Observers Report 28th Meeting of the States Parties to the United Nations Convention on the Law of the Sea Headquarters of the United Nations New York, United States 11-14 June 2018 Authors: Elizabeth Rodríguez-Santiago, Tracy Roosevelt, Peter Tzeng, Jonathan Brosseau-Rioux I. Introduction The Meeting of the States Parties to the United Nations Convention on the Law of the Sea ( SPLOS ) convenes periodically, in accordance with article 319, paragraph 2 (e), of UNCLOS, which provides that the Secretary-General of the United Nations ( UN ), shall convene necessary meetings of States Parties in accordance with this Convention. 1 The Meeting addresses a wide variety of issues. For example, it deals a number of administrative matters regarding the International Tribunal for the Law of the Sea ( ITLOS ) and the Commission on the Limits of the Continental Shelf ( CLCS ). It also receives reports from the Secretary-General of the International Seabed Authority ( ISA ) and from the UN Secretary- General on issues that have arisen regarding UNCLOS that are relevant to States parties. The nature of the issues addressed varies each year according to the circumstances. This Report summarizes nine matters covered at the 28th Meeting: the election of the President and Vice-Presidents of the Meeting (Section II); the report and the appointment of members of the Credentials Committee (Section III); matters concerning ITLOS (Section IV); matters concerning the ISA (Section V); matters concerning the CLCS (Section VI); reports under article 319 of UNCLOS (Section VII); matters concerning different trust funds (Section VIII); and side events (Section IX). II. Election of the President and the Vice-Presidents of the Meeting Ambassador Sven Jürgenson, from Estonia, was elected as President of the Meeting. The four Vice-Presidents, who assist the President in the conduct of his work, were also elected. These five individuals constitute the Bureau until the next Meeting is convened in 2019. III. Report and appointment of members of the Credentials Committee At the beginning of the session, the Meeting appointed the following members to the Credentials Committee: China, Finland, Ghana, Lesotho, Myanmar, Norway, and Ukraine. According to the 1 Two further General Assembly resolutions (49/28 and 52/26) requested that the Secretary-General continue preparing for and convening the Meetings of States Parties to the Convention and providing the necessary services for such meetings, in accordance with the Convention".. - 1 -
Committee s report, at the time of the Meeting, 69 States had presented formal credentials for their representatives and 43 had presented provisional information concerning the appointment of representatives. The Committee accepted the credentials of all 112 States on the understanding that formal credentials for the aforementioned 43 representatives would be communicated to the Secretariat as soon as possible. IV. Matters concerning ITLOS The ITLOS President, Mr. Jin-Hyun Paik, delivered a statement presenting the Tribunal s Annual Report, and the ITLOS Registrar, Mr. Philippe Gautier, delivered a statement on the budgetary matters of the Tribunal. A. The ITLOS President s Report Prior to the Meeting, the Tribunal s Annual Report for the year 2017 had been distributed under document number SPLOS/317. President Paik delivered a Statement addressing a number of issues, including the following. The President informed the participants that the seven judges elected at last year s Meeting began their terms of office on 1 October 2017. In early October 2017, Judge David Attard of Malta was also elected Vice-President of the Tribunal, and Judge Albert Hoffmann of South Africa was elected President of the Seabed Disputes Chamber. The President highlighted the judicial work of ITLOS in the Ghana/Côte D Ivoire case and the Special Chamber s judgment of 23 September 2017. Notably, the President emphasized three elements of the judgment. First, the Special Chamber concluded that evidence relating solely to the specific purpose of oil activities in the seabed and subsoil is of limited value in proving the existence of an all-purpose boundary which delimits not only the seabed and subsoil but also superjacent water columns (paragraph 226). Second, the Special Chamber adopted the Bay of Bengal delimitation methodology. According to the President, this shows a growing consensus on the delimitation of the continental shelf beyond 200 nautical miles (paragraph 526). Third, the Special Chamber provided needed guidance on the interpretation of article 83, paragraph 3, of the Convention. The Special Chamber, importantly, noted that this provision only establishes obligations of conduct (paragraphs 627 and 629). Further, the President presented the procedural history and calendar of the only currently pending case on the docket of the Tribunal, the M/V Norstar Case (Panama v. Italy). He also discussed the numerous activities of ITLOS in the field of capacity building, including the Tribunal s internship programme, Summer Academy, and regional workshops. Lastly, and of potentially great significance, the President noted that ITLOS is prepared to become the dispute settlement mechanism for the future international legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction ( BBNJ ), if the intergovernmental conference ( IGC ), which will begin in - 2 -
September 2018, so decides. He noted that whatever mechanisms the parties to the new instrument agree upon, the Tribunal stands ready to deal with any further legal tasks they wish to entrust it. B. The ITLOS Registrar s Report on budgetary matters 1. Budget report for 2015-2016 and 2017-2018 The Registrar of the Tribunal, Mr. Philippe Gautier, presented the Report on budgetary matters of the Tribunal for the financial periods of 2015-2016 and 2017-2018 (document SPLOS/318). He discussed a few discrete areas of the draft budget proposals of the Tribunal for 2019-2020: Part A (recurrent expenditures), Part B (non-recurrent expenditures), and Part C (case-related costs). For Part A, there is only a minor increase of 4,600 in comparison with Part A of the approved budget for 2017-2018. However, in individual areas of Part A there are increases such as in the Judges section because there has been a 9,000 increase in the remuneration to judges. Other additional allowances were made for judges. There were also additions made to the judges pension scheme including Pensions in payment (for current judges) and Pension for retiring judges (for judges whose terms of office expire 30 September 2020). Additions were also made to staff costs and operating expenditure and library costs. For Part B, there is a new provision of 140,000 for implementation of the International Public Sector Accounting Standards ( IPSAS ). These standards are issued by an international standardsetting body for use by public sector entities around the world in the preparation of financial statements. The Tribunal will start using these standards, and it aims to prepare the first IPSAScompliant financial statements by the end of the 2021-2022 financial period. For Part C, there has been a decrease of 716,700 in the appropriation as compared to the 2017-2018 budget, for a total amount of 2,690,100 for 2019-2020. The reduction is because last year the Tribunal had to deal with two cases on the merits, and this year they only have one. The budget includes 1,231,100 to deal with the M/V Norstar Case (Panama v. Italy) on the merits. The Registrar also reported on budgetary matters for the financial periods 2013-2014 and 2015-2016. He reported that auditors reviewed and certified a cash surplus of 183,676 for 2015-2016. He noted that this amount is actually a deficit rather than a surplus. He said that since the 2015-2016 cash surplus is negative, no funds can be surrendered to the States Parties at this stage. The Registrar asked to draw the attention of the meeting to the need for States Parties to pay their contributions on time. The Registrar noted that the total expenditure for 2017 stands provisionally at 8,967,272, representing 86.08 percent of the appropriations in the amount of 10,416,800 allocated for that year. He also noted that a provision in the amount of 3,406,800 was approved under Case-related costs for the 2017-2018 budget. For recurrent expenditure, the budget line communications under Operating expenditures was exceeded because of a firewall that was installed for the Tribunal s e-mail and online communications. The Registrar also reported on action taken pursuant - 3 -
to the Financial Regulations and Rules of the Tribunal, which deals with investment of the funds of the Tribunal and four specific trust funds. 2. Budget proposal for 2019-2020 The Registrar of the Tribunal also presented the draft budget proposal of the Tribunal for the period 2019-2020 (document SPLOS/2018/WP.1). The Meeting considered and approved the proposal, which assigned a budget of 20,521,200 for that period. The approved budget covers all aspects of the Tribunal s functioning with the exception of projects on capacity building, which are all covered by voluntary trust funds and are not included in the general budget. Without entering into the details of the budget, it is worth noting that the high cost of operating a tribunal, and the robust budget that ITLOS already has, is a factor that the States parties might want to take into account during the BBNJ negotiations while considering dispute settlement mechanisms under the future instrument. As the President of the Tribunal reiterated in his statement, ITLOS is prepared to become a dispute settlement body for the BBNJ instrument, if the IGC so decides. V. Matters concerning the ISA The Secretary-General of the International Seabed Authority, Mr. Michael Lodge, delivered information under agenda item 9. Secretary-General Lodge made introductory remarks. He explained that the Area is defined as the seabed and subsoil thereof beyond the limits of national jurisdiction. Therefore, establishing the exact geographic limits of the Area depends on the delimitation of the limits of national jurisdiction. Coastal States are obliged by the Convention (article 84, paragraph 2) to give due publicity to charts or lists of geographic coordinates of points, and to deposit a copy of charts or lists indicating the outer limits of the continental shelf. The Secretary-General expressed his gratitude to the eight members which have made those deposits, and urged all coastal States to do so. The Secretary-General welcomed Azerbaijan as a new member last year. He noted that there are still 18 States that have not ratified the Part XI Agreement even though they are parties to the Convention. He also reminded States Parties to join the Protocol on the Privileges and Immunities of the Authority. Secretary-General Lodge addressed the financial situation of the Authority. He reminded States Parties that contributions are due on 31 January of each year. He added that the amount of arrears has increased to almost $2.7 million, including $930,000 from prior financial periods. He informed that the number of States that are in arrears of two or more years stands at 51 and that, pursuant to article 184 of the Convention, the voting rights of these members are suspended. He reminded that the extended arrears have implications on the overall exercise of the Authority s functions and urged Members to fulfil their obligations without delay. The Secretary-General discussed the development of the first draft of the Strategic Plan. - 4 -
He also detailed the development of the Mining Code, which has taken place over the past four years. The Secretariat circulated a revised and consolidated draft to global stakeholders in August 2017. In March 2018, the Council held its first substantive discussions on the draft Mining Code. The English version of the revised text is now available online. Secretary-General Lodge discussed the Authority s development of additional regional environmental management plans in the Area. The strategy, which Secretary-General Lodge proposed, and which the Council endorsed in March, is for the development of regional environmental management plans ( REMPs ). The first REMP for the Area was adopted for the Clarion-Clipperton Zone in 2012. It is 1.6 million square kilometers. Two weeks ago in Qingdao, China, a scientific workshop co-hosted by the China Ocean Mineral Resource R&D Association was held to develop a REMP in the North-West Pacific. The Secretary-General said that he signed a contract for the exploration of cobalt-rich ferromanganese crusts with the Government of Korea on 27 March 2018. That puts the number of approved plans of work for exploration at 29. The Secretary-General told the meeting that the twenty-fourth session of the Authority will be held in Kingston from 2 to 27 July. After technical meetings, the Assembly will meet from 23 to 27 July. The Council and Assembly will consider and approve the budget for the biennium 2019-2020. The Council elected Mr. Olav Myklebust of Norway as its President in March. The Authority is facing challenges because it does not have s sufficient amount of money in the Voluntary Trust Fund for the participation of members of the Finance Committee and the Legal and Technical Commission from developing countries. Lastly, the Secretary-General commented on the excellent working relationship the Authority has with the UN Division for Ocean Affairs and the Law of the Sea, ITLOS, and the CLCS. He also expressed his appreciation for the host of the ISA, the Government of Jamaica. VI. Matters concerning the CLCS A. Report of the Chair of the Commission The Chairperson of the CLCS, Mr. Yong Ahn Park, delivered his statement calling the attention of the Parties to the letter he had addressed on 2 April 2018 to the President of the Meeting (SPLOS/319) containing a detailed report on the progress of the work of the Commission in the past year, as well as on the issue of the conditions of service of the members of the Commission. Chairperson Park explained that there are currently 12 submissions under active consideration by the Commission and its subcommissions. These are submissions by: the Russian Federation, in respect of the Arctic Ocean; Brazil, in respect of the Brazilian Southern Region; Norway, in respect of Bouvetøya and Dronning Maud Land; France and South Africa, jointly, in respect of the area of the Crozet Archipelago and the Prince Edward Islands; Kenya; Nigeria; Seychelles, in respect of the Northern Plateau Region; France, in respect of Reunion and the Saint-Paul and Amsterdam - 5 -
islands; Côte d'ivoire; Sri Lanka; Portugal; and Tonga, in respect of the eastern part of the Kermadec Ridge. The Chairperson explained that the significant workload of the Commission is a continuing challenge. The Commission is mindful of the backlog of submissions and is trying to proceed as quickly as possible. The Commission will continue for the next five years to meet for 21 weeks per year in three sessions of seven weeks, four of which would be devoted to plenary meetings. The Commission would like the vacancy on it to be filled. The Chairperson also talked about the conditions of service of the members of the CLCS, although that subject was also further discussed by the Meeting as a separate point in the agenda. B. Filling of a vacancy in the Commission The last election for all 21 members of the Commission, which takes place every five years, happened in 2017 during the 27th SPLOS Meeting. But since there was no nomination to fill one of the seats allocated to members from the group of Eastern European States, only 20 members were elected and the remaining seat was still empty at the opening of the 28th Meeting. The filling of the vacancy was included in this Meeting agenda, but the group did not choose a candidate. The President of the Meeting gave the group until September to select its candidate, while stressing the importance of filling the vacancy for the efficient performance of the Commission. The Chair of the Commission also emphasized in his letter that the absence of a member not only increases the workload for the remaining members, but also increases the risk of the lack of a quorum. C. Conditions of service of the CLCS members The conditions of service of the members of the CLCS was discussed as a separate point in the agenda, including the lack of adequate office space and technology while in New York; the loss of income, benefits, or career opportunities because of attendance at the sessions; and the issue of medical insurance of the members while fulfilling their duties. An Open-Ended Working Group on the Conditions of Service of the Members of the Commission continued to discuss the problem of the lack of medical insurance for the members of the Commission while they are fulfilling their duties at the headquarters. Some delegations highlighted the fact that this is a problem affecting the ability of the Commission to function properly, when for medical reasons its members cannot travel to attend the sessions. They explained that given the advanced average age of the Commission members, some of them require continuity in medical treatments and attention for preexisting conditions; and travel health insurance is not suitable for them because it only covers emergencies while abroad. Members of the Commission have been unable to attend meetings precisely because they need to continue treatments that they will not be able to receive while traveling in the absence of permanent medical insurance coverage. - 6 -
The Working Group will continue to study the problem and will try to come up with a specific proposal for the 29th SPLOS Meeting, next year. VII. Reports under article 319 of UNCLOS One of the last points on the Agenda was the discussions on the Reports of the Secretary-General under article 319 of UNCLOS. Under this article, the UN Secretary-General, among other functions, reports to the States Parties, as well as to the ISA and other competent international organizations, on issues of a general nature that have arisen with respect to the Convention. Two Reports of the Secretary-General (A/72/70/Add.1 and A/73/68), which had been prepared for the General Assembly with the purpose of assisting it in its annual consideration and review of issues relating to ocean affairs and the law of the sea, were submitted also to the SPLOS Meeting pursuant to article 319 of UNCLOS. The Meeting considered the reports and the States Parties reacted to them. The first one (A/72/70/Add.1) was a comprehensive report of the Secretary General on recent developments and issues relating to oceans affairs and the law of the sea, covering the period from September 2016 to August 2017. It covered a wide range of issues, including: the role of UNCLOS as the general legal and policy framework for oceans governance and the importance of its effective implementation; maritime safety and security issues at sea, including smuggling and trafficking of people, piracy, and other crimes; protection of the marine environment; marine scientific research; issues of illegal, unreported, and unregulated fishing; capacity building; the necessity for international cross-sectoral cooperation and coordination; and the conservation and sustainable use of the oceans and their resources, among other issues. Also, among an unprecedented number of ocean-related meetings held at the UN headquarters in the past year, the report highlighted the outcome of two major events: the Ocean Conference, held in New York from 5 to 9 June 2017 and the PrepCom on BBNJ, which ended in July 2017 with the adoption of a report to the General Assembly recommending the convening of an intergovernmental conference to develop an international instrument for the protection and sustainable use of marine biodiversity of areas beyond national jurisdiction. This Conference will convene its first session from 4 to 17 September 2018. During their reactions to the Report, the States Parties broadly welcomed the upcoming Conference. The second report (A/73/68) focused on the theme of anthropogenic underwater noise. The report was prepared to facilitate the discussions during the nineteenth meeting of the same Consultative Process (scheduled to be held from 18 to 22 June, right after the SPLOS Meeting). Under article 319 of UNCLOS, the States also provided their own reports on the progress of their own countries in aspects related to the Law of the Sea and in particular in the advancement of Sustainable Development Goal 14. - 7 -
VIII. Matters concerning different trust funds The Director of the Division for Ocean Affairs and the Law of the Sea, Ms. Gabriele Goettsche- Wanli, informed the Meeting about the current status of seven voluntary trust funds administered by the Division. These trust funds provide financial assistance for less developed countries in activities related to ocean governance under UNCLOS, like the preparation of submissions to the CLCS, the participation of States in dispute settlement before ITLOS, the defraying of the costs of participation of the members of the CLCS in the meetings of the Commission, and the participation in meetings held at UN Headquarters. According to the Director s statement, some of this trust funds face an immediate problem of shortage of funds. For instance, in regard to the Voluntary Trust Fund for the purpose of defraying costs of participation of the members of the Commission on the Limits of the Continental Shelf from developing States in the meetings of the Commission, she noted that, although nine States have contributed until now, if additional contributions are not received, the Division will not be able to provide financial assistance to members of the Commission from developing States to participate in the work of the Commission in 2019, which may soon undermine the Commission s ability to function. In the case of the trust fund for the purposes of assisting developing countries in attending the meetings of the intergovernmental conference on BBNJ, given the strong demand for assistance and the limited funds it has, the Division will not be able to provide assistance to all applicants for the first session of the IGC to be held in September. She made an appeal for financial contributions to all the Trust Funds and highlighted the fact that the shortage of funds contributes to the lack of participation of delegates from developing States in various UN meetings and processes related to the oceans. IX. Side Events There were a total of six Side Events. This Section reports on three of them. A. Reflection on the Contribution of the ITLOS to Dispute Settlement and the Law of the Sea This Side Event was organized by the Permanent Mission of Germany to the United Nations. Ambassador Christoph Heusgen offered introductory comments on Germany s commitment to a rules-based international order. It is this order, according to the Ambassador, that enables the peaceful and sustainable uses of the seas and oceans. The Ambassador also noted the increasing relevant work of ITLOS, especially in light of recent developments in the Arctic Ocean, the South China Sea, and Southeast Asia. He also highlighted recent cases brought under UNCLOS, such as the 2012 Bay of Bengal case, the 2016 South China Sea case, and the 2018 Australia/Timor-Leste conciliation. - 8 -
President Jin-Hyun Paik s remarks on ITLOS were twofold. First, he commented on the Tribunal s dispute settlement functions. In addition to reflecting upon the structure of article 287 of the Convention, the President presented potential areas of growth for the work of the Tribunal. For instance, he noted how the ITLOS Statute does not limit the Tribunal s jurisdiction to UNCLOS States Parties, but, arguably, enables enterprises and other natural and/or judicial persons to bring cases. Second, the President elaborated on ITLOS s contribution to international environmental law. Specifically, this included the Tribunal s role in clarifying the meaning of provisions on the environment in the Convention. He referred to the Tribunal s jurisprudence discussing the contours of customary international law on issues related, for example, to the precautionary approach and environmental assessment. B. Science as a Foundation for Successful Realization of Common Objectives in Global Marine Policy This Side Event was organized by the Permanent Mission of Norway to the United Nations. The objective was to support the application of the International Council for the Exploration of the Sea (ICES) to the United Nations. ICES is an intergovernmental marine science organization headquartered in Copenhagen, Denmark. It coordinates and promotes research on oceanography, the marine environment, ecosystems, and living marine resources in the North Atlantic Ocean and adjacent sea areas. Most importantly, ICES is a global scientific organization. It focuses in particular on advancing the scientific understanding of marine ecosystems and their relation to human activities. The speakers at the Side Event made clear that much of current sea policy is not adequately based on science, so ICES would contribute to ensuring that future sea policy decisions on the international law have the necessary scientific research supporting them. C. Shedding Light on the Deep Sea: Relevance of Recent Discoveries for Deep Ocean Management This Side Event was organized by the International Union for Conservation of Nature (IUCN). It revolved around conservationist concerns with respect to the deep seabed, particularly in light of recent developments in favor of deep seabed mining. The IUCN took the opportunity to make available to the attendees their most recent report on the deep seabed. The speakers, who were all experts on the deep seabed, explained the immense importance of the biodiversity of the deep seabed, and its potential to deliver benefits to humankind and the world. They also noted how new species are very often discovered in the deep seabed area, given the unique marine environments that exist there. In light of this, they recommended a conservationist approach to exploiting the minerals therein. - 9 -
The speakers, however, stopped short from saying that exploration and exploitation should not occur. They were simply providing information information that critically weighs in favor of preservation to allow States to make informed decisions concerning deep sea exploitation. - 10 -