碩士 / 東吳大學 / 法律學系 / 93 / The thesis introduces and discusses international r�縵ime regarding to exploration and exploitation for the natural resources of deep seabed, meanwhile, analyzes current operations of International Seabed Authority (hereinafter referred as “ISA”) whose problems it encountered.
As regards to the key points and framework of this thesis, we are to divide into eight chapters:
Chapter 1－Introduction:
This chapter is intended to illustrate the motive of reasoning, purpose, methods, scope, limitation and expected purpose of research.
Chapter 2－Historical development of seabed mining r�縵ime:
This chapter introduces the historical development of seabed mining r�縵ime and describes its geographic and legal definition of seabed. Because of different views on legal character of seabed from different countries, the author is to discuss four theories, namely, “res nullius”, “res communis”, “exploitability approach” and “common heritage of mankind” (hereinafter referred as “CHM”). Though there is no consensus whether the legal status of seabed is customary international law to date, it is no question to regard it as CHM. As a result, this thesis analyzes the substantial meaning of CHM based on documents, for example, the 1967 Malta’s Proposal, the 1969 Moratorium Resolution, the 1970 Principle Declaration and the 1982 United Nations Convention on the Law of the Sea (hereinafter referred as “UNCLOS”). In addition, the author separately discusses the opinions expressed by developed and developing states during the Third United Nations Conference on the Law of the Sea.
Chapter 3－The r�縵ime and legislation of seabed mining:
This chapter explains the r�縵ime and legislation of seabed exploration and exploitation based on the provisions of UNCLOS, the Agreement of 28 July 1994 Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December (hereinafter referred as “1994 Agreement”) and the 2000 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (hereinafter referred as “2000 Mining Code”), and compares the differences of such documents. Current mining system, both UNCLOS and 1994 Agreement, has adopted “international management system” and “parallel system”. The former（ISA）has comprehensive competence to organize, carry out and control seabed mining on behalf of mankind as a whole, and the latter provides equal opportunity to explore or exploit seabed hard resources for the Enterprise and States Parties or other entities. In relation to development of seabed resources, this thesis analyzes general and production policies (production ceiling), review mechanism (periodic review and review conference), economic assistance for developing countries and protection of the marine environment which are stipulated in UNCLOS and its Annexes (especially Annexes III and IV), 1994 Agreement and 2000 Mining Code. Moreover, this chapter is to introduce domestic mining law of advanced industrial countries (e.g., the U.S., the United Kingdom, the Federal Republic of Germany, France, the U.S.S.R and Japan). As to mining system, it establishes not only “two-tier review system”, so as to issue exploration and exploitation licenses, but also “mutual recognition system”. In this respect, like-minded states could authorize foreign mining companies to engage in seabed mining reciprocally. Regarding to “financial terms”, national laws require less amount than UNCLOS’, which reduce financial obligation of relevant enterprises, and they also provide qualifications of applicants, procedures of application and international obligations of contractors (e.g., protection of marine environment and economic funding). At last, the author also analyzes the legality of domestic legislation in conflict with UNCLOS r�縵ime.
Chapter 4－Structure and competence of ISA:
This chapter illustrates the structure, legal status of ISA, powers and competences of its main and subsidiary organs. As regards to structure, developed countries dissatisfied provisions of UNCLOS entitling ISA comprehensive powers and their leading roles couldn’t be guaranteed effectively in ISA. As a result, 1994 Agreement modified relevant provisions of UNCLOS, and it specified that ISA shall set up its organs according to cost-effectiveness, streamlining principle and evolutionary approach in its initial operation. In relation to legal status, UNCLOS stipulates that the ISA shall have international legal personality and legal capacity (such as the right to contract, dispose, the capability of instituting judiciary procedures), and it enjoys the privileges and immunities based on its functionary necessity. As to powers and competences, UNCLOS provides that ISA is empowered powers expressly conferred upon by UNCLOS and such incidental powers as are implicit and necessary for the exercise of those powers and functions with respect to seabed mining, but such powers and competences are limited in three conditions, namely, limit rationae materiae, limit rationae loci and legal limit. As a result, ISA is an incomplete international legal person. This chapter sequentially introduces competences of ISA’s principal and subsidiary organs, e.g., Assembly, Council, Secretariat, Enterprise, Legal and Technical Commission, Economic Planning Commission and Finance Committee (especially legal relationship between ISA and the Enterprise), and the author describes and compares the differences between UNCLOS and 1994 Agreement. Finally, this chapter introduces the decision-making of ISA. Concerning current operation and decision-making in the organs of ISA, they shall make a consensus as a general rule. If all efforts to reach a decision by consensus have been exhausted, decisions by voting shall be taken separately by half or two-thirds majority of members present and voting depending upon questions of procedure or substance.
Chapter 5－The r�縵ime and principles of current operation of ISA:
This chapter introduces basic conditions of prospecting, exploration and exploitation on the seabed, which were attached in Annex III of UNCLOS (hereinafter referred as “Annex III”). Annex III stipulates relevant provisions about qualifications of applicants, approval of plans of work, procedure of making contracts and selection among applicants for production authorizations. An applicant will have the exclusive right to explore and exploit if a written plan of work is approved by ISA. However, an applicant will be imposed some obligations, such as providing site-banking area (reserved area), transferring of technology, paying mining fees, and providing all relevant information, data and personnel training programmes. Besides, contractors will also be liable for any severe damage of marine environment arising from not obeying provisions of UNCLOS and its Annexes. So far as the protection of pioneer investors is concerned, Resolution II of UNCLOS on Governing Preparatory Investment in Pioneer Activities Relating to Polymetallic Nodules (hereinafter referred as “Resolution II”) stipulates relevant provisions, and the author orderly discusses the definition of pioneer investors, procedures of application and their rights and obligations. Concerning settlement of disputes on overlaps of mine sites, the Preparatory Commission for the International Sea Bed Authority and for the International Tribunal for the law of the Sea (hereinafter referred as “Preparatory Commission”) had held series of meetings or sessions with states interested since 1983, and they had signed the 1984 General Understanding, the 1986 Arusha Understanding and New York Understanding, and the 1987 Midnight Agreement. As a result, such agreements had be settled overlapping disputes of mine sites between the first group of applicants and potential applicants. In the end of 1987, Preparatory Commission approved the applications of the first group of applicants, to whom pioneer investor status were granted. This chapter sequentially describes current operation of seven registered pioneer investors on the one hand, and introduces recent achievements and future development of ISA on the other. At the same time, the author analyzes ISA’s contributions towards the progress of international law of the sea. Finally, this chapter discusses the binding force and applicability of UNCLOS and 1994 Agreement to non-contracting parties, in addition, assess the effectiveness of UNCLOS r�縵ime.
Chapter 6－Settlement of disputes in seabed mining:
In this chapter, the author introduces settlement of disputes in traditional international law, for example, diplomatic negotiation (or consultation), good offices, mediation, enquiry, conciliation, arbitration and judicial procedure. Such traditional measures couldn’t satisfy swift changes on marine events, Part XI and Part XV of UNCLOS provide relevant procedures which States Parties or other entities could select. This chapter also discusses separately settlement of disputes in UNCLOS, 1994 Agreement and 2000 Mining Code, especially general provisions of Part XV and specific provisions of Part XI of UNCLOS. The Seabed Disputes Chamber of International Tribunal for the Law of the Sea (hereinafter referred as “SDC”) shall have compulsory jurisdiction with respect to disputes between States Parties concerning the interpretation or application of Part XI of UNCLOS and relevant Annexes, and it has close relationship with ISA. In the author’s opinion, SDC will become a much busier judicial organ than International Tribunal for the Law of the Sea (hereinafter referred as “ITLOS”) in the future. The author emphasizes that the disputes settlement procedures of UNCLOS give entities other than States Parties (natural or legal persons) opportunities to institute or participate in judicial procedures of ITLOS or SDC（locus standi）, and which breaks the precedent that the subject of action is limited to States only in cases before the International Court of Justice (hereinafter referred as “ICJ”).
Chapter 7－Issues on current r�縵ime of seabed mining:
First, this chapter introduces the Informal Negotiating Sessions held by the Secretary-General of United Nations from 1990 to 1994 (two rounds, 15 sessions). During the meetings, the provisions of UNCLOS and its relevant Annexes were reviewed and adjusted in respect with costs to states parties and institutional arrangements, the Enterprise, decision-making, review conference, transfer of technology, production policy, economic assistance, financial terms of contracts. On July 28 1994, General Assembly of United Nations adopted 1994 Agreement which revised original provisions of UNCLOS and its Annexes. Secondly, this chapter introduces plenary sessions held by ISA after its establishment. During the sessions, member states negotiated some major issues arising from administrative matters (e.g., status of member states participating in ISA’s works, composition of Council and its subsidiary organs, structure of Secretariat, contributions to the budget and ISA’s relationship with the host country and other international organizations) and substantial matters. Finally, the author discusses seabed mining policies of the United States which were deeply influenced by the shifts of parties and administrations. During the period of the Nixon Administration and the Carter Administration, the U.S. didn’t actively participated in the United Nations Conference on the Law of the Sea and preparatory work of drafting the UNCLOS, but proposed to establish an international mechanism to control seabed mining instead. As soon as Reagan took power as president, he changed traditional policies of the former administrations. The Reagan Administration considered that Part XI of UNCLOS substantively damaged economic interests of the U.S. Consequently, the U.S. refused to sign UNCLOS, and established a Reciprocating States R�縵ime with other like-minded countries outside the UNCLOS, which injured its entry into force and comprehensive application. During the period of the Clinton Administration and the Bush Administration, the governments tended to accede to the UNCLOS and 1994 Agreement after the modification of UNCLOS r�縵ime which was in coincidence with the interests of the U.S. Meanwhile, the author optimistically evaluates the possibility of the U.S. acceding to UNCLOS r�縵ime, and he believes that the CHM would become customary international law in near future. Therefore, the international r�縵ime of seabed mining shall bind both contracting parties and non-contracting parties.
Chapter 8－Conclusion：
This chapter draws a conclusion on certain key points of the above-mentioned chapters. The author also designs a diagram which facilitates readers to compare precisely the differences between UNCLOS and 1994 Agreement.
In addition to the contents of each chapter, the author adds an appendix of articles, bibliography, diagrams, and international documents. This part of information is much valuable, even, in no way, can claim itself complete, it is nevertheless worthy to be cited by the enterprises and scholars engaging in practical operation or research.
The purposes of writing this thesis is to provide domestic operators to understand the developments of international r�縵ime of seabed mining and current operations of ISA, through gathering detailed materials or information, which may facilitate works concerned. The author urges the government to establish a “Department of Marine Resources” and to exchange relevant information or technology with other technologically advanced countries so that the authority would value seabed mining activities, and accelerate its domestic legislation depending upon international r�縵ime. The author expects that this thesis would become a guideline of Taiwan, People Republic of China, Hong Kong and Macau when engaging in activities concerned in the field of seabed exploitation in recent future.
| Identifer | oai:union.ndltd.org:TW/093SCU05194036 |
| Date | January 2005 |
| Creators | Yung-ming Chan, 詹勇銘 |
| Contributors | Chia-jui Cheng, 程家瑞 |
| Source Sets | National Digital Library of Theses and Dissertations in Taiwan |
| Language | zh-TW |
| Detected Language | English |
| Type | 學位論文 ; thesis |
| Format | 502 |
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