The regime of the area: Delineating the scope of application of the common heritage principle and freedom of the high seas

International Journal of Marine and Coastal Law

Volumn 22, Issue 1, 2007, Pages 143-176

  Oude Elferink, Alex G ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL PROTECTION; LAW OF THE SEA; MARINE RESOURCE;

EID: 34547951885     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180807781475272     Document Type: Article

References (205)

1. Adopted on 10 December 1982 (1833 UNTS 396). The Convention has been supplemented by the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 of 28 July 1994; hereinafter the 1994 Agreement ((1994) 33 International Legal Materials 1309). The 1994 Agreement is mainly concerned with the detailed regime for mining contained in Part XI and does not directly address sections 1 and 2 of Part XI, which are the focus of the present article.
2. Article 1(1)(1). This term will also be employed in the present article.
3. As the focus of this article is the regime of the Area, the continental shelf regime is not further considered here.
4. This second question will be addressed in the following section.
5. LOS Convention, Article 1(1)(3). This Article refers to 'resources', not 'mineral resources'. From Article 133(a) of the Convention, which defines the term 'resources' for the purposes of Part XI, it is apparent that the term covers all mineral resources. For a discussion of implications of this use of the term 'resources' for the scope of application of Part XI, see further below.
6. On the other hand, the exploration for and exploitation of all resources of the water column beyond the outer limit of the exclusive economic zone is a freedom of the high seas.
7. Lucchini and Vœlckel even conclude that, in the case of dumping, the rules in other treaty instruments do not seem to leave room for the existence of a freedom of the high seas (L. Lucchini and M. Vœlckel, Droit de la Mer; Tome 1 (Editions A. Pedone, Paris, 1990), p. 278).
8. LOS Convention, Article 87(2).
9. Ibid.
10. The principal provision on marine scientific research in Part XI is Article 143. For a discussion of this Article see further below.
11. For a discussion of this issue see also C.H. Allen, "Protecting the Oceanic Gardens of Eden: International Law Issues in Deep-Sea Vent Resource Conservation and Management," (2001) 13 Georgetown International Environmental Law Review pp. 563-660, pp. 629-630.
12. Ibid.;
13. M.F. Hayes, Charismatic Microfauna: Marine Genetic Resources and the Law of the Sea (paper presented at the 30th Annual Conference of the Center for Oceans Law and Policy, Ireland, July 12-14, 2006).
14. L. Glowka, "The Deepest of Ironies: Genetic Resources, Marine Scientific Research, and the Area," in 12 (1996) Ocean Yearbook, pp. 154-178 at pp. 168-169;
15. E. Salamanca Aguado, La Zona Internacional de los Fondos Marinos; Patrimonio Común de la Humanidad (Editorial Dykinson, Madrid, 2003), p. 275.
16. The limits of national jurisdiction are to be established by the coastal State in accordance with the relevant provisions of the Convention (see LOS Convention, Articles 76 and 134). This matter is beyond the scope of the present article.
17. For further information on hydrothermal vents and other deep seabed ecosystems see, e.g., S. Arico and C. Salpin, Bioprospecting of (sic) Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects (United Nations University and Institute of Advanced Studies, 2005), pp. 9-13.
18. See B. Carney, Lakes within Oceans (available at 〈oceanexplorer.noaa.gov/explorations/ 02mexico/background/brinepool/ brinepool.html〉 last accessed on 21 September 2006).
19. The following conclusions may also be relevant to determining the extent of the continental shelf in relation to the superjacent waters.
20. See also W. Burke, "State Practice, New Ocean Uses, and Ocean Governance under UNC-LOS," in T.A. Mensah (ed.) Oceans Governance: Strategies and Approaches for the 21st Century (Law of the Sea Institute, Honolulu, 1996), pp. 219-234 at p. 231, where it is noted that the minerals that are in the hot water that is responsible for the term "smoker" (hydrothermal vent) are subject to Part XI of the Convention. Burke then points out that the living matter which also emerges from the hydrothermal vent does not fall within the definition of resources in Part XI and concludes: "[t]hus, the deep seabed resource of present value is not subject to the treaty"
21. (ibid.; emphasis provided). As will be argued below, this conclusion with regard to the regime for those resources is debatable. What is of interest for the present discussion is that the water (and the resources contained in it) of a hydrothermal vent is considered to be part of the seabed.
22. Certain negotiating texts at the Third United Nations Conference on the Law of the Sea contained a more detailed definition of the term 'mineral resources' than the one found in Article 133 of the Convention. The ISNT (Doc. A/CONF.62/WP.8 of 7 May 1975 (reproduced in Third United Nations Conference on the Law of the Sea; Official Records, Vol. IV, p. 137, at p. 138)),
23. the RSNT (Doc. A/CONF.62/WP.8/Rev.1 of 6 May 1976 (reproduced in ibid., Vol. V, p. 125 at p. 128))
24. and the ICNT (Doc. A/CONF.62/WP.10 (reproduced in ibid., Vol. VIII, p. 1 at pp. 22-23))
25. listed liquid or gaseous substances, including water, steam and hot water, ore-bearing silt, and brine as mineral resources. The ICNT/Rev.2 (Doc. A/Conf.62/ WP.10/Rev.2 of 11 April 1980 (reproduced in R. Platzöder, Third United Nations Conference on the Law of the Sea: Documents, Vol. II (Oceana Publications, Dobbs Ferry, 1982) p. 3 at p. 64)
26. did not include water, steam and hot water in the list of liquid or gaseous substances at or beneath the sea level found in Article 133(b)(i). However, this list is not exhaustive. A report by the co-ordinators of the working group of 21 to the First Committee of the Third Conference observes that the description of the resources of the Area contained in subparagraph b of Article 133 contained in the ICNT/Rev.1 had been changed following the advice of experts on this matter. (Doc. A/CONF.62./C.1/L.27 of 27 March 1980 (reproduced in Third United Nations Conference on the Law of the Sea; Official Records, Vol. XIII, p. 113, at p. 114)). The report does not offer any other explanation for the change in wording.
27. Emphasis provided. The French and Russian language texts of Article 133 also refer to resources at the seabed as being located in the Area. The Spanish language text differs in this respect as it uses a term ('en los fondos') that has the meaning of 'at' and 'in'. Several of the negotiating texts at the Third Conference contained a more detailed definition of the term "mineral resources" than the one found in Article 133 of the Convention. The last of those more detailed definitions, set out in the ICNT/Rev.2, note 19 at p. 64, refers to "[l]iquid or gaseous substances at or beneath the surface [...]"; "[s]olid substances occurring on the surface [...]"; and "[m]etal-bearing brine at or beneath the surface."
28. The water of a hydrothermal vent would also seem to fall under the term 'mineral resource' as employed in Article 133 of the Convention. Under certain scientific definitions water is not considered to be a mineral because it is not a solid, but naturally occurring ice is classified as a mineral. Article 133 of the Convention refers to "solid, liquid or gaseous mineral resources".
29. The majority of the provisions in section 2 of Part XI on principles governing the Area is concerned with the mineral resources of the Area or activities in the Area (see, e.g., Articles 136, 137(2) and (3), 139, 140, 142, 144-148) and section 3 sets out the specific regime for the development of those resources of the Area.
30. See note 32 below for an overview of literature reflecting that position.
31. Vienna Convention on the Law of Treaties of 23 May 1969 (1155 UNTS 331), Article 31(1).
32. See also F.M. Armas Pfirter, The Management of Seabed Living Resources in "The Area " under UNCLOS (Report presented at the Tenth Session of the ISA, 27 May 2004), p. 26;
33. N. Navarro Batista, Fondos Marinos y Patrimonio Común de la Humanidad (Ediciones Universidad de Salamanca, 2000), p. 73;
34. T. Scovazzi "Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-Bed Authority," 19 (2004) IJMCL, pp. 383-409 at p. 391.
35. Salamanca Aguado observes: En tanto en cuanto el artículo 136 considera que la Zona internacional de los fondos marinos, y no sólo los recursos minerales, constituyen el patrimonio común de la humanidad, deben incluirse en esta especial naturaleza jurídica, todos los recursos naturales susceptibles de explotación comercial, incluidos los microorganismos que se encuentran en ella (Salamanca Aguado, note 13 at pp. 274-275).
36. The actual regime applicable to those resources may of course vary. However, even if a specific rule excludes specific resources from the general regime of a maritime zone, that rule is part of the regime applicable to the resources that are located in that zone.
37. Article 77(4) of the LOS Convention defines sedentary species as organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.
38. See Armas Pfirter, note 25 at pp. 20-22; Salamanca Aguado, note 13 at p. 275. See also below the discussion on the scope of application of certain agreements on regional fisheries management organizations and arrangements.
39. See Hayes, note 12, who discusses the arguments in the report by Armas Pfirter.
40. See also Scovazzi, note 25 at pp. 400-401.
41. Adopted on 29 April 1958 (499 UNTS 311).
42. See also the detailed discussion of the hydrothermal vent resources of the continental shelf by Allen, note 11 at pp. 618-628.
43. Allen concludes that certain species living in hydrothermal vents can be classified as sedentary species, but others cannot be so classified. For example, certain microbes are suspended in the water column in or near a vent (ibid., p. 627). Allen does not consider whether the provision on sedentary species can be applied by analogy to the Area.
44. Allen, note 11 at p. 630.
45. For other authors expressing similar views see, e.g., J. Beurier and C. Noiville, "La Convention sur le droit de la mer et la diversité biologique," in International Colloquy in Tribute to the Memory of Cyrille de Klemm (Council of Europe, 2001), pp. 97-114 at p. 112;
46. Burke, note 18 at p. 231;
47. R.R. Churchill and A.V. Lowe, The Law of the Sea 3rd ed. (Manchester University Press, Manchester, 1999), p. 239 and fn. 49;
48. Glowka, note 13 at p. 155;
49. M.H. Nordquist (general ed.), United Nations Convention on the Law of the Sea 1982;
50. A Commentary (6 Volumes) (Martinus Nijhoff Publishers, Dordrecht: 1985, 1989, 1991, 1993; The Hague: 2002) (hereafter Virginia Commentary), Vol. III, p. 29.
51. Most of these publications conclude that the living resources of the Area are subsumed under the regime for the living resources of the high seas set out in Part VII of the LOS Convention. Treves observes that the 'common heritage' concept may have some relevance for the living resources of the Area, notwithstanding the definition of resources in Article 133 (T. Treves, "Protection of the Environment on the High Sea and in Antarctica," in K. Koufa (ed.), Protection of the Environment for the New Millennium (Sakkoulas Publications, Athens, 2002), pp. 74-125 at p. 91;
52. see also Salamanca Aguado, note 13 at p. 275.
53. It can also be noted that Article 145(b) refers to the "natural resources of the Area," thereby expressly affirming that the resources of the Area are not limited to mineral resources.
54. See also Armas Pfirter, note 25 at pp. 7-9.
55. See also ibid., pp. 26-27.
56. See, e.g., J. Lévy, "La première décennie de l'Autorité Internationale des Fonds Marins," 109 (2005) Revue Générale de Droit International Public, pp. 101-146 at p. 112.
57. Hayes, note 12.
58. See also below for the discussion of fisheries organizations and arrangements.
59. For the view that subsequent practice has to involve all the parties to a treaty see, e.g., A. Aust, Modern Treaty Law and Practice (Cambridge University Press, Cambridge, 2000), p. 195;
60. I. Brownlie, Principles of Public International Law 5th ed. (Oxford University Press, Oxford, 1998), p. 635;
61. A. McNair, The Law of Treaties (Clarendon Press, Oxford, 1961), p. 424.
62. See further below.
63. Respectively, Articles 256 and 257.
64. The parallel provision in Part VII, Article 89, only refers to the invalidity of claims of sovereignty. The absence of a reference to sovereign rights is explained by the fact that States have sovereign rights over the continental shelf. Certain high seas freedoms, such as fishing, involve appropriation.
65. Article 137 refers to the appropriation of "any part thereof." The word 'thereof refers back to "the Area or its resources" in the preceding part of the sentence. This meaning of Article 137(1) (i.e., that 'thereof also refers back to the Area itself) is expressed more clearly in the French and Spanish texts of Article 137(1), which refer to, respectively, "une partie quelconque de la Zone ou de ses ressources" and "parte alguna de la Zona o sus recursos."
66. For a discussion of the principle of non-appropriation see, e.g., Salamanca Aguado, note 13 at pp. 302-304.
67. See, e.g, Churchill and Lowe, note 32 at p. 239, fn. 49.
68. See Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed (Decision 11/10 of the Conference of the Parties to the Convention on Biological Diversity); Note by the Executive Secretariat (reproduced in UNEP/CBD/SBSTTA/8/TNF/3/Rev.1 of February 2003), para. 117. States differ over whether the regime for marine scientific research in the Area limits the rights to exploit the findings of such research commercially (see further below).
69. Virginia Commentary, note 32, Vol. VI at p. 113.
70. Ibid., p. 149. It is not clear from the Virginia Commentary what implications that difference actually has.
71. The Virginia Commentary observes that the "purpose of the phrase 'and without prejudice to the other provisions of this Part' is unclear since activities authorized under Part XI are for peaceful purposes" (ibid., p. 150).
72. For a discussion of the principle in those two contexts see also below.
73. Cf. Scovazzi, note 25 at p. 392.
74. Resolution 2749 (XXV) contains the Declaration of Principles governing the Sea-Bed and the Ocean Floor, and the Subsoil thereof, beyond the Limits of National Jurisdiction. The Resolution was adopted in 1970 with 108 votes to zero, with 14 abstentions. The principles contained in the Resolution formed the basis for the negotiations on the principles that were later included in Part XI of the LOS Convention.
75. LOS Convention, 6th preambular paragraph (emphasis provided). That "of which" also refers back to the Area itself is expressed more clearly in the French text of the paragraph, hich reads in relevant part "que l'exploration et l'exploitation de la zone se feront dans l'intérêt de l'humanité toute entière".
76. Vienna Convention on the Law of Treaties, Article 31(2).
77. See also Scovazzi, note 25 at p. 407.
78. See also Salamanca Aguado, note 13 at p. 217.
79. LOS Convention, Article 157(2).
80. Ibid., Article 145.
81. Article 209 of Part XII reconfirms that pollution from activities in the Area is subject to a specific regime in accordance with Part XI.
82. In addition, Article 303 of the Convention, with the exception of paragraph 2, is also applicable to archaeological and historical objects found in the Area. For a discussion of Article 149 see A. Strati, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea (Martinus Nijhoff Publishers, The Hague, 1995), pp. '296-314.
83. See further below for a short discussion of the regime for the Area under the UNESCO Convention on the Protection of the Underwater Cultural Heritage (adopted on 2 November 2001 (41 (2002) International Legal Materials p. 40) (hereinafter the UCH Convention)).
84. For a discussion see further below.
85. See also Scovazzi, note 25 at p. 398.
86. Salamanca Aguado observes that Article 143(3) is a specific application to the Area of the obligations to cooperate set out in Articles 243 and 244 of the Convention (Salamanca Aguado, note 13 at p. 216).
87. See Glowka, note 13 at pp. 173-175;
88. Scovazzi, note 25 at pp. 401-403.
89. See Glowka, note 13 at p. 173;
90. Hayes, note 12;
91. see also Report of the Secretary-General of the International Seabed Authority under Article 166, paragraph 4, of the United Nations Convention on the Law of the Sea (Doc. ISBA/8/A/5 of 7 June 2002), para. 39.
92. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 29 December 1972 (1046 UNTS 120). The London Convention refers to the high seas (Article VII(3)). The 1996 Protocol to the London Convention (Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 7 November 1996 (36 (1997) International Legal Materials p. 7) refers to areas beyond the jurisdiction of any State (Article 10(3)).
93. For a more detailed discussion of Article 311(3), (4) and (6) see, e.g., D. Freestone and A.G. Oude Elferink, "Flexibility and Innovation in the Law of the Sea-Will the LOS Convention Amendment Procedures Ever Be Used?" in A.G. Oude Elferink (ed.) Stability and Change in the Law of the Sea: The Role of the LOS Convention (Martinus Nijhoff Publishers, Leiden, 2005), pp. 169-221 at pp. 175 and 182-183.
94. Article 311(4) requires States Parties intending to conclude an agreement referred to in Article 311(3) to notify the other States Parties of their intention to conclude the agreement and of the modification or suspension of the provision(s) of the Convention for which it provides. Such a notification shall be made through the Secretary-General of the United Nations.
95. The focus of the UCH Convention is on activities directed at the underwater cultural heritage (defined as "activities having underwater cultural heritage as their primary object and which may, directly or indirectly, physically disturb or otherwise damage underwater cultural heritage" (UCH Convention, Article 1(6)). Activities in the Area, which are regulated by Part XI of the LOS Convention, may also have an impact on the underwater cultural heritage (for a discussion of the relationship between these two regimes, see G. Le Gurun, "France," in S. Dromgoole (ed.), The Protection of Underwater Cultural Heritage (Martinus Nijhoff Publishers, Leiden 2006), pp. 59-96 at pp. 86-89;
96. S. Dromgoole, "2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage" (2003) 18 IJMCL pp. 59-108 at pp. 85-87). The Authority has addressed potential impacts of activities in the Area on objects of an archaeological and historical nature in Regulations 8 and 34 of the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (reproduced in the Doc. ISBA/6/A/18 of 4 October 2000). The Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides and Cobalt-rich Ferromanganese Crusts in the Area (Doc. ISBA/10/C/WP.1/Rev.1 of 24 May 2004) also incorporate these provisions
97. (see Regulations 8 and 37;
98. for a discussion of the relationship between the (draft) Regulations and the UCH Convention see Le Gurun, note 70 at pp. 86-89).
99. Article 11(1) of the UCH Convention states that "States Parties have a responsibility to protect cultural heritage in the Area in conformity with this Convention and Article 149 of the United Nations Convention on the Law of the Sea;" see also UCH Convention, Article 3.
100. See, e.g, Dromgoole, "2001 UNESCO Convention," note 70 at pp. 75-76.
101. The UCH Convention also entrusts certain functions to the Director-General of UNESCO under Articles 11 and 12, including the appointment of the Coordinating State (Article 12(2)).
102. Ibid., Article 12(1).
103. Ibid.
104. See further Dromgoole, "2001 UNESCO Convention," note 70 at pp. 67-68.
105. See UCH Convention, Article 1(1). The Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area established by the Authority in 2000 (note 70, Regulations 8 and 34) and the 2004 Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides and Cobalt-rich Ferromanganese Crusts in the Area (note 70, Regulations 8 and 37) use the language of Article 149 of the LOS Convention.
106. See Dromgoole, "2001 UNESCO Convention," note 70 at p. 84.
107. The term "areas beyond national jurisdiction," which is not defined in the LOS Convention, is commonly used to refer to the Area and the waters of the high seas.
108. The deep seabed communities concerned are also found on the deep seabed in areas under national jurisdiction. Within 200 nautical miles they are governed by the provisions on living resources contained in Parts V and VI of the Convention. For the continental shelf beyond 200 nautical miles, species that fall under the definition of sedentary species in Article 77(4) are included in the regime for the continental shelf contained in Part VI of the Convention.
109. For further background information see, e.g., Arico and Salpin, note 15 at pp. 15-24;
110. Glowka, note 13 at pp. 156-164.
111. Adopted on 5 June 1992 (31 (1992) International Legal Materials p. 818). For a more detailed discussion of those developments
112. see, e.g., L. Glowka, "Beyond the Deepest of Ironies: Genetic Resources, Marine Scientific Research and International Seabed Area," in J. Beurier, A. Kiss and S. Mahmoudi (eds), New Technologies and Law of the Marine Environment (Kluwer Law International, The Hague, 2000), pp. 75-93, at pp. 83-92.
113. Access to Genetic Resources and Benefit-Sharing: Legislation, Administrative and Policy Information; Report by the Secretariat (UNEP/CBD/COP/2/13 of 6 October 1995).
114. Ibid., p. 30, para. 111.
115. Ibid.
116. Conference of the Parties to the Convention on Biological Diversity, Decision II/10, Conservation and Sustainable Use of Marine and Coastal Biological Diversity, para. 12.
117. Bioprospecting of (sic) the genetic resources of the deep sea-bed, Note by the Secretariat (UNEP/CBD/SBSTTA/2/15 of 24 July 1996).
118. Ibid., p. 2, para. 4.
119. According to Glowka, it never has been fully clear why the coordination with the Office for Ocean Affairs and Law of the Sea did not take place. Explanations ranged from institutional conflicts to political pressure (Glowka, note 82 at p. 90).
120. Bioprospecting (sic) of the genetic resources of the deep sea-bed, note 87 at p. 3, para. 11 (footnotes not included).
121. Ibid., p. 20, footnote 16.
122. Law of the Sea; Report of the Secretary-General; Doc A/51 /645 of 1 November 1996, para. 231.
123. Ibid., para. 232.
124. Ibid.
125. See Glowka, note 82 at p. 90.
126. Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed, note 46.
127. Ibid., p. 10. paras. 32-34.
128. See ibid., pp. 29-30, paras. 114-116.
129. Ibid., p. 11, para. 37.
130. Ibid., p. 30, para. 116.
131. Ibid., p. 32, para. 124-126.
132. For an analysis of the possible role of the Convention on Biological Diversity in relation to genetic resources see, e.g., Glowka, note 13 at pp. 176 et seq.
133. Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed, note 46 at p. 32, para. 128.
134. Conference of the Parties to the Convention on Biological Diversity, Decision VII/5, Marine and coastal biological diversity, paras. 54-62;
135. Conference of the Parties to the Convention on Biological Diversity, Decision VIII/21, Marine and coastal biological diversity: conservation and sustainable use of deep seabed genetic resources beyond the limits of national jurisdiction;
136. Resolution 58/240 of 23 December 2003 (Doc. A/RES/58/240 of 4 March 2004), paras. 52 and 68;
137. Resolution 59/24 of 17 November 2004 (Doc. A/RES/59/24 of 4 February 2005), paras. 67-76;
138. Resolution 60/30 of 29 November 2005 (Doc. A/RES/60/30 of 8 March 2006), paras. 77-80.
139. Report of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (Doc. A/61/65 of 20 March 2006), p. 18, para. 71.
140. Ibid., p. 9, para. 29;
141. see also Report of the sixteenth Meeting of States Parties to the LOS Convention (Doc. SPLOS/148 of 28 July 2006), p. 17, para. 87.
142. Report of the Ad Hoc Open-ended Informal Working Group, note 103 at pp. 8-9, para. 28;
143. see also ibid. p. 17, para. 65.
144. Ibid. A similar view was expressed at the sixteenth meeting of States Parties to the LOS Convention
145. (Report ofthe sixteenth Meeting of States Parties, note 104 at pp. 11-12, para. 63).
146. Report of the Ad Hoc Open-ended Informal Working Group, note 103 at p. 9, para. 30 and p. 19, para. 72.
147. Ibid., p. 9, para. 30;
148. see also Report of the sixteenth Meeting of States Parties, note 104 at p. 17, para. 87.
149. Report of the Ad Hoc Open-ended Informal Working Group, note 103 at p. 10, para. 31 and p. 19, para. 73.
150. Ibid., p. 19, para. 73.
151. The summary notes that the trends are not exhaustive, are not intended to prejudice national positions and future discussion of the issues and may not necessarily reflect the positions of each and every delegation (Report of the Ad Hoc Open-ended Informal Working Group, note 103 at Annex I, para. 1).
152. Decision VIII/24 on protected areas by the Conference of the Parties of the Convention on Biological Diversity (March 2006) also recognizes the role of the General Assembly in this respect (para. 34).
153. Report of the Ad Hoc Open-ended Informal Working Group, note 103 at Annex I, para. 3.
154. Ibid., p. 23, para. 18.
155. Chapter 17 of Agenda 21 (UN doc. A/CONF. 151/26 Vols I-IV), adopted at the 1992 United Nations Conference on Environment and Development, held in Rio de Janeiro (the Rio Summit), called upon States to identify marine ecosystems exhibiting high levels of biodiversity and productivity and other critical habitat areas and to provide necessary limitations on use in these areas, through, inter alia, designation of protected areas (para. 17.85). The focus in this respect was, however, not on the deep seabed (see ibid.). As far as the impact of activities in areas beyond the limits of national jurisdiction is concerned, the focus of Agenda 21 is, to a major extent, on fisheries. The Plan of Implementation of the World Summit on Sustainable Development, adopted in Johannesburg in 2002, made the commitment found in paragraph 17.85 of Agenda 21 much more explicit, calling for the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks, by 2012 (para. 32(c)).
156. For a further discussion of the legal issues with regard to marine protected areas in areas beyond the limits of national jurisdiction see, e.g., T. Scovazzi, "Marine Protected Areas on the High Seas: Some Legal and Policy Considerations," 19 (2004) IJMCL pp. 1-17;
157. H. Thiel, "Approaches to the Establishment of Protected Areas on the High Seas," in A. Kirchner (ed.), International Marine Environmental Law (Kluwer Law International, The Hague, 2003), pp. 169-192.
158. The major exception is shipping, but with regard to shipping it is generally recognized that the International Maritime Organization (IMO) is the competent organization and mechanisms exist that enable the coastal State and the organization to establish areas in which more stringent rules can be imposed on shipping.
159. See Decision VII/5, paras. 29-31 and Decision VIII/24, paras. 34-47.
160. See also para. 42 of Decision VIII/42 of the Conference of the Parties to the Convention on Biological Diversity.
161. See, e.g., Resolution 58/240, note 102 at para. 52;
162. Resolution 59/24, note 102 at para. 67.
163. See, e.g., Resolution 58/240, note 102 at para. 52;
164. Resolution 59/24, note 102 at para. 67.
165. Report of the Ad Hoc Open-ended Informal Working Group, note 103 at para. 59.
166. Ibid., para. 60. On the IMO, FAO and Regional Seas Conventions, see further below.
167. Ibid. In view of the controversy over the mandate of the Meeting of States Parties
168. (see, e.g., A.G. Oude Elferink, "Reviewing the Implementation of the LOS Convention: the Role of the United Nations General Assembly and the Meeting of States Parties," in A.G. Oude Elferink and D.R. Rothwell (eds), Ocean Management in the 21st Century: Institutional Frameworks and Responses (Leiden, Martinus Nijhoff Publishers: 2004), pp. 295-312 at pp. 302-312), this latter option does not seem to be viable.
169. Report of the sixteenth Meeting of States Parties, note 104 at para. 63.
170. Report of the Ad Hoc Open-ended Informal Working Group, note 103 at para. 61.
171. Ibid.
172. Ibid., para. 62.
173. Ibid., Annex I, para. 10.
174. Ibid., Annex I, para. 11. See also above for an overview of relevant points from the Summary of Trends of a more general nature.
175. Most of the work of the Authority is concerned with activities in the Area which are clearly covered by the regime contained in Part XI of the Convention. For the purposes of the present article there is no need to review this part of the work of the Authority (for further information in that respect see, e.g, Levy, note 36;
176. M.W. Lodge, "Environmental Regulation of Deep Seabed Mining," in Kirchner, note 116 at pp. 49-59).
177. Report of the Secretary-General of the International Seabed Authority, note 66 at paras 39 and 52-53.
178. See Report of the Chairman of the Legal and Technical Commission on the work of the Commission during the ninth session (Doc. ISBA/9/C/4 of 1 August 2003), paras. 15-17;
179. Report of the Chairman of the Legal and Technical Commission on the work of the Commission during the tenth session (Doc. ISBA/10/C/4 of 28 May 2004), paras. 20-21;
180. Report of the Chairman of the Legal and Technical Commission on the work of the Commission during the eleventh session (Doc. ISBA/11/C/8 of 19 August 2005), para. 31;
181. Report of the Chairman of the Legal and Technical Commission (Doc. ISBA/12/C/8 of 11 August 2006), paras. 18-19. The functions of the Legal and Technical Committee are set out in Article 165 of the LOS Convention and sections 1(4) and 6(7) of the Annex to the 1994 Agreement. See also above on the powers and functions of the Authority.
182. See also LOS Convention, Article 162(2)(x).
183. See S. Kaye, "Implementing high seas biodiversity conservation: global political considerations," 28 (2004) Marine Policy, pp. 221-226 at p. 225;
184. Scovazzi, note 25 at p. 396.
185. Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed, note 46 at para. 122. The fact that the Authority primarily is intended to develop the resources of the Area may make it less well placed to address environmental concerns than, for instance, the Convention on Biological Diversity. This issue would require consideration in any future regime to protect the marine environment in areas beyond the limits of national jurisdiction.
186. As Levy observes: Un examen du processus de prise de décision au sein de l'Autorité le révèle particulièrement favorable aux grands pays industrialisés. Ces Etats, s'ils se trouvent obligés d'accepter un certain contrôle d'une institution internationale, auront peut-être intérêt à utiliser une institution existante dont le mode de fonctionnement leur est avantageux (Lévy, note 36 at p. 122).
187. For a discussion see V. Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level (Martinus Nijhoff Publishers, Leiden, forthcoming), chapter 8.6.
188. Report of the twenty-sixth session of the Committee on Fisheries, Rome, 7-11 March 2005 (FAO Fisheries Report No. 780), p. 17, para. 103.
189. See also the discussion of regional fisheries management organizations and arrangements below.
190. Convention for the Protection of the Marine Environment of the North-East Atlantic of 22 September 1992 (1993) 32 International Legal Materials p. 1068.
191. See especially Briefing on OSPAR 's Work on the Protection of the Marine Environment of the High Seas (Summary Record OSPAR 2006, PSPAR 06/23/1-E, Annex 6).
192. I would like to thank Erik Molenaar for drawing my attention to the issue discussed in this section.
193. Some organizations or arrangements have adopted measures to protect the marine environment of the Area from adverse impacts of fishing activities (see, e.g., Conservation Measures 06/06: On the Management of Vulnerable Deep Water Habitats and Ecosystems in the SEAFO Convention Area (available at 〈www.seafo.org/Cons%20&%20Mngt%20Measures/ 2006%20conservation%20measures/conservation%20measure%2006_06.pdf〉 (last accessed 26 October 2006)). Such actions are in accordance with the obligations of States to protect the marine environment in the exercise of high seas freedoms and in principle do not raise a question of the relationship between Parts VII and XI of the LOS Convention. The same observation applies to the 2004 and 2005 Resolutions on fisheries adopted by the UN General Assembly. The 2004 Resolution calls upon States to take action to deal with practices that have adverse impacts on vulnerable marine ecosystems located beyond the limits of national jurisdiction
194. (Resolution 59/25, note 102 at paras. 66 and 67;
195. see also Resolution 60/31 of 29 November 2005 (Doc. A/RES/60/31 of 10 March 2006), paras. 73-74) and the Report of the Secretary-General. Information on state practice to address the adverse impacts of fishing on vulnerable marine ecosystems is found in: "Impacts of fishing on vulnerable marine ecosystems: actions taken by States and regional fisheries management organizations and arrangements to give effect to paragraphs 66 to 69 of General Assembly Resolution 59/25 on sustainable fisheries, regarding the impacts of fishing on vulnerable marine ecosystems" (Doc. A/61/154 of 14 July 2006).
196. This concerns, e.g., the Convention establishing the South East Atlantic Fisheries Organisation, the new constitutive instrument of the Northwest Atlantic Fisheries Organization (NAFO) currently being negotiated, the recently adopted South Indian Ocean Fisheries Agreement, and the draft agreement to set up the South Pacific Regional Fisheries Management Organisation. The NAFO Convention as presently in force excludes sedentary species from its scope of application (Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries of 24 October 1978 (1135 UNTS 369), Article 1(4)).
197. See the discussion of living resources of the Area above.
198. Adopted on 20 May 1980 (1329 UNTS 47).
199. This view is further confirmed by Article 141 of the LOS Convention (see further above).
200. A similar definitional issue does not exist with regard to the high seas. High seas freedoms can be exercised in the Area and the superjacent waters. If a different regime for these two marine areas is developed, they will have to be distinguished, which is a different exercise than defining the high seas.
201. See also L.D.M. Nelson, "Reflections on the 1982 Convention on the Law of the Sea," in D. Freestone, R. Barnes and D. Ong (eds), The Law of the Sea; Progress and Prospects (Oxford University Press, Oxford, 2006), pp. 28-39 at p. 34.
202. See also above the discussion of Article 311 of the LOS Convention.
203. Cf. Virginia Commentary, note 32, Vol. III at p. 34.
204. As discussed above, the debate on legal issues initially was taken up within the framework of the Convention on Biological Diversity, but that is no longer the case.
205. As was discussed above, although the Authority would not seem to be a likely candidate to assume this role, there are a number of arguments that suggest that assigning some role to the Authority in this respect might be a feasible solution.