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Africa and Part XI of Law of the Sea Convention (LOSC) 1982 Provisions, as Amended by the 1994 Implementation Agreement

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Africa and the Deep Seabed Regime: Politics and International Law of the Common Heritage of Mankind

Abstract

The so-called 1994 Implementation Agreement modified the regime of the Area under Part XI of the LOSC. The preamble of the Agreement claimed that it was amongst other things devised due to “political and economic changes, including market-oriented approaches, affecting the implementation of Part XI”,1 an acknowledgment of the clear influence of politics and non-legal factors in norm creation in the international sphere. The emergence of this Agreement was a triumph of free market liberalism over the regulated rather protectionist regime incorporated in Part XI of LOSC. It also confirmed that real power in the international system still remains firmly with the western liberal democratic powers who after the Part XI regime, a product of about 9 years of negotiations, were still able to wrest further concessions for themselves in the form of the 1994 Agreement.

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Notes

  1. 1.

    Preamble 5 of the 1994 Agreement.

  2. 2.

    See Arts. 136 and 137 of LOSC and preamble 2 of the 1994 Agreement. However, see Sect. 4.2 and Chap. 5.

  3. 3.

    Also see Anand (1997), p. 1 at p. 17 where the author said, “Although the area of the deep seabed beyond the limits of national jurisdiction is still called and declared as the common heritage of mankind, the term has lost its original meaning and substance when it symbolised the interests, needs, hopes and aspirations of a large number of poor peoples. The principle has lost its lustre and soul”. Further, see the Asian African Legal Consultative Committee (AALCC) [now Asian African Legal Consultative Organisation (AALCO)] Secretariat Document, “Law of the Sea”, AALCC/XLI/ABUJA/2002/S.2, para. 79, p. 11.

  4. 4.

    The Non-paper on the Enterprise prepared by the Netherlands delegation for Informal Consultations, New York, 6–7 August 1992. NILOS (1994), p. 241. See also the statement of the Secretary-General of the Asian-African Legal Consultative Committee, H.E. Mr Frank X. Njenga at the summer meeting of the Eighth session of the Prepcom held at New York in August, 1990, NILOS (1992), p. 513. Further, see Preamble 2, G.A. Res. 48/263 of 17 August 1994 and Preamble to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area ISBA/6/A/18 of 4 October 2000. See Resolution issued by the Asian African Legal Consultative Organisation at its fortieth session, RES/40/2 of 24 June 2001, which states in para. 1 as follows: “Reaffirms that in accordance with Part XI of the Convention and the preambular paragraphs of the Agreement relating to the Implementation of Part XI and Regulations, the Area is the common heritage of mankind and should be used for the benefit of the mankind as a whole”.

  5. 5.

    Arts. 140 (1). See also Arts. 160(f) (i) of LOSC.

  6. 6.

    Art. 148 of LOSC.

  7. 7.

    See para. 3(c) of the Memorandum attached to the Maltese Note Verbale dated 17 August 1967 (A/6695, 18 August, 1967). See also Bulajic (1991), pp. 633 at 641. In the Report of the President to the UNCLOS III, it was said that, “The principle of non-discrimination means in law, treating equals equally and giving differential treatment to those who are not equals”. Doc.A/CONF.62/L.141 and Add.1 of 29 April 1982, UNCLOS III, Official Record Vol. XVI, p. 247, para. 9.

  8. 8.

    Bulajic (1991), pp. 633 at 641.

  9. 9.

    See Sects. 2 and 5 of the Annex to the 1994 Agreement. Also see Sects. 4.2.1 and 4.2.3 and Chap. 7 of this book for more on this.

  10. 10.

    Art. 141. See Treves (1980), pp. 808 at 851–857.

  11. 11.

    See Statement of the Nigerian delegation to the 22nd session of the General Assembly (quoted in note 39 of Chap. 3 of this book), DOALOS (1996), p. 14. Also, see para. 6 of the Resolution of the Council of Ministers of the O.A.U on the international zone extending beyond national jurisdiction, Doc.A/CONF.62/50 of 14 September 1976, stating, “The international zone, a common heritage of mankind, should be used exclusively for peaceful purposes. Any utilisation of this zone for military purposes is strictly prohibited”. UNCLOS III, Official Records Vol. VI, p. 121.

  12. 12.

    See 10 ILM. 145(1971). 31 African states voted in favour of the treaty. No African state voted against it. On key legal issues affecting various programmes for eliminating nuclear weapons, see Crawford and Sands (1999), pp. 153–179.

  13. 13.

    The United States of America, the United Kingdom of Great Britain and Northern Ireland and the then USSR (now the Russian Federation) are designated as the depositary Governments. See Art. X (2) of the Treaty. For the list of states parties, see United States Department of State, http://www.state.gov/s/l/treaty/depositary/. African states parties are Algeria, Benin, Botswana, Cape Verde, Central African Republic, Congo, Cote d’Ivoire, Ethiopia, Ghana, Guinea-Bissau, Lesotho, Mauritius, Morocco, Niger, Rwanda, Sao Tome and Principe, Seychelles, South Africa, Swaziland, Togo, Tunisia and Zambia. The African Nuclear Weapon-Free Zone Treaty (Pelindaba Treaty), a contribution to the global effort to eradicate nuclear weapons, which declares Africa as a nuclear weapon free zone evinces African States’ commitment to the total prohibition of the use of nuclear weapons. See www.african-union.org.

  14. 14.

    See Arts. I and II.

  15. 15.

    See Art. VIII.

  16. 16.

    See Art. VIII. To the knowledge of this writer, so far, none of the states parties has invoked this provision.

  17. 17.

    See the African Nuclear Weapon-Free Zone Treaty (Pelindaba Treaty), a contribution to the global effort to eradicate nuclear weapons, which declares Africa as a nuclear weapon free zone evinces African States’ commitment to the total prohibition of the use of nuclear weapons. See www.african-union.org and para. A(iv) of the African Union Ezulwini Consensus, Ext./EX.CL/2(VII), 2005.

  18. 18.

    See UNCLOS III, Official Records Vol. V, p. 57.

  19. 19.

    See the Resolution of the Council of Ministers of the Organization of African Unity on the international zone extending beyond national jurisdiction, DOC/A/CONF.62/50 of 14 September 1976 which states: “The international zone, a common heritage of mankind, should be used exclusively for peaceful purposes. Any utilization of this zone for military purposes is strictly prohibited”.

  20. 20.

    See the Resolution of the Council of Ministers of the Organization of African Unity on the international zone extending beyond national jurisdiction, DOC/A/CONF.62/50 of 14 September 1976.

  21. 21.

    See Nordquist (1995), pp. 90–91.

  22. 22.

    Arts. 143 and 256 of LOSC. See generally Part XIII. See also Brown (1992b), pp. 79–81; Friedheim (1993), pp. 203–209 and Soons (1982), pp. 219–229.

  23. 23.

    Art. 143 (3) (a) of LOSC.

  24. 24.

    Art. 143 (3) (b) of LOSC.

  25. 25.

    Art. 143 (2) and (3) (ii) of LOSC.

  26. 26.

    Art. 143 (2) and (3) (c) of LOSC. In promoting and encouraging marine scientific research, the ISA has organised several expert workshops, seminars and meetings. See para. 123 of the Report of the Secretary-General of the International Seabed Authority under Art. 166, para. 4, of the United Nations Convention on the Law of the Sea, ISBA/10/A/3 of 31 March 2004. Also, see the ISA Data Repository providing technical information on the resources of the Area obtained from marine scientific research activities. http://iron.isa.org.jm/portal/page?_pageid=6,30740,6_30749,6_30786&_dad=portal&_schema=PORTAL.

  27. 27.

    See Document A/CONF.62/33 of 19 July 1974, UNCLOS III, Official Records Vol. III, pp. 63–65.

  28. 28.

    In this same article, the OAU also supported the right to carry out marine scientific research within national jurisdiction as long as it was done with the consent of the coastal state concerned.

  29. 29.

    See International Seabed Authority (ISA) Press Release, SB/10/16 of 2 June 2004.

  30. 30.

    For more on the Endowment Fund, see http://www.isa.org.jm/en/efund/fund and Lodge (2009), pp. 185–193.

  31. 31.

    ISBA/12/A/11 of 16 August 2006.

  32. 32.

    See para. 33–38 of ISBA/14/A/2 of 14 April 2008.

  33. 33.

    Section 5, para. 1 (c) of the Annex of the Implementation Agreement.

  34. 34.

    See ISA Press Release, SB/10/16 of 2 June 2004.

  35. 35.

    Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, p. 226 at 241–242, para. 26. See also the Mox Plant Case (Ireland v. United Kingdom), ITLOS Rep. 2001, p. 95 at 110, para. 82 where the ITLOS said: “the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under part XII of the[LOSC] Convention and general international law”.

  36. 36.

    Brown (1992b), pp. 84–85.

  37. 37.

    Art. 145, Part XII – specifically in relation to the Area Art. 209- and Art. 17(1) (b) (xii) of Annex III of LOSC.

  38. 38.

    Art. 209 (2) of LOSC. See Art. 58 of the Treaty Establishing the African Economic Community (AEC), adopted on 3 June 1991 and came into force on 12 May 1994, which enjoins member states to adopt national, regional and continental policies, strategies and programmes to deal with environmental pollution. http://www.africa-union.org/root/au/Documents/Treaties/treaties.htm. Also see the New Partnership for Africa’s Development (NEPAD), Action Plan for the Environment Initiative, http://www.nepad.org/reports/ACTION/1.pdf. This Action Plan has a section on conservation and sustainable use of marine, coastal and freshwater resources, though the focus is limited to areas within the national jurisdiction of African states.

  39. 39.

    NILOS (1990), p. 512. At its 41st session the Asian African Consultative Committee pointed out that, the implementation of the plans of work of pioneer investors for prospecting and exploration should follow a precautionary approach towards preservation and protection of the marine environment in the Area. See the Asian African Legal Consultative Committee (AALCC) [now Asian African Legal Consultative Organisation (AALCO)] Secretariat Document, “Law of the Sea”, AALCC/XLI/ABUJA/2002/S.2, para. 81.

  40. 40.

    Art. 15 of the OAU Declaration on the Issues of the Law of the Sea, UNCLOS III, Official Records, Vol. III, pp. 63–65. See also Arts. 16 and 17 of the Declaration. See Kenya’s Draft Articles for the preservation and the protection of the marine environment for inclusion in the Convention on the Law of the Sea. (Especially Art. 3), A/CONF.62/C.3/L.2 of 23 July 1974.

  41. 41.

    See “Information Note concerning the Secretary-General’s informal consultation on outstanding issues relating to the deep seabed mining provisions of the UN Convention on the Law of the Sea, New York, 25 March 1991” and “Summary of Informal Consultations Conducted by the Secretary-General on the Law of the Sea during 1990 and 1991, 31 January 1992” in International Seabed Authority (2002b), pp. 13 and 77 respectively.

  42. 42.

    Section 1, para. 7 of the Annex to the Agreement. See Brown (1995), p. 5 at 16.

  43. 43.

    See Recommendations of the Legal and Technical Commission for Guidance of Contractors for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area. ISBA/7/LTC/1/Rev.1.

  44. 44.

    See Regs. 1(3) (c) and (f), 7, 21(4) (b) and Part V of the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (hereinafter called the Mining Code). ISBA/6/A/18.

  45. 45.

    Reg. 31 (2) of the Mining Code. See generally Lodge (2003a), pp. 49–59. See also the comments of the South African representative, Mr Hoffmann, to the 64th plenary meeting of the fifty-eighth session of the General Assembly where he said that South Africa welcomes, “… the steps the Authority has taken to develop a better understanding of the biodiversity of the seabed and deep ocean so as to be able to take effective measures aimed at protecting the marine environment against harmful effects from activities relating to prospecting and exploration of mineral resources in the Area”. General Assembly, fifty-eighth session, Official Records, A/58/P.V.64 of 24 November 2003.

  46. 46.

    Reg. 33 (2) of the Mining Code provides that “Any coastal state which has grounds for believing that any activity in the Area by a contractor is likely to cause serious harm to the marine environment under its jurisdiction or sovereignty may notify the Secretary-General in writing of the grounds upon which such belief is based”. Also see Art. 209 of LOSC.

  47. 47.

    Art. 8. (The Nairobi Convention came into force on 30 May 1996). Compare with Art. 8 of the Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (The Abidjan Convention that entered into force on 5 August 1984) that states, “The contracting parties shall take all appropriate measures to prevent, reduce, combat and control pollution resulting from or in connection with activities relating to the exploration and exploitation of the sea-bed and its subsoil subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction”. For Nairobi and Abidjan Treaties, see http://www.unep.ch/regionalseas/main/eaf/eafconv.html and http://www.unep.org/AbidjanConvention/Publications/index.asp respectively.

  48. 48.

    Art. 2 (a) defines the Convention area as comprising “the marine and coastal environment of that part of the Indian Ocean situated within the Eastern African Region and falling within the jurisdiction of the contracting parties to this Convention”.

  49. 49.

    Art. 4(2). See 30 ILM 775(1991).

  50. 50.

    Art. 146 of LOSC. See Brown (1992), pp. 85–86.

  51. 51.

    Adopted on 1 November 1974 and entered into force on 25 May 1980. This Convention has so far being ratified by 153 states, including African states. However certain African states, mainly landlocked states, have not become parties to this Convention, namely, Botswana, Burkina Faso, Burundi, Central African Republic, Chad, Guinea Bissau, Lesotho, Mali, Niger, Rwanda, Swaziland, Somalia, Uganda, Zambia and Zimbabwe. See http://www.imo.org/Conventions/mainframe.asp?topic_id=248.

  52. 52.

    SOLAS Protocols of 1978 and 1988.

  53. 53.

    Brown (1992b), pp. 86–88.

  54. 54.

    Art. 147 of LOSC.

  55. 55.

    Art. 87 (2) and Art. 147 (3) of LOSC.

  56. 56.

    Art. 147 (1) of LOSC.

  57. 57.

    Art. 147 (1) (a) of LOSC.

  58. 58.

    Art. 147 (1) (b) of LOSC.

  59. 59.

    Art. 142 of LOSC.

  60. 60.

    Arts. 149 and 303 of LOSC.

  61. 61.

    Regs. 8 and 34 of the Mining Code. See also Art. 11(2) of the UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 which requires states parties to notify both the Director-General of UNESCO and the Secretary-General of the ISA of such discoveries.

  62. 62.

    31 States Parties, including four African States (Gabon, Libya, Nigeria and Tunisia), have on 12 July 2010 ratified this Convention. It entered into force on 2 January 2009. For Convention see 41 ILM 40(2002). For further reading on the UNESCO Convention, see Carducci (2002), pp. 419–434; Murphy (2002), pp. 468–470 and Forrest (2002), pp. 511–554.

  63. 63.

    See comments on Regulation 34 in Draft Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (Annotated version of ISBA/6/C/2*-Prepared by the Secretariat), ISBA/6/C/CRP.2 of 21 June 2000 which says the “provision was added in the light of the provisions of the draft UNESCO Convention on the protection of the underwater cultural heritage”. See however Art. 3 of the UNESCO Convention on the relationship between the Convention and LOSC 82, requiring that the UNESCO Convention must be interpreted and applied in a manner consistent with international law, including the LOSC.

  64. 64.

    See Art. 1 (1) of the UNESCO Convention.

  65. 65.

    See Art. 12 of the UNESCO Convention.

  66. 66.

    See Recommendations of the Southern and Eastern Africa UNESCO Maputo Conference on the Convention on the Protection of the Underwater Cultural Heritage, http://www.unesco.org/culture/legalprotection/water/images/maputorec.pdf.

  67. 67.

    See Art. 26 of the Cultural Charter for Africa which states: “The African cultural heritage must be protected on legal and practical planes in the manner laid down in the international instruments in force and in conformity with the best standards applicable in this field”.

  68. 68.

    See Art. 28, of the Cultural Charter for Africa which states: “The African cultural heritage must be protected on the legal and practical planes in the manner laid down in the international instruments in force and in conformity with the best standards applicable in this field”, which states: “The African states should take steps to put an end to the despoliation of African cultural property and ensure that cultural assets, in particular archives, works of art and archaeological objects, which have been removed from Africa, are returned there. To this end they should, in particular, support the efforts exerted by UNESCO and take all other necessary steps to ensure the implementation of the United Nations General Assembly Resolution on the Restitution of Works of Art Removed from their Country of Origin”.

  69. 69.

    See http://www.unesco.org/en/underwater-cultural-heritage/.

  70. 70.

    Art. 153 and Art. 8 of Annex III of LOSC and Sect. 1, para. 10 of the Annex to the Agreement.

  71. 71.

    See Chap. 6 of this book on the system of mining vis-à-vis African states.

  72. 72.

    See the Asian-African Legal Consultative Committee, Law of the Sea: Report of the Secretary General, Doc. No. AALCC\XXXIV\DOHA\95\5.

  73. 73.

    See Chap. 5 of the book on Institutions of the Regime.

  74. 74.

    See Li (1994), pp. 142–145 and Lenoble (1984), pp. 375–427. Also see generally on the influence of technology on international law, Picker (2001), pp. 149–219.

  75. 75.

    See Background Document for Workshop on Polymetallic Nodule Mining Technology – Current Status and Challenges Ahead, National Institute of Ocean Technology, Chennai India, 18–22 February 2008, http://www.isa.org.jm/files/documents/EN/Workshops/Feb2008/Backgrd.pdf.

  76. 76.

    Mainly the U.S.A, Japan, Russian Federation, France, Canada, Netherlands, Germany and United Kingdom. See Seabed Patents, Volumes 1–10, http://www.isa.org.jm/files/documents/EN/Pubs/cd2.pdf. However, there are so-called developing States like China, India and South Korea that also have the capacity.

  77. 77.

    For more on the effect of technology on the prospects of African states’ participation in deep seabed mining, see Chap. 7 of this book.

  78. 78.

    On negotiations at the UNCLOS III on the transfer of technology, see Ogley (1984), pp. 148, 154, 156, 162–163, 171–175, 227 and 230.

  79. 79.

    See generally Boczek (1982).

  80. 80.

    UNCLOS III Official Records, Vol. III, pp. 63–65. See also para. 15 of the Group of 77 Text on Conditions of Exploration and Exploitation, 1974 Doc. A/CONF.62/C.1/L.7.

  81. 81.

    Such international fora also included UNCTAD, UNIDO, UNESCO and FAO conferences and meetings.

  82. 82.

    See Nigeria and Group of 77 draft articles on the development and transfer of technology, Documents A/CONF.62/C.3/L.8 of 1st August 1974 and A/CONF.62/C.3/L.12 of 22nd August 1974 respectively, UNCLOS III Official Records Vol. III, pp. 251 and 253. See also the statements of the representatives of Nigeria, Libya and Congo in UNCLOS III Official Records vol. II at p. 348, paras. 14–15; p. 353, paras. 68 and 69 respectively. Further the statements of the representatives of the following African states: Somalia, Egypt, Guinea, Kenya, Liberia, Togo, Senegal and Gambia in UNCLOS III Official Records vol. IV at p. 102, para. 7; p. 103, paras. 21; 33; 34–37; pp. 103–104, para. 38; p. 104, paras. 49–51 respectively.

  83. 83.

    UNCLOS III, Official Records, vol. IV, p. 102, para. 7.

  84. 84.

    UNCLOS III, Official Records, vol. IV, p. 103, para. 33.

  85. 85.

    See Franck (1995) at pp. 18–22.

  86. 86.

    See Lewanika (2001) and Echols (2003), p. 199 at 201.

  87. 87.

    See “Information Note concerning the Secretary-General’s informal consultation on outstanding issues relating to the deep seabed mining provisions of the UN Convention on the Law of the Sea, New York, 25 March 1991” in International Seabed Authority (2002b), pp. 13.

  88. 88.

    See generally Li (1994), pp. 141–205; Brown (1986), pp. 42–52, Sect. II.3.

  89. 89.

    See Art. 5 of Annex III of LOSC.

  90. 90.

    See Art. 4, para. 6(d) of Annex III.

  91. 91.

    See Art. 5, para. 8 of Annex III.

  92. 92.

    Art. 5, para. 7 of Annex III.

  93. 93.

    See Art. 5, paras. 1 and 2 of Annex III.

  94. 94.

    Art. 5, para. 3(a) of Annex III.

  95. 95.

    Art. 5, para. 3(b) of Annex III.

  96. 96.

    Art. 5, para. 3(c) of Annex III.

  97. 97.

    Art. 5, para. 3(d) of Annex III.

  98. 98.

    Art. 5, para. 3(e) of Annex III.

  99. 99.

    Art. 5, para. 5, of Annex III.

  100. 100.

    Art. 5, para. 6, of Annex III.

  101. 101.

    See Sect. 4.1.3.2 of Chap. 4 of this book on dispute settlement procedures under Part XI.

  102. 102.

    Art. 5, para. 4 of Annex III.

  103. 103.

    The provisions of Art. 144 on the transfer of deep seabed technology and Part XIV of LOSC, dealing generally with the transfer of marine technology, appear to emphasise “best efforts” international co-operation in the transfer of technology rather than making it mandatory. See UNCTAD Issues Note by the Secretariat, International Arrangements for Transfer of Technology: Best Practices for Access to and Measures to Encourage Transfer of Technology with a View to Capacity Building in Developing Countries, Especially in Least Developed Countries, TD/B/COM.2/EM.9/2 of 1 June 2001, pp. 5–6 that examines various treaties on “best efforts” international co-operation. Examples of such treaty provisions include Arts. 9 and 10A of the Montreal Protocol on Substances that Deplete the Ozone Layer, 26 ILM 1550 (1987); Art. 16 of the Biodiversity Convention, 31 ILM 818 (1992); Art. 66 (2) of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), 33 ILM 1197 (1994) and Art. 10(c) of the Kyoto Protocol to the United Nations Framework Convention on Climate Change, 37 ILM 22 (1998).

  104. 104.

    Li (1994), pp. 128–130; Yusuf (1991), p. 691 at 695 and Weidner (1983), pp. 205–228.

  105. 105.

    See below the section dealing with the position on the transfer of technology under the 1994 Agreement.

  106. 106.

    See the example of South Korea, which embarked on the practice of importing technology and then acquiring the know-how of these technologies. See generally Enos and Park (1987). The Report of the World Summit on Sustainable Development, (WSSD) Johannesburg, South Africa, 26 August – 4 September 2002, as one of the means of achieving sustainable development in African states in para. 62(c) of that action must be taken at all levels to, “Promote technology development, transfer and diffusion to Africa and further develop technology and knowledge available in Africa centres of excellence”. See also para. 62(d)-(f) of the Report. http://daccessdds.un.org/doc/UNDOC/GEN/NO3/204/23/PDF/NO320423.pdf?OpenElement.

  107. 107.

    See for example on Nigeria, Omorogbe (1991), pp. 157–171.

  108. 108.

    Oyelaran-Oyeyinka (2001). See also Kanaan (2000), pp. 519–531; Omorogbe (1991) and Aremu (1998), pp. 127–170.

  109. 109.

    See “An Outline on the Implementation of Strategy and Programme of Action Adopted by Regional Leadership Seminar on Marine/Ocean Affairs in Africa – Addis Ababa 28 March-2nd April 1994” in Mensah (1996), pp. 540–549.

  110. 110.

    Arts. 275–277. Also see the Final Act of UNCLOS III, Annex VI, The Resolution on Development of National Marine Science, Technology and Ocean Service Infrastructures. For efforts by various international organisations as regards the development and transfer of marine science and technology to the African continent, see Kwiatkowska (1993), pp. 11 at pp. 34–41.

  111. 111.

    See Borgese (1998), pp. 148–151.

  112. 112.

    Art. 274 (d). See Arts. 171–175 on the financial arrangements of the ISA.

  113. 113.

    See Art. 3(d) of the Proposal of the Group of 77, A/CONF.62/C.3/L.12, UNCLOS III Official Records, Vol. III, p. 253, which proposed the establishing of a special fund to assist developing states with the acquisition of the necessary equipment and know-how for the exploration and exploitation of marine resources. This proposal was not incorporated into the LOSC provisions. See, however, Art. 4 of the Resolution on the Development of National Marine Science, Technology and Ocean Service Infrastructures adopted by the UNCLOS III at the 182nd meeting on 30 April 1982, Document A/CONF.62/120 of 7 May 1982, UNCLOS III Official Records Vol. XVI, pp. 176–177. This resolution recommends the participation of the World Bank, the Regional Banks, the United Nations Development Programme, the United Nations Financing System for Science and Technology and other Multilateral Funding Agencies in the funding of marine technology development of developing states. See also Li (1994), pp. 156–162.

  114. 114.

    For example the Global Environment Facility (GEF). http://www.gefweb.org/GEF_Instrument3.pdf. See Boisson de Chazournes (1999), pp. 243–285. See also Arts. 16, 20 and 21 of the Biodiversity Convention, 31 ILM 818(1992) and Arts. 5 and 10 of the Montreal Protocol on Substances that Deplete the Ozone Layer, 26 ILM 1541(1987). On Africa and the Biodiversity Convention, see Juma (1999).

  115. 115.

    See Borgese (1998), pp. 145–149.

  116. 116.

    See “Information Note concerning the Secretary-General’s informal consultation on outstanding issues relating to the deep seabed mining provisions of the UN Convention on the Law of the Sea, New York, 25 March 1991” in International Seabed Authority (2002b) at p. 15.

  117. 117.

    Section 5, paras. 1 and 2 of the Annex to the Agreement.

  118. 118.

    Section 5, para. 1 of the Annex to the Agreement.

  119. 119.

    See Art. 144 and Part XIV of LOSC.

  120. 120.

    Section 5, para. 1(b) of the Annex to the Agreement.

  121. 121.

    Art. 7 of the TRIPS Agreement. 33 ILM 1197(1994). See also Art. 8 (2).

  122. 122.

    See again Art. 7 of the TRIPS Agreement incorporating these two almost opposing objectives-transfer of technology and promotion of intellectual innovation - in the same article.

  123. 123.

    Correa (2000), p. 5.

  124. 124.

    Correa (2000), pp. 19 and 31.

  125. 125.

    Correa (2000), p. 19.

  126. 126.

    Correa (2000). See, e.g. Art. 26 of TRIPS.

  127. 127.

    Art. 8 (1) of TRIPS.

  128. 128.

    Part VI, Arts. 65–66 of TRIPS.

  129. 129.

    See generally Correa (2000), pp. 30–31.

  130. 130.

    See para. 5 of the 1970 Lusaka Statement on the Seabed by Non-Aligned Countries, Doc. NAC/CONF.3/Res.11, which required the regime to, “… make adequate provisions to minimise fluctuation of prices of land minerals and raw materials that may result from such activities [production activities in the Area]”.

  131. 131.

    Mahmoudi (1987), pp. 30–31; Ogley (1984), pp. 180–193; Friedheim (1993), pp. 248–255.

  132. 132.

    Report of the Secretary-General on the Possible Impact of the Convention, with special reference to Art. 151, on developing countries which are producers and exporters of minerals to be extracted from the Area, Documents A/CONF.6/L.84 and ADD.1 of 2 March, 1982; UNCLOS Official Records Vol. XVI, pp. 177–196.

  133. 133.

    Ogley (1984), pp. 180–181 and 190.

  134. 134.

    UNCLOS III, Official Records, Vol. XVI, p. 189.

  135. 135.

    UNCLOS III, Official Records, Vol. XVI, p. 190.

  136. 136.

    UNCLOS III, Official Records, Vol. XVI, p. 190.

  137. 137.

    In 1997, at a meeting of copper industry experts in Africa held in Durban, South Africa, it was pointed out that Africa contains 17.6% of world copper reserves, a crucial mineral located in the Area. See the “Report of the Copper Industry Experts Meeting on the Prospects for Increased Production and Intra-African Trade in Copper Metal and Copper-based Products”, adopted as part of the Report of the Second Regional Conference of African Ministers Responsible for the Development and Utilisation of Mineral and Energy Resources, Durban, South Africa, 21–22 November 1997. http://www.uneca.org/eca_resources/Publications/RCID/old/97_conf_ministers_mineral.htm.

  138. 138.

    See United States Department of the Interior and Geological Survey, Mineral Commodity Summaries 2008. http://minerals.usgs.gov/minerals/pubs/mcs/2008/mcs2008.pdf.

  139. 139.

    See, for example, statements in UNCLOS III, Official Records, Vol. XVI, p. 169 by representatives of the following African states: Zambia, paras. 5, 11 and 14; Zaire, para. 6, and Zimbabwe, para. 6. Also in UNCLOS III Official Records, Vol. XIII: Zaire, pp. 37–38, paras. 77 and 78 and Kenya, p. 44, para. 164.

  140. 140.

    See, for example, DOALOS, Law of the Sea Bulletin No. 8 at p. 45. For more on the work of the PrepCom in this regard, see Mahmoudi (1987), pp. 324–326.

  141. 141.

    See Brown (1992b), pp. 123–131.

  142. 142.

    For more details, see Brown (1986), pp. II.4 21–33 and Jagota (1991), p. 915 at pp. 926–927.

  143. 143.

    Professor E.D. Brown used this classification. See Brown (1986), p. 124.

  144. 144.

    Art. 150(h) of LOSC. See Brown (1986), pp. 124–125.

  145. 145.

    In the UN General Assembly Resolution titled, “Strengthening and Development of the World Market and Improvement of the Trade Conditions of the Economically Less Developed Countries”, G.A. Res. 1421/XIV of 5 December 1959, it was stated that “it would be desirable to work out, within the United Nations and other appropriate forums, measures to promote the stabilisation of the commodity markets and the development of trade between the highly developed and less developed countries on a reciprocally beneficial and non-discriminatory basis, including, where appropriate, short, medium or long-term trade international commodity agreements and the establishment of international study groups”.

    http://ods-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/142/44/IMG/NR014244.pdf?OpenElement.

    Art. 6 of the Charter of Economic Rights and Duties of States, G.A. Res. 3281/XXIX of 12 December 1974 provided as follows: “It is the duty of States to contribute to the development of international trade of goods, particularly by means of arrangements and by the conclusion of long-term multilateral commodity agreements, where appropriate, and taking into account the interests of producers and consumers. All States share the responsibility to promote the regular flow and access of all commercial goods traded at stable, remunerative and equitable prices, thus contributing to the equitable development of the world economy taking into account, in particular, the interests of developing countries”.

    http://ods-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/738/83/IMG/NR073883.pdf?OpenElement.

    See generally on Commodity Agreements and Arrangements, Khan (1982) and Kohona (1985), pp. 61–66.

  146. 146.

    Art. 151 (1) (a) of LOSC.

  147. 147.

    Art. 151(1) (b) of LOSC.

  148. 148.

    Art. 151 (1) (c) of LOSC.

  149. 149.

    Art. 151 (2)-(9) of LOSC.

  150. 150.

    Art. 151 (4)-(6) of LOSC.

  151. 151.

    Art. 151 (7) of LOSC.

  152. 152.

    Art. 151 (9) of LOSC.

  153. 153.

    Art. 151 (10) of LOSC. For a similar compensatory mechanism, see the special financing facility (SYSMIN) under the EC/ACP Lome IV Convention. This was an EC compensatory finance scheme to stabilise export earnings in respect of mineral resources of ACP States. See Arts. 214–219 of Lome IV Convention, 29 I.L.M.783 (1990).

  154. 154.

    See “Information Note concerning the Secretary-General’s informal consultation on outstanding issues relating to the deep seabed mining provisions of the UN Convention on the Law of the Sea, New York, 25 March 1991” in International Seabed Authority (2002b), pp. 16–17.

  155. 155.

    Annex, Sect. 6, para. 7.

  156. 156.

    Annex, Sect. 6, para. 1 (a).

  157. 157.

    Annex, Sect. 6, para. 1 (b).

  158. 158.

    Annex, Sect. 6, para. 1(c). See the WTO Agreement on Subsidies and Countervailing Measures http://www.wto.org/english/docs_e/legal_e/24-scm.pdf. Art. 1 of the Agreement gives the definition of a subsidy.

  159. 159.

    Annex, Sect. 6, para. 1 (g).

  160. 160.

    Annex, Sect. 6, para. 3. See Arts. 3–6 of the WTO Agreement on Subsidies and Countervailing Measures on prohibited subsidies and remedies available to affected member states.

  161. 161.

    Section 6, para. 1(d).

  162. 162.

    Section 6, para. 1(e).

  163. 163.

    See Fasan (2003), pp. 143 at 155–162.

  164. 164.

    Para. 9 of the Abuja Ministerial Declaration, Fourth Ministerial Conference of the WTO (22–23 September 2001), OAU/AEC/TD/MIN/Decl.1 (IV) Rev.3 of 23 September 2001. http://www.uneca.org/eca_resources/Conference_Reports_and_Other_Documents/espd/2001/WTO_related/Declaration.Final.PDF.

  165. 165.

    For example see Art. 27 of the Agreement on Subsidies and Countervailing Measures. Further see Bulajic (1991), pp. 637–638 and para. 4 of the Abuja Ministerial Declaration (2001). Also see the United States of America’s negative position on S&D to developing states at the Doha negotiations of the WTO in Raghavan (2002), http://www.twnside.org.sg/title/5247a.htm quoted in Chimni (2004), p. 1 at 8.

  166. 166.

    Statement by the Special Representative of the President, 23 Feburary 1982, DEPT. ST. BULL., May 1982 quoted in Oxman (1994), p. 691.

  167. 167.

    See Bennouna (1991), pp. 619 at 624–625; Yusuf (1982), pp. 24–41.

  168. 168.

    Section 7. See Nelson (1995), p. 191 at 199.

  169. 169.

    Section 7. See Nelson (1995), p. 191 at 199, para. 1(c).

  170. 170.

    Section 7. See Nelson (1995), p. 191 at 199, para. 1(b).

  171. 171.

    The Fund has since been established. See Regulation 5.8 of the ISA’s Financial Regulations which became effective on 23 March 2000, ISBA/6/A/3, of 28 March 2000. See Brown (1992b), p. 130.

  172. 172.

    Section 7, para. 1(a) of the Annex to the Agreement.

  173. 173.

    Section 7, para. 1(a) of the Annex to the Agreement.

  174. 174.

    See Sect. 5.1.3.1 of Chap. 5 of this book.

  175. 175.

    See Brown (1995) at p. 13.

  176. 176.

    Section 7, para. 1(d) of the Annex to the Agreement.

  177. 177.

    On how internal policies of African nations are controlled by industrialised nation dominated international aid bodies see Lancaster (1999), pp. 74–82.

  178. 178.

    Harris (1989) and Onimode (1989), pp. 19–24 and 25–33 respectively; see also Toussaint and Drucker (1995).

  179. 179.

    Annex III, Art. 13 (1) of LOSC.

  180. 180.

    See Brown (1992b), pp. 136–137. For more on the negotiations in the Conference concerning financial terms of the contract, see Ogley (1984), pp. 156–161.

  181. 181.

    See the statement of the Chairman of the Working Group of 21, UNCLOS III Official Records Vol. XII, p. 78.

  182. 182.

    See Report of the Chairman of Negotiating Group 2 to the First Committee, NG2/10/Rev.1 of 14 September 1978, UNCLOS III, Official Records Vol. X, pp. 63 and 144 and Brown (1992b), p. 136.

  183. 183.

    Brown (1992b), p. 135.

  184. 184.

    See Chap. 5 of this book.

  185. 185.

    See Art. 13 (1)-(15) of Annex III to LOSC. For details, see Brown (1986), pp. II.4 37–48; Jagota (1991), pp. 927–928.

  186. 186.

    Art. 13 (2) of Annex III to the LOSC.

  187. 187.

    Art. 13 (3) of Annex III.

  188. 188.

    Art. 13 (4) of Annex III.

  189. 189.

    Art. 13 (12) of Annex III.

  190. 190.

    Art. 13 (5)-(15) of Annex III.

  191. 191.

    “Information Note concerning the Secretary-General’s informal consultation on outstanding issues relating to the deep seabed mining provisions of the UN Convention on the Law of the Sea, New York, 25 March 1991” in International Seabed Authority (2002b), p. 18.

  192. 192.

    Section 8, para. 3 and Sect. 1, para. 6(a) (ii) of the Agreement.

  193. 193.

    The Agreement in Sect. 8, para. 2 states that the provisions of Annex III Art. 13, paras. 3–10 shall not apply.

  194. 194.

    Section 8, para. 1 (a)–(f) of the Agreement. See for details Brown (2001), pp. 134–140.

  195. 195.

    Brown (2001), pp. 134–140.

  196. 196.

    Mahmoudi (1987), p. 222.

  197. 197.

    Mahmoudi (1987), p. 222.

  198. 198.

    Brown (1986), p. II.3, 9.

  199. 199.

    Brown (1986), p. II.4 7–10.

  200. 200.

    See Chap. 5 of this book on institutions.

  201. 201.

    Art. 154 of LOSC. The first of such review was conducted in 2000, during the sixth session of the ISA. However, the Assembly accepted the advice of the Secretary-General of the ISA that because of the brief experience in implementing the regime it would be premature to take or recommend any measures. The second Periodic Review was done in 2005. Again, the Assembly did not consider it necessary to take or recommend any measures. The third of such Review is to be conducted in 2010. See para. 84 of the Report of the Secretary-General of the International Seabed Authority under Art. 166, para. 4, of the United Nations Convention on the Law of the Sea, ISBA/13/A/2 of 29 May 2007.

  202. 202.

    Art. 155 (1) (a)-(f) of LOSC.

  203. 203.

    Art. 155 (2) of LOSC.

  204. 204.

    Art. 155 (3) of LOSC.

  205. 205.

    Art. 155 (4) of LOSC.

  206. 206.

    Art. 155 (5) of LOSC.

  207. 207.

    See UNCLOS III Official Record, vol. IX, p. 25 at para. 40; UNCLOS III Official Record, vol. X, p. 26, UNCLOS III Official Record, Vol. XIII, pp. 113 and 137.

  208. 208.

    “Information Note concerning the Secretary-General’s informal consultation on outstanding issues relating to the deep seabed mining provisions of the UN Convention on the Law of the Sea, New York, 25 March 1991” in International Seabed Authority (2002b), p. 20.

  209. 209.

    Art. 40 (4) of the Vienna Convention on the Law of Treaties (VCLT) 1969 provides “The amending agreement does not bind any state already a party to the treaty which does not become a party to the amending agreement …”.

  210. 210.

    Art. 40 (1) of VCLT states “Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs”. (emphasis added).

  211. 211.

    Section 4 of the Annex to the Agreement.

  212. 212.

    Section 4 of the Annex to the Agreement.

  213. 213.

    Section 4 of the Annex to the Agreement. These formal amendment procedures have so far not been utilised by states parties to the LOSC. See Freestone and Oude Elferink (2004).

  214. 214.

    Art. 314 (2) of LOSC.

  215. 215.

    Section 4 of the Annex to the Agreement.

  216. 216.

    Art. 314(1) of LOSC.

  217. 217.

    Art. 161 (7) (d) of LOSC. See Sect. 3, para. 5 of the Agreement, which excludes decisions that under the LOSC must be taken by consensus in the Council. See Sect. 4.1.3.1(II) (iii) of Chap. 4 on decision-making in the Council.

  218. 218.

    Section 4 of the Annex to the Agreement.

  219. 219.

    Even before the Informal Consultations, the Group of 77, through its Zambian Chairman, had indicated the Group’s willingness to address specific concerns of the industrialised states in respect of Part XI as far as August 1989. See Anderson (1993), pp. 654 at 657.

  220. 220.

    “Introduction” in International Seabed Authority (2002b), pp. 1–5.

  221. 221.

    See Frank Njenga’s Commentary in Mensah (1996), pp. 261–262.

  222. 222.

    Njenga’s intervention from the floor, Ibid at pp. 271 and 273. However, contradicting this position, see the intervention from the floor of Barbara Kwiatkowska and Wesley Scholz Ibid at, pp. 267 and 263 respectively.

  223. 223.

    Ibid at, p. 262.

  224. 224.

    Ibid.

  225. 225.

    For example, at the informal consultation held on 19 July 1990 the Secretary-General of the United Nations acknowledged the presence of Ambassador Jose Luis Jesus of Cape Verde (also chairperson of the PrepCom) and even at the informal consultation held on 23 July 1991 the Tanzanian Ambassador is recorded to have raised some procedural points. See “Introductory Remarks by the Secretary-General for the Informal Consultation on the Law of the Sea, 19 July 1990” and “Mr. Nandan’s summary at the conclusion of the Secretary-General’s Informal Consultation on outstanding issues relating to the deep seabed mining provisions of the UN Convention on the Law of the Sea, 23 July 1991” in International Seabed Authority (2002b), pp. 9 and 32.

  226. 226.

    UNCLOS III, Official Records, Vol. III, pp. 63–65.

  227. 227.

    “Introductory Remarks by the Secretary-General for the Informal Consultation on the Law of the Sea, 19 July 1990” in International Seabed Authority (2002b), pp. 9–10. Also see at the 100th meeting of the 48th session of the General Assembly the comments of the Kenyan representative, Mr. Muthaura, basically rehashing the reasons given by the Secretary-General as the reason why many states, including those that had already ratified the LOSC, accepted the draft 1994 Agreement. General Assembly, forty-eighth session, Official Records, A/48/PV.100 of 27 July 1994, p. 5.

  228. 228.

    Algeria, Benin, Botswana, Cameroon, Cape Verde, Congo, Cote d’ Ivoire, Egypt, Eritrea, Ethiopia, Gabon, Ghana, Kenya, Libya, Madagascar, Mauritius, Morocco, Mozambique, Namibia, Nigeria, Senegal, Seychelles, South Africa, Sudan, Togo, Tunisia, Uganda, Tanzania and Zimbabwe voted in favour of the Resolution. See Law of the Sea Bulletin, Special Issue IV, 16 November 1994, p. 7. There are presently 24 African states that are parties to the Agreement. See Table 1.1 of this book for the number of African states that are parties to the Agreement.

  229. 229.

    On other factors influencing the need for the 1994 Agreement, see Joyner (1996), pp. 41–58, especially at pp. 49–50; Charney (1992), pp. 279–303; Anderson (1993), pp. 654–664 and Anderson (1994), pp. 886–893 respectively; and Baslar (1998), pp. 205–220.

  230. 230.

    See, for example, the comments of the representative of Algeria, Mr. Lamamra, to the 100th plenary meeting of the 48th session of the General Assembly as follows: “It should be noted that, at times, some provisions of the draft Agreement [1994 Agreement] go well beyond mere implementation of certain provisions of Part XI of the Convention and often introduce substantive modifications of the original text. Yet realism led my delegation to agree with the terms of the draft Agreement, which in the circumstances are the only possible basis for promoting universal acceptance of the Convention, in particular by the world’s largest maritime Powers”. General Assembly, forty-eighth session, Official Records, A/48/PV.100 of 27 July 1994, p. 26.

  231. 231.

    Law of the Sea Bulletin, Special Issue IV, 16 November 1994, p. 1.

  232. 232.

    Law of the Sea Bulletin, Special Issue IV, 16 November 1994, p. 1.

  233. 233.

    See Makalou (1999) and Harsch (2000), http://www.un.org/ecosocdev/geninfo/afrec/vol14no1/apr00.htm.

  234. 234.

    Harsch (2000), http://www.un.org/ecosocdev/geninfo/afrec/vol14no1/apr00.htm.

  235. 235.

    “Special Advertising Section, World Focus – Egypt”, Time Magazine, Vol. 160(22), 25 November 2002, p. 2.

  236. 236.

    “Special Advertising Section, World Focus – Egypt”, Time Magazine, Vol. 160(22), 25 November 2002, p. 2.

  237. 237.

    See, for example, Sects. 5, 6 and 8 of the Annex to the Agreement.

  238. 238.

    See Sect. 1 of the Annex to the Agreement.

  239. 239.

    Alternative Cost-Effective Models for Pioneer Cooperation in Exploration and Technology Development and Training: Joint Study by the IOI and AALCC (1989) in NILOS (1991), pp. 558–594. This study arose out of a joint seminar of the AALCC and IOI organised during the 8th Summer Session of the PRECOM in August 1990.

  240. 240.

    See Njenga (1991). See also Doc. AALCC/XXX/CAIRO/91/7 in NILOS (1990), pp. 524–544.

  241. 241.

    As on 14 April 2008, 57 members of the ISA, mainly developing states, were in arrears for a period of 2 years or more in respect of payment of their contributions, out of which 25 were African states (Benin, Burkina Faso, Cape Verde, Comoros, Cote d’ Ivoire, the Democratic Republic of Congo, Djibouti, Equatorial Guinea, the Gambia, Guinea, Guinea-Bissau, Mali, Mauritania, Mozambique, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Somalia, the Sudan, Togo, Uganda, United Republic of Tanzania, Zambia and Zimbabwe). See para. 58 of the Report of the Secretary-General of the International Seabed Authority under Art. 166, para. 4, of the United Nations Convention on the Law of the Sea, ISBA/10/A/3 of 31 March 2004.

  242. 242.

    See Part II of Chap. 4.

  243. 243.

    Marffy-Mantuano (1995), p. 815.

  244. 244.

    Law of the Sea Bulletin, Special Issue IV, 16 November 1994, p. 1.

  245. 245.

    Thatcher (2002), p. 25. On the Cold War, see LaFeber (1991).

  246. 246.

    Okoth (2001); Reisman (1990), p. 859 at 863.

  247. 247.

    This is not, however, to suggest that even in the heat of the Cold War the two superpowers did not in certain situations, even including the issue of the seabed regime, have common interests to protect. For example at the initial stages of negotiations at UNCLOS III, the then two superpowers both took the position that the Authority should not have the exclusive right to explore and exploit the Area. The only point of divergence appears to have been based on ideology. For the USA its preference was for private companies to be the ones to engage in seabed mining while the then USSR wanted it to be only States that should be engaged in such mining. See Ogley (1984), pp. 34–36 and 148–149 and Mahmoudi (1987), pp. 180–182.

  248. 248.

    See Callaghy (2000), p. 43 at 44. For another view, see Aka (2001), pp. 187–221, where the writer argues that the whole notion of marginalisation of Africa because of superpower disengagement is misleading.

  249. 249.

    See Charney (1992), p. 282; Schmidt (1989), pp. 103–213; Larson (1984–1985), p. 337 at 338–339 and Larson (1985), pp. 99 at 101, 123–124.

  250. 250.

    For example, in the domestic setting of most industrialised states operating the free market economy there are certain social security benefits for poor persons and special provisions for disabled members of the society.

  251. 251.

    See Art. 160(2)(k) of LOSC that gives the Assembly the power “to consider problems of a general nature in connection with activities in the Area arising in particular for developing states, as well as those problems for states in connection with activities in the Area that are due to their geographical location, particularly for landlocked and geographically disadvantaged states”. On the participation of African states in deep seabed mining, the issues are further examined in Chap. 5 and 6.

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  1. Department of Politics, Cardiff University, Park Place 65-68, CF10 3AS, Cardiff, United Kingdom

    Dr. Edwin Egede (Lecturer in international law & international relations)

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Egede, E. (2011). Africa and Part XI of Law of the Sea Convention (LOSC) 1982 Provisions, as Amended by the 1994 Implementation Agreement. In: Africa and the Deep Seabed Regime: Politics and International Law of the Common Heritage of Mankind. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-17662-3_4

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