1 The United States continues as a member of the ISA on a provisional basis through November 16, 1998, or until the Senate approves U.S. ratification of the Convention/Agreement package. If the Senate does not act by that date, it is expected U.S. membership in the ISA will cease. In addition, the United States participates as an observer in the Meetings of States Parties to the Convention.

THE INTERNATIONAL SEABED AUTHORITY, 1995-1996

The Assembly of the ISA held a two-part session in 1995 (February 27 to March 17; August 7-18) in Kingston, Jamaica. During this first session, the Assembly elected Mr. Hasjim Djalal (Indonesia) as its President, elected four Vice-Presidents, and appointed a nine-member Credentials Committee. It also adopted its rules of procedure. The Assembly held its second session in 1996 (March 11-22; August 5-16), also in Kingston. During the first part of its second session, it elected the 36 members of the ISA Council and the Secretary-General of the ISA, Satya N. Nandan (Fiji), who had been a Special Representative of the [U.N.] Secretary-General for the Law of the Sea between 1985 and 1992. Mr. Nandan took up his post on April 1, 1996.

The ISA Council is one of the two major organs of the ISA. It is the executive body of the ISA and is responsible primarily for the administration of the seabed mining regime. Under changes made by the 1994 Agreement, the United States is guaranteed a seat on the Council. As constituted by the Assembly, the following are members of the Council in their respective Groups:

On July 28, 1996, when the 1994 Agreement Relating to Implementation of Part XI of the U.N. Convention on the Law of the Sea entered into force, provisional application ended. This mechanism had enabled those countries, such as the United States, that had not become a party to the Convention to participate in the work of the International Seabed Authority. After provisional application ended, the Agreement provided that States not Parties to the Convention/Agreement package might continue membership in the ISA on a provisional basis if they carried out a two-step procedure. In this way, those States that have a major interest in deep seabed mining could continue to help shape the composition and work of the Authority and its organs. First, the non-Party should notify the United Nations of its intention to continue to participate as an ISA member on a provisional basis. This notification would enable such participation until November 16, 1996. If such a State wanted to continue membership beyond that date, a second step would be necessary: a request to the ISA Council for an extension of ISA membership on a provisional basis for a further period up to November 16, 1998.

During the second part of its second session, the ISA Assembly agreed to allow 30 nations that had not notified the United Nations of their intention to continue participation in the work of the ISA to continue to participate on a provisional basis, until November 16,1996. As of August 5, only 18 States had submitted notifications.

The ISA Assembly also elected 15 experts as members of the Finance Committee, seven from developed and eight from developing countries.² The Finance Committee, added by the 1994 Agreement, has a primary role in the ISA's financial and budgetary arrangements, including the draft financial rules, regulations, and procedures of the ISA's organs, the financial aspects of the ISA program of work, and assessed contributions of ISA members. On its final day, the ISA Assembly approved and sent to the U.N. General Assembly its 1997 budget as recommended by the Council.³ The ISA Assembly also authorized the ISA to request Observer Status at the United Nations and to apply for membership in the U.N. Joint Staff Pension Fund.

The ISA Council met at the same time during the second part of the 1996 session and elected its President, Lennox Ballah (Trinidad and Tobago). The Council also elected a 22-member Legal and Technical Commission, who were to be persons with appropriate qualifications relating to exploration, exploitation and processing of mineral resources, protection of the marine environment, or economic or legal matters relating to ocean mining and related fields.⁴ The Commission is to supervise exploration and mining activities, assess the environmental impact of such activities, and make recommendations to the Council on protection of the marine environment. It will also carry out the work of the Economic Planning Commission, a body that, for financial and efficiency reasons, is not being set up in this initial period.

The Council reviewed and approved an ISA budget for 1997, as reported to it by the Finance Committee, of $4,150,500. The 1997 budget is the last to be funded from the U.N. regular budget. Thereafter, members of the ISA will be assessed and make contributions directly to the ISA. The Council also approved the requests of five States for extension of provisional ISA membership until November 16, 1998: Bangladesh, Canada, Nepal, United States, and Poland.

The Third Session of the Assembly, Council, and other bodies of the ISA will convene in 1997: March 17-28 and August 18-29, in Kingston, Jamaica.

MEETING OF STATES PARTIES TO THE LAW OF THE SEA CONVENTION

Another body associated with the Convention is the Meeting of States Parties to the Convention. During its meeting in 1996 (July 24-August 2), it elected the 21 judges of the International Tribunal for the Law of the Sea. They included five each from the African and Asian Groups, three from the Eastern European Group, and four each from the Latin American and the Caribbean and the West European and Others Groups. The Tribunal will be headquartered in Hamburg, Germany. After an organizational meeting on October 1, 1996, the 21 judges will be sworn in by U.N. Secretary-General Boutros Boutros-Ghali on October 18, at an official inauguration.

The States Parties will meet again on March 10-14, 1997, to finalize an agreement on the privileges and immunities of the Tribunal and to elect members of the Commission on the Outer Limits of the Continental Shelf.

UNITED STATES PARTICIPATION

The United States participated in the negotiation of the 1994 Agreement and signed it; the President transmitted the Convention/Agreement package to the Senate for its consideration in October 1994. Between November 1994 and July 1996, the United States provisionally applied Part XI of the 1982 Convention in accordance with the 1994 Agreement and participated fully in the work of the International Seabed Authority.

On July 17, 1996, as the Agreement was about to enter into force and provisional application end, the United States notified the United Nations of its "intention . . to continue to participate as a Member of the International Seabed Authority on a provisional basis ...." Accordingly, the United States would continue to participate as a provisional member of the ISA, through November 16, 1996. During August, the United States requested that the Council extend its provisional membership in the ISA through November 16, 1998. The Council approved this request.

Thus, U.S. participation in the ISA includes membership in the Assembly, the Council, the Finance Committee, and the Legal and Technical Commission. The United States has until November 1998 for the Senate to approve U.S. ratification of the Convention/Agreement package. In the absence of Senate action, U.S. participation in the ISA could be expected to end. While the United States is not a Party to the Convention, it does participate as an observer in the Meetings of States Party to the Convention. A U.S. national was not elected to the Tribunal, but could have been if nominated by another country.

ENDNOTES:

1 Background information and a discussion of the Convention and Agreement may be found in CRS Issue Brief 95010, The Law of the Sea Convention and U.S. Policy, by Marjorie Ann Browne. Updated regularly.

2 The 15 persons with qualifications and experience in financial management came from the following countries: Uruguay, South Africa, Italy, Uganda, Germany, China, Japan, Russia, Mexico, Tunisia, France, India, Jamaica, United Kingdom, and United States (underlining indicates the five largest contributors to the ISA).

3 The United States disassociated itself from the consensus on the budget, maintaining that some activities should have been deferred until the 1998 budget when it was independent of the U.N. regular budget. Increases in the 1996-1997 U.N. regular budget -- the ISA 1997 budget being one of those increases -- will have to be offset with cuts in other areas, so that the total U.N. regular budget not exceed its $2.608 million ceiling.

4 These expert members came from the following countries: Germany, Cameroon, Norway, Costa Rica, Russia, Côte d'Ivoire, Egypt, Republic of Korea, Poland, France, China, United States, Gabon, Cuba, India, Italy, Japan, Ukraine, Namibia, Fiji, Bahamas, and Finland. The Commission is supposed to have 15 members but the Council President increased the number to accommodate the election of all candidates.