The International Seabed Authority and the Enterprise: How Africa is reinvigorating the principle of the common heritage of mankind

• Jurisdiction: South Africa
• Citation: 2021 JOGA 1
• DOI: https://doi.org/10.47348/JOGA/2021/a1
• Author: Remaoun, M.
• Pages: 1-37
• Published date: 08 April 2021
• Date: 08 April 2021

https://doi.org/10.47348/JOGA/2021/a1

1

THE INTERNATIONAL SEABED AUTHORITY

AND THE ENTERPRISE: HOW AFRICA IS

REINVIGORATING THE PRINCIPLE OF THE

COMMON HERITAGE OF MANKIND

MEHDI REMAOUN†

Diplomat, Algerian Ministry of Foreign Affairs

This article focuses primarily on a submission made by the African

Group of States to the International Seabed Authority (ISA) on the

operationalisation of the Enterprise. The latter is one of the organs

established under Part XI of the 1982 United Nations Convention on

the Law of the Sea (LOSC) and guided by the principle of the common

heritage of mankind (CHM). Following several years of the status quo

remaining unchanged, the start of the development of the exploitation

regulations for deep seabed mining has led to louder calls to

operationalise the Enterprise. This article first outlines the origins

and legal foundations of the concept ‘Enterprise’. This is followed by

discussions on the status of this organ prior to the African Group’s

submission, the main elements contained in the submission as well as

the reactions to, and the impact of, the submission. Beyond the issue

of the Enterprise, this article also considers other attempts of the

African Group to give full effect to the CHM principle in the ISA as

well as the Group’s attempts to enshrine the CHM principle in a

potential third LOSC implementing agreement on marine biodiversity

beyond national jurisdiction. It concludes with critical observations

that put the various aspects discussed into perspective.

[Keywords] Law of the sea, common heritage of mankind,

International Seabed Authority, Enterprise, African Group,

mining, sustainable development

I INTRODUCTION

The International Seabed Authority (ISA) is an intergovernmental

organisation established by the 1982 United Nations Convention

† BA MPS. The author is grateful to the reviewers and editors for their

comments. All views expressed in this article are those of the author.

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2021 JOGA 1

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2 JOURNAL OF OCEAN GOVERNANCE IN AFRICA

https://doi.org/10.47348/JOGA/2021/a1

on the Law of the Sea (LOSC)1 and tasked with the organisation,

regulation and control of activities in the international seabed

area beyond the limits of national jurisdiction (‘the Area’).

Based in Kingston (Jamaica), it is one of the only two global

intergovernmental bodies the headquarters of which are located

in the developing world, 2 as far as can be ascertained.3

The ISA reached an important milestone in 2017 when it

started the process of developing exploitation regulations for

deep-seabed minerals. The finalisation and adoption of these

regulations will provide the green light for the exploitation of

minerals in the Area. The Legal and Technical Commission

(LTC), an organ of the ISA Council, examined and deliberated

on the draft Exploitation Regulations between 2017 and 2019,

under the guidance of the Council. The process has now shifted

to the Council, the 37-member executive body of the ISA.4

The draft Exploitation Regulations were made public at

the 23rd session of the ISA in August 20175 and, in terms

of the timeline proposed by the LTC, these regulations were

to be adopted by the Council in July 2020.6 In other words,

July 2020 was the deadline initially set to finalise and adopt

the Exploitation Regulations. Yet, when endorsing the timeline

of the LTC, some delegations regarded it as ‘ambitious’.7 Time

has proven them right, despite the fact that five additional

1 1833 UNTS 3, (1982) 21 ILM 1261; adopted: 10 December 1982; EIF: 16

November 1994.

2 The other one is the United Nations Office in Nairobi (UN Environment

Programme and UN Human Settlements Programme).

3 The ISA is an independent and autonomous body whose relationship

with the UN is governed by the 1997 Agreement Concerning the

Relationship between the United Nations and the International

Seabed Authority (annexed to the UN General Assembly Resolution

A/RES/52/27 of 26 November 1997).

4 This shift started at the beginning of 2020. See ISA ‘Decision of the

Council concerning working methods to advance discussions on

the draft regulations for exploitation of mineral resources in the

Area’ (ISBA Doc. ISBA/26/C/11 of 21 February 2020), available at

https://www.isa.org.jm (accessed on 28 October 2020).

5 See the 107-page document of 94 draft regulations and a set of annexures

issued on 7 August 2017 (ISBA Doc ISBA/23/LTC/CRP.3*).

6 See the annex to the Report of the Chair of the Legal and Technical

Commission on the work of the Commission at its session in 2017

(ISBA Doc. ISBA/23/C/13 of 9 August 2017).

7 See (2017) 25(146) Earth Negotiations Bulletin 2 (available at https://enb.

iisd.org/download/pdf/enb25146e.pdf, accessed on 20 January 2021).

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The International Seabed Authority and the Enterprise: How Africa is

reinvigorating the principle of the common heritage of mankind 3

https://doi.org/10.47348/JOGA/2021/a1

days were added to each of the annual five-day meetings of the

Council from 2018. It seems that the Exploitation Regulations

will probably not be finalised before 2023 or 2024, given

the slow pace of progress, worsened by the impact of the

COVID-19 pandemic.

The LOSC provides that the Enterprise is one of the ISA

organs.8 Once operationalised, this organ is expected to play a

crucial role in facilitating the participation of developing States

in activities in the Area, including the mining of minerals.

Despite its importance for this category of States, the Enterprise

was neither represented nor included in the development

process of the exploitation regulations until a submission made

by the African Group9 to the ISA changed the status quo.

The African Group is perceived by stakeholders involved

in the negotiations as a key actor in the process of developing

exploitation regulations, not only because this Group represents

the largest negotiating block, composed of the 47 African

member States of the ISA, but also because it has been very

active and made many important submissions throughout the

process. The written submissions include, inter alia, comments

and proposals on the different versions of the draft Exploitation

Regulations as well as more specific submissions like the ones

on the payment regime, the legal liability regime for activities

in the Area, the training programmes for developing States and

the operationalisation of the Enterprise.10

This article focuses mainly on the African Group’s

submission on the operationalisation of the Enterprise. Part

of the analysis is based on the author’s personal experience

as a practitioner in the field and his active participation in

ISA meetings. The article first addresses the origins and legal

foundations of the concept of ‘Enterprise’ and, thereafter, it

discusses the status of the Enterprise before the African Group’s

submission. It continues by touching upon the main elements

of the submission, after which it discusses the reactions and

8 See art 158(2) and 170(1) LOSC.

9 The African Group at the Assembly is composed of the 47 African

member States of the ISA, while at the Council, the Group is represented

by ten elected African member States.

10 These comments cover a very wide spectrum of issues that comprise,

for instance, the guiding principles, the rights and obligations of the

contractors, the protection and preservation of the marine environment,

transboundary harm, compliance and inspections.

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