Bernaerts' Guide _UNCLOS 1982
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BASIC CONDITIONS OF PROSPECTING,  EXPLORATION AND EXPLOITATION

Section: Annex III -  LINK: Full Text

Basic conditions for a deep-sea mining contract will be the regulations of this Annex, sup­plemented by the particular rules, regulations, and procedures to be adopted by the Authority[1] and which are now under consideration by the Preparatory Commission[2]. In general, activities in the Area may be undertaken by the organ of the Authority, the Enterprise (see next chapter), or by others, who can be a state party or its nationals, including state enterprises an natural or Juridical persons[3]. Sponsorship of a state party is obligatory for the latter[4]. The basis for mining rights is a contract to be concluded between the Sea-Bed Authority and the applicant[5]. The Authority is to approve applications, provided that they are in accordance with the uniform and non-discriminatory requirements set forth in the regulations of the Authority and consistent with the Convention[6]. Each application is to indicate one or more areas which in total are sufficiently large to allow two mining operations[7]. Half of the indicated area is to be reserved for the Enterprise (or for developing states), it is the responsibility of the Authority to designate which within forty five (ninety) days[8]. When on the basis of such an application a contract has been concluded, the part for the Enterprise is known as a reserved area, and the contractor has exclusive rights for the other part[9]. The application is to be based on a plan of work[10], which must include the applicant's pledge[11] to (a) accept rules, regulations, and Authority decisions, (b) accept the control of the Authority[12], (c) fulfil the contract in good faith, and (d) comply with provisions for transfer of technology The financial terms of the contract are regulated and provide for application and minimum annual fees and a production charge (but negotiations over financial terms are not completely excluded)[13].  The contractor has the option of paying a flat-rate "socialist" production charge of 5% annually of commercial production for the first decade and 12% annually thereafter or a "capitalist" charge, described in great detail, based on a combination of a percentage of production and a share of net proceeds[14].  These two modes of contribution were established out of deference to the two economic systems of East and West A contractor's calculations should take two basic conditions into account (a) the mining site is to be of sufficient estimated value and of a size to satisfy the objective[15], and (b) the contractor is obligated to obtain a production authorization before he commences work[16]. A production authorization establishes a fixed amount of nickel which may be recovered from mining operations under the contract[17]. A general production ceiling is to be fixed annually[18], which is of importance when selection is made among applicants for a production authorization[19]. (General production ceiling less amount of production authorizations issued equals possible amount for new production authorizations.)

[1] AIII, Art. 17,  
[2] RI, Art. 5, Subpara. (g),   
[3]
Art. 153, Subpara. 2 (b); AIII, Art. 3, Para. 1,  
[4]
AIII, Art. 4, Para. 1&3,  
[5] AIII, Art. 3, Para. 5,   
[6]
Art. 153, Para.1; AIII, Art. 3, Para. 4; AIII, Art. 6, Para. 3,  
[18] Art. 312-316

All other states, whether they signed the Convention (possible until December 9, 1984[12]) or not, cannot be forced to apply the Convention, although this does not exclude the possibility that provisions of the Convention might acquire the force of customary international law and would therefore find application as such. In addition, all states which signed the Convention (as of the final deadline in 1984, there was a total of 159 signatures, not all of them from states) must refrain from acts which are contrary to the objectives of the Convention, unless they declare they are no longer willing to be bound by their signature or behave in a manner which would be tantamount to such a declaration. However, the state's signature means that the state is allowed to participate in the Preparatory Commission[13] which is to prepare the installation of the Sea-Bed Authority and the Tribunal for the Law of the Sea. The Authority will acquire international legal personality[14] at the moment the Convention enters into force and can immediately thereupon begin to operate in accordance with the Convention[15]. The Tribunal is then constituted[16].

A state party may at any time denounce the Convention, either with or without indication of its reasons; the denunciation takes effect one year after the date of notification unless a later date is specified in the notification[17].

The Convention includes provisions for amending or establishing alternatives to present regulations contained in the Convention[18].

[1] Art. 305,   [2] Art. 306,    [3] Art. 307,    [4] Art. 308, Para . 1,    [5] Art. 306-307; 319, Para . 1,    [6] Art. 1, Subpara. 2(1),    [7] Art. 311, Para.2,    [8] Art. 311, Para . 3,    [9] Art. 309,    [10] Art. 310 (Disputes: 297-298),   [11] Art. 311, Para.3-6,    [12] Art. 305, Para.2,    [13] Final Act, Res. I,    [14] Art. 156, 176,    [15] Art. 308, Para.3-5,    [16] Annex VI, Art. 1(1),    [17] Art. 317,    [18] Art. 312-316,   

Further Readings :  
 
- The General Effects of the Convention. (Introduction),     

 
- State and States Parties. (Commentary);      
- United Nations Organization. (Commentary)

Final Provisions - UNCLOS 1982

NEXT page 82

Book published:
1988 Fairplay/UK,
2005 (reprint) by

Trafford Publishing,
1663 Liberty Drive Suite 200
Bloomington, IN 47403, Canada.

 
329 pages, ISBN 1-4120-7665-x;


Available via online-contributer 


 
 

            

 


 
Online – Edition
1988/2006

 
Bernaerts' Guide to the 
1982 United Nations
Convention on the Law of the Sea

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Bernaerts Guide -UNCLOS 1982

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Preface of the reprint in 2005

More than 15 years ago FAIRPLAY PUBLICATIONS Ltd, Coulsdon, Surrey, England, published the book "Bernaerts' Guide to the Law of the Sea - The 1982 United Nations Convention". The guiding potential of the book to find access to the Law of the Sea Convention is still given. Internet technology and publishing on demand invite to provide the interested reader and researcher with this tool again. Only the Status of the Convention (ratification etc) has been updated and instead of the Final Act, the book edition includes the "Agreement relating to the Implementation of Part XI of the United Nations Convention of the Law of the Sea" of 1994. The corresponding web site neither includes the text of the 1982 Convention, nor the Agreement of 1994. The thorough Index of the 1988 edition is reproduced without changes.
Arnd Bernaerts, October 2005,
Comments 1988-1990
___"an invaluable guide to the understanding and implementation of the 1982 United Nations Convention on the Law of the Sea"
Satya N. Nandan, U.N. Undersecretay, in: Book Foreword, 1988
__"clearly presented" R.R. Churchill, in: Maritime Policy & Management 1989, p. 340
__"the (book's) concept, which is so wonderful simple, is exactly the factor which makes the book so useful for both the novice as well as the person with extensive experience"
M. Bonefeld, in: Verfassung und Recht, 1989, pp. 83-85
__"the work contains much useful background information…." R.W. Bentham, in: Journal of Energy & Natural Resource Law, 1989, p. 336
__"Bernaerts has saved us a struggle" JG, in: Fairplay Shipping Weekly Magazin, 13th October 1988, p. 33
__"this is probably the best edition on the Convention to put into the hands of students"
A.V. Lowe, in: Int'l and Comparative Law Quarterly 1990, p. 16
__"it will be an invaluable reference tool and should sit on the book shelves of policy makers and all others who are involved in maritime matters"
Vivian I. Forbes, in: The Indian Ocean Review, May 1990, p.10

Bernaerts’s Guide to the 1982 United Nations Convention on the Law of the Sea

FOREWORD of the 1988 edition
by Satya N. Nandan
 
Special Representative of the Secretary-General of the United Nations for the Law of the Sea Office for Ocean Affairs and the Law of the Sea

Revolutionary changes have taken place in the International Law of the Sea since 1945. The process of change was accelerated in the last two decades by the convening in 1973 of the Third United Nations Conference on the Law of the Sea. The protracted negotiations, spanning over a decade, culminated in the adoption of the United Nations Convention on the Law of the Sea in 1982. By 9 December 1984, the closing date for signature, 159 signatures were appended to the Convention, the largest number for any such multilateral instrument in the history of international relations.

The Convention, which was adopted as a comprehensive package, introduced a new equity in the relationship among states with respect to the uses of the ocean and the allocation of its resources. It deals, inter alia, with sovereignty and jurisdiction of states, navigation and marine transport, over flight of aircraft, marine pollution, marine scientific research, marine technology, conservation and exploitation of marine living resources, the development and-exploitation of marine non-living resources in national and international areas, and unique provisions dealing with the settlement of disputes concerning the interpretation and application of the new regime.

There is no doubt that as we approach the 21st century, more and more attention will be paid to the uses of the oceans and the development of their resources. It is important, therefore, that these developments should take place within a widely accepted legal framework so that there is certainty as to the rights and obligations of all states. The United Nations Convention on the Law of the Sea provides that framework. It establishes a standard for the conduct of states in maritime matters. It is thus a major instrument for preventing conflicts among states.

The convention and its annexes contain over 400 articles. For many it may be a formidable undertaking to grasp the substance and structure of it without making a considerable investment in time and energy. Mr Bernaerts' guide, therefore, is a welcome addition to the growing body of literature on the convention. It provides a most useful reference tool which will benefit administrators and policy makers, as well as scholars. It makes the convention accessible to the uninitiated and refreshes, at a glance, the memories of the initiated. With meticulous references and graphic presentations of the provisions of the convention, Mr Bernaerts has given to the international community an invaluable guide to the understanding and implementation of the 1982 United Nations Convention on the Law of the Sea.
April 1988


PREFACE (extract) of the 1988 edition

 
The reader will be aware that the 1982 United Nations Convention on the Law of the Sea is the first constitution of the oceans, a ground-breaking document in many respects. He or she might also have made the discovery that the full text of the Convention is immediately accessible only to experts. If the Convention were only a treaty consisting of straightforward technical regulatory provisions, it could be left to them with a clear conscience. But the Convention is to a large extent a political document and, as such, is expected to influence significantly the development of relations among the states in the world community; for this reason, a wide-spread knowledge of the scope, goals, and regulatory framework of the Convention can only serve to further the aims of the document and would surely follow the intentions of the many men and women who made this Convention their life-work, such as Arvid Pardo (Malta), Hamilton Shirtey Amerasinghe (Sri Lanka), Tommy T. B. Koh (Singapore), and Satya N. Nandan (Fiji), to name only a few of the hundreds who worked on the preparation of this Convention.
 
As the reader uses the Guide (Part II), he will find that many provisions of the Convention are much easier to understand if one knows the basic framework within which a particular regulation is placed. The Guide aims to provide this framework, with reference to the text of the Convention and, in addition, t& the supporting Commentary of Part III, which describes the overall context of the major terms arid concepts. The Introduction of Part I sketches the historical background of the Convention and some of the general effects. A detailed index at the end of the book will be of assistance in finding specific subjects.

 

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