III. The convention's new institutions: the international seabed authority and the enterprise

Nowhere does the Convention more clearly anticipate the concept of "sustainable development" than in the new international institutions established by it to implement the concept of the "common heritage of mankind": the International Seabed Authority, which will regulate, supervise and administer mining of the seabed beyond the limits of national jurisdiction; and its affiliate, the Enterprise, which will actually carry on mining of that area in competition with States and state-sponsored miners. Nowhere in the Convention are the Brundtland Report's prescriptions regarding "changes in access to resources and in the distribution of costs and benefits," and concern for social equity "between generations" and "within each generation" more strikingly foreshadowed than in part XI and annex III. Those provisions regulate access to the area's resources as well as all resource exploration and exploitation activities therein, promote the transfer of scientific knowledge and technology associated with seabed mining, and ensure to a feasible extent the equitable distribution of the costs and benefits of activity in the area. The Enterprise, established by article 170 and annex IV as an "organ of the Authority," and given a measure of autonomy to enable it to function on a commercial basis with a view to optimal utilization of the area's resources, is nevertheless "subject to the directives and control of the Council," so that its operations as a whole will be consistent with the common heritage concept as elaborated in the Convention.

The Convention's provisions illustrate three features of particular importance in the design of international institutions responsible for the sustainable development of a natural resource: universal participation, comprehensive powers, and legislative competence.

Universal participation

Part XI of the Convention, together with annex III are of particular importance from the institutional point of view, since they may represent the furthest attainable refinement of an inter-State management mechanism that remains faithful to the principle of the sovereign equality of States and is based firmly on the democratic ideal of one-State-one-vote, which the overwhelming majority of participants considered essential.

Thus, in the Assembly - the International Seabed Authority's "supreme organ"³⁹ - all States' Parties are represented, and the vote of each is equal in value to the vote of any other. A simple majority of all the members constitutes a quorum, and a majority of members present and voting is needed in order to decide a question of procedure. For a decision concerning a question of substance (and the decision whether a question is one of substance or not), a qualified majority is required, that is two-thirds of the members present and voting, provided that number includes two-thirds of the members participating in the session. Minority positions are safeguarded through provisions for postponement of voting on a question, pending negotiation; and postponement of voting on a proposal pending its referral to the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea for an advisory opinion on conformity of the proposal with the provisions of the Convention.⁴⁰

The Council, the executive and supervisory organ of the Authority, also functions in accordance with the one-State-one-vote principle. A simple majority of its members constitutes a quorum, and a decision on a question of procedure requires a simple majority. As some of the Council's decisions on questions of substance are likely to be of economic and political significance to States' Parties, and may generate strongly held views among them, a delicate balance in decision-making power was achieved through combining:

1. Constitutional provisions which, while maintaining overall geographical distribution of seats on the Council, ensures that half its number (18) would be filled on the basis of equitable representation of States with special interests. These include the principal consumers of seabed minerals and the principal investors in seabed mining (thus guaranteeing representation of the most highly industrialized countries) as well as the principal land-based producers of the same minerals.⁴¹

2. A procedure for voting on matters of substance that safeguards the integrity of the regime by protecting strongly-held minority positions through (a) requiring, with respect to specified categories of questions of substance, that decisions be taken by qualified majorities of two-thirds, or three-fourths of the members present and voting, or by a consensus among them, reflecting, in general, the economic or political significance attaching to each category of questions, together with residual application of the consensus rule to any question or category of questions not so specified; and (b) provisions for postponement of voting on a question pending the operation of a conciliation procedure aimed at achieving consensus.⁴²

With the emergence of this balanced system for the exercise of executive and supervisory authority out of a rigorous negotiation which took into account the concerns of States with widely different economic and political interests, the Conference avoided having to adopt devices such as guaranteeing one or more seats for States by name. This was to assure appropriate representation of States with the highest level of economic interest and contributory capacity; grant of the power of veto to any State or group of States; or, again, making a State's voting strength proportionate to its budgetary contribution (weighted voting).

Comprehensive powers

Article 137 of the convention declares that "All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act ..." laying the foundation for the Authority's comprehensive powers. Thus, article 153 empowers the Authority to organize and control seabed mining in the Area, and also to carry out seabed mining by the Enterprise, or through contracts with States, or with State enterprises or natural or juridical persons sponsored by States. Article 150 gives the Authority important roles, on the one hand, in increasing the availability of minerals from the Area, and expanding the opportunities for participation by all States in the development of the Area's mineral resources; and, on the other hand, in regulating the production of seabed minerals so as to protect land-based mineral producers from "adverse effects on their economies or on their export earnings resulting from a reduction in the price of an affected mineral, or in the volume of exports of that mineral ..." caused by seabed mining in the area. Article 140 requires the Authority to provide for the equitable sharing of financial and economic benefits derived from activities in the area on a non-discriminatory basis.

Other provisions of the Convention empower the Authority to carry out, as well as to promote and encourage the conduct of, marine scientific research concerning the Area and its resources, as well as to coordinate such research and disseminate its results;⁴³ to regulate activities in the Area so as to prevent, reduce and control pollution and other hazards to the marine environment, and to protect and conserve the Area's mineral resources, its flora and fauna;⁴⁴ to regulate activities in the Area for the protection of human life, where necessary, supplementing the existing treaty law on the subject;⁴⁵ to regulate the emplacement, safe utilization, and eventual removal of installations in the Area, so as to ensure the safety of navigation;⁴⁶ to take measures to acquire technology and scientific knowledge relating to seabed mining and to promote, encourage, and facilitate its transfer to the developing countries;⁴⁷ and to promote, through measures including transfers of financial and other benefits from deep seabed mining, and the results of scientific research and the relevant technology, the "effective participation of developing countries in activities in the Area...."⁴⁸

Legislative competence

The Council, which is required to meet at least three times a year, has policymaking power as well as legislative and supervisory competence in all questions and matters within the competence of the Authority. Although it is the Assembly that must actually adopt the rules, regulations, and procedures applicable over the range of the Authority's functions, it may do so only on the recommendation of the Council,⁴⁹ and it does not appear likely that the Assembly would, as a rule, assert its "supremacy" over the Council.⁵⁰ When adopted by the Council by consensus,⁵¹ and by the Assembly by a two-thirds majority,⁵² the provisions of the Authority's mining code will become applicable without the need for additional separate consent by States' Parties. Similarly, action taken in emergencies,⁵³ in cases of noncompliance,⁵⁴ or in the exercise of the power to disapprove areas for exploitation on environmental grounds,⁵⁵ bind States' Parties and seabed miners directly, although it may be open to an aggrieved party in an appropriate case to have recourse to dispute settlement procedures.⁵⁶ Amendments "relating exclusively to activities in the Area" approved by the Council (by consensus) and by the Assembly (by a two-thirds majority) would be considered adopted and submitted to all parties for ratification.⁵⁷ On the other hand, article 155 of the Convention on decisions on amendments at the Review Conference provide a controversial mechanism that would permit the Review Conference to circumvent the legislative competence of the Authority's organs, with their safeguards for minority positions: if efforts at consensus were to fail, amendments would enter into force for all parties following adoption by a three-fourths majority of States' Parties, and ratification or accession by a similar majority.