Having been working on the topic of Deep Seabed Mining (“DSM”) for three years, I decided to go out and see how the subject matter of my PhD research works in practice. Last month (July 2015), I did an internship at the International Seabed Authority (“the Authority”).* Closely observing the operations of all organs of the Authority and of the participation of representatives (of governments, non-governmental organizations and mining industries) furthered my understanding of the Authority, particularly its institutional structure and functioning. The aim of this post is to give preliminary comments on that point, on the basis of my personal experience.
It was not until the 1st of July when I reported my arrival to the Secretariat of the Authority located in Kingston, Jamaica, that I had the tangible, personified image of the Authority in my mind. With 37 staff members (20 professional and 17 general service), the Authority is a rather small international organization. However, the influence of the Secretariat is not necessarily proportionate to its size, but is decided mainly by the powers and functions of the organization. As the sole competent body to “organize and control activities in the Area, particularly with a view to administering the resources of the Area”, the Authority has become the meeting point for people all around the world who are interested in DSM. As the only permanent organ within the Authority, naturally, the Secretariat serves foremost as a hub of information relating to all aspects of DSM, including scientific information about the marine environment, technological information on the exploration for and exploitation of marine mineral resources, lists of experts, etc.
Subsidiary bodies – the Legal and Technical Commission and Finance Committee
The Legal and Technical Commission (“the LTC”) is a subsidiary body affiliated to the Council which deals with the substantive work with DSM. At the moment, the LTC fulfils its functions through closed meetings twice a year. Each meeting lasts for about ten days. While sitting in the July meetings this year, the first impression I got was that they spend a lot of time discussing how they should work (the methodology) rather than the work itself. I also noticed that not all members were (well) prepared for their job. Moreover, the attendance was also a problem (20 out of the 25 members attended this meeting, which, I was told, was actually quite a good percentage). Considering that members of the LTC only do voluntary, part-time work for the Authority, it did not surprise me that not all members of the LTC wanted to invest their time and energy in the LTC. Having said that, it does not necessarily mean that the LTC is doomed to be dysfunctional. There are ways to counteract the downsides. First, the LTC is helped by the Secretariat and sometimes by external consultants hired by the Secretariat. To a large extent, the output of the LTC depends on the service provided by the Secretariat. For example, when it comes to the review of the annual reports submitted by the contractors, instead of reading all these reports directly, the LTC worked only on the document prepared by the Secretariat which contains the key information extracted from the reports and the comments given by the officers. Secondly, the final report of the Chairman of the LTC to the Council serves as an external pressure which also helps in the functioning of the LTC.
The Finance Committee (the “FC”) functioned in a similar way to the LTC. It also faced similar problems, such as the attendance (11 out of the 15 members attended this year) and involvement of the members. However, since the FC deals with financial issues rather than the substantive work with DSM, it had a much simpler agenda, and the discussions within the FC went much more smoothly and efficiently compared to the LTC. Three observations with respect to the operation of the FC are worth mentioning here. First of all, most of the time, the discussions within the FC concerned legal rather than financial issues . Very frequently, one would hear a question being put forward such as “why should a certain item be included?”, “why is a certain standard employed?”, and “what is the legal basis for doing so?” etc. Secondly, although members of the FC are selected by the Assembly and the FC is a subsidiary body only to the Assembly, the report of the Finance Committee was submitted to both the Assembly and the Council (the symbol numbers of ISBA/21/A/6 and ISBA/21/C/15 refer to the same document). This rather unusual phenomenon could be explained by the (revised) decision-making rules under the 1994 Agreement where the decisions by the Assembly on budgetary or financial matters have to be made on the basis of recommendations by the Council. Thirdly, it is to be noted that coordination does exist between the two subsidiary bodies. For instance, when I watched the Chairman of the LTC walking into the conference room of the FC to present a list of “priority deliverables for the development of the exploitation code over the next 12-18 months”, the FC discussed how to fit that list of “priority deliverables” into the current and next biennial budget. To me this was a vivid example of what the abstract notion of coordination means in real life.
Policy-making organs – the Council and the Assembly
Of the two policy-making organs the Council, undoubtedly, plays the more important role. A chronic problem for the Assembly is the low attendance rate of its members (this year 62 out of 168 members attended), which could, strictly speaking, cause problems concerning the legitimacy of its decisions. In contrast, all the members of the Council attended and most of them participated actively in the meetings. With respect to the constitution of the Council, there was an interesting minutia which demonstrated how practice can deviate from what is written in script. According to one provision, there are 36 members in the Council - 4 in Group A, 4 in Group B, 4 in Group C, 6 in Group D and 18 in Group E. In practice, however, 19 members are elected in Group E, which brings the total number of members to 37. A practical solution to this discrepancy is that each year one member in Group E waives his right to vote, and this is done on a rotating basis among the regional groups.
The most interesting thing in the Council this year for me was the decision-making process. Years ago when I read a sentence like “a marked tendency towards decision-making by consensus has been discernable in a large number of international organizations since the 1960s” in the book by Professor Schermers and Professor Blokker, I did not really appreciate the extent to which consensus is preferred as a way of making a decision and how much effort a policy-making organ can have put into reaching a consensus. This time, there were huge disagreements between regional groups with respect to the “consideration, with a view to approval, of procedures and criteria for the extension of an approved plan of work for exploration”. One delegate expressed his strong opposition to using voting as a way of decision-making. He employed the words “taboo” and “shock” when referring to the voting practice within the LTC (the LTC resorted to voting for the first time at the February meeting, 2015). During the session, the President of the Council tried really hard to arrive at a consensus. Discussions on the item were suspended from time to time; closed meetings were held several times; finally, the time came and the President asked: “may I take the proposal as the decision of the Council?” There was silence. Then, the decision was adopted. I can vividly recall the metaphor used by Professor Blokker in his class when he touched on the issue of consensus. He said that for those who appreciate classical music, appreciating the rest – the interval of silence - is a very important part. Sometimes, silence speaks louder than sound. Indeed, making a decision by consensus requires diplomatic skills, the spirit of compromise, patience and above all, that last critical moment of silence.
As the DSM is approaching the next stage – the exploitation phase - it is interesting to observe how this development will influence the constitution, operation of the organs and the budget (the current biennial budget is about 14 million USD) of the Authority. It remains to be seen whether the Authority can serve as a guardian of the interests of the Common Heritage of Mankind.
* This study trip was jointly funded by the Leiden University Fund and the Public International Law Department, Leiden University. Deep thanks go to Prof. Nico Schrijver for his strong support, to Hilde Roskam for her generous help and to the staff members of the International Seabed Authority for their kindness during my stay.