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UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982
Article 14
Transfer of data
1. The operator shall transfer to the Authority, in accordance with
its rules, regulations and procedures and the terms and conditions of the
plan of work, at time intervals determined by the Authority all data which
are both necessary for and relevant to the effective exercise of the
powers and functions of the principal organs of the Authority in respect
of the area covered by the plan of work.
2. Transferred data in respect of the area covered by the plan of
work, deemed proprietary, may only be used for the purposes set forth in
this Article. Date necessary for the formulation by the Authority of
rules, regulations and procedures concerning protection of the marine
environment and safety, other than equipment design data, shall not be
deemed proprietary.
3. Data transferred to the Authority by prospectors, applicants for
contracts or contractors, deemed proprietary, shall not be disclosed by
the Authority to the Enterprise or to anyone external to the Authority,
but data on the reserved areas may be disclosed to the Enterprise. Such
data transferred by such persons to the Enterprise shall not be disclosed
by the Enterprise to the Authority or to anyone external to the Authority.
Article 15
Training programmes
The contractor shall draw up practical programmes for the training of
personnel of the Authority and developing States, including the
participation of such personnel in all activities in the Area which are
covered by the contract, in accordance with Article 144, paragraph 2.
Article 16
Exclusive right to explore and exploit
The Authority shall, pursuant to Part XI and its rules, regulations
and procedures, accord the operator the exclusive right to explore and
exploit the area covered by the plan of work in respect of a specified
category of resources and shall ensure that no other entity operates in
the same area for a different category of resources in a manner which
might interfere with the operations of the operator. The operator shall
have security of tenure in accordance with Article 153, paragraph 6.
Article 17
Rules, regulations and procedures of the Authority
1. The Authority shall adopt and uniformly apply rules, regulations
and procedures in accordance with Article 160, paragraph 2 (f) (ii), and
Article 162, paragraph 2 (o) (ii), for the exercise of its functions as
set forth in Part XI on, inter alia, the following matters:
(a) administrative procedures relating to prospecting, exploration
and exploitation in the Area;
(b) operations:
(i) size of area;
(ii) duration of operations;
(iii) performance requirements including assurances pursuant
to Article 4, paragraph 6 (c), of this Annex;
(iv) categories of resources;
(v) renunciation of areas;
(vi) progress reports;
(vii) submission of data;
(viii) inspection and supervision of operations;
(ix) prevention of interference with other activities in the
marine environment;
(x) transfer of rights and obligations by a contractor;
(xi) procedures for transfer of technology to developing
States in accordance with Article 144 and for their direct participation;
(xii) mining standards and practices, including those relating
to operational safety, conservation of the resources and the protection
of the marine environment;
(xiii) definition of commercial production;
(xiv) qualification standards for applicants;
(c) financial matters:
(i) establishment of uniform and non-discriminatory costing
and accounting rules and the method of selection of auditors;
(ii) apportionment of proceeds and operations;
(iii) the incentives referred to in Article 13 of this Annex;
(d) implementation of decisions taken pursuant to Article 151,
paragraph 10, and Article 164, paragraph 2(d).
2. Rules, regulations and procedures on the following items shall
fully reflect the objective criteria set out below:
(a) Size of areas:
The Authority shall determine the appropriate size of areas
for exploration which may be up to twice as large as those for
exploitation in order to permit intensive exploration operations. The size
of area shall be calculated to satisfy the requirements of Article 8 of
this Annex on reservation of areas as well as stated production
requirements consistent with Article 151 in accordance with the terms of
the contract taking into account the state of the art of technology then
available for sea-bed mining and the relevant physical characteristics of
the areas. Areas shall be neither smaller not larger than are necessary to
satisfy this objective.
(b) Duration of operations:
(i) Prospecting shall be without time-limit;
(ii) Exploration should be of sufficient duration to permit a
thorough survey of the specific area, the design and construction of
mining equipment for the area and the design and construction of small and
medium-size processing plants for the purpose of testing mining and
processing systems;
(iii) The duration of exploitation should be related to the
economic life of the mining project, taking into consideration such
factors as the depletion of the ore, the useful life of mining equipment
and processing facilities and commercial viability. Exploitation should be
of sufficient duration to permit commercial extraction of minerals of the
area and should include a reasonable time period for processing systems,
during which period commercial production should not be required. The
total duration of exploitation, however, should also be short enough to
give the Authority an opportunity to amend the terms and conditions of the
plan of work at the time it considers renewal in accordance with rules,
regulations and procedures which it has adopted subsequent to approving
the plan of work.
(c) Performance requirements:
The Authority shall require that during the exploration stage
periodic expenditures be made by the operator which are reasonably related
to the size of the area covered by the plan of work and the expenditures
which should be expected of a bona fide operator who intended to bring the
area into commercial production within the time imits established by the
Authority. The required expenditures should not be established at a level
which would discourage prospective operators with less costly technology
than is prevalently in use. The Authority shall establish a maximum time
interval, after the exploration stage is completed and the exploitation
stage begins, to achieve commercial production. To determine this
interval, the Authority should take into consideration that construction
of large-scale mining and processing systems cannot be initiated until
after the termination of the exploration stage and the commencement of the
exploitation stage. Accordingly, the interval to bring an area into
commercial production should take into account the time necessary for this
construction after the completion of the exploration stage and reasonable
allowance should be made for unavoidable delays in the construction
schedule. Once commercial production is achieved, the Authority shall
within reasonable limits and taking into consideration all relevant
factors require the operator to maintain commercial production throughout
the period of the plan of work.
(d) Categories of resources:
In determining the category of resources in respect of which a
plan of work may be approved, the Authority shall give emphasis inter alia
to the following characteristics:
(i) that certain resources require the use of similar mining
methods; and
(ii) that some resources can be developed simultaneously
without undue interference between operators developing different
resources in the same area.
Nothing in this subparagraph shall preclude the Authority from
approving a plan of work with respect to more than one category of
resources in the same area to the same applicant.
(e) Renunciation of areas:
The operator shall have the right at any time to renounce without
penalty the whole or part of his rights in the area covered by a plan of
work.
(f) Protection of the marine environment:
Rules, regulations and procedures shall be drawn up in order to
secure effective protection of the marine environment from harmful effects
directly resulting from activities in the Area or from shipboard
processing immediately above a mine site of minerals derived from that
mine site, taking into account the extent to which such harmful effects
may directly result from drilling, dredging, coring and excavation and
from disposal, dumping and discharge into the marine environment of
sediment, wastes or other affluence.
(g) Commercial production:
Commercial production shall be deemed to have begun if an operator
engages in sustained large-scale recovery operations which yield a
quantity of materials sufficient to indicate clearly that the principal
purpose is large-scale production rather than production intended for
information gathering, analysis or the testing of equipment or plant.
Article 18
Penalties
1. A contractor's rights under the contract may be suspended or
terminated only in the following cases:
(a) if, in spite of warnings by the Authority, the contractor has
conducted his activities in such a way as to result in serious, persistent
and wilful violations of the fundamental terms of the contract. Part XI
and the rules, regulations and procedures of the Authority; or
(b) if the contractor has failed to comply with a final binding
decision of the dispute settlement body applicable to him.
2. In the case of any violation of the contract not covered by
paragraph 1 (a), or in lieu of suspension or termination under paragraph
1(a), the Authority may impose upon the contractor monetary penalties
proportionate to the seriousness of the violation.
3. Except for emergency orders under Article 162, paragraph 2 (w), the
Authority may not execute a decision involving monetary penalties,
suspension or termination until the contractor has been accorded a
reasonable opportunity to exhaust the judicial remedies available to him
pursuant to Part XI, section 5.
Article 19
Revision of contract
1. When circumstances have arisen or are likely to arise which, in the
opinion of either party, would render the contract inequitable or make it
impracticable or impossible to achieve the objectives set out in the
contract or in Part XI, the parties shall enter into negotiations to
revise it accordingly.
2. Any contract entered into in accordance with Article 153, paragraph
3, may be revised only with the consent of the parties.
Article 20
Transfer of rights and obligations
The rights and obligations arising under a contract may be transferred
only with the consent of the Authority, and in accordance with its rules,
regulations and procedures. The Authority shall not unreasonably withhold
consent to the transfer if the proposed transferee is in all respects a
qualified applicant and assumes all of the obligations of the transferor
and if the transfer does not confer to the transferee a plan of work, the
approval of which would be forbidden by Article 6 paragraph 3 (c), of this
Annex.
Article 21
Applicable law
1. The contract shall be governed by the terms of the contract, the
rules, regulations and procedures of the Authority, Part XI and other
rules of international law not incompatible with this Convention.
2. Any final decision rendered by a court or tribunal having
jurisdiction under this Convention relating to the rights and obligations
of the Authority and of the contractor shall be enforceable in the
territory of each State Party.
3. No State Party may impose conditions on a contractor that are
inconsistent with Part XI. However, the application by a State Party to
contractors sponsored by it, or to ships flying its flag, of environmental
or other laws and regulations more stringent than those in the rules,
regulations and procedures of the Authority adopted pursuant to Article
17, paragraph 2 (f), of this Annex shall not be deemed inconsistent with
Part XI.
Article 22
Responsibility
The contractor shall have responsibility or liability for any damage
arising out of wrongful acts in the conduct of its operations, account
being taken of contributory acts or omissions by the Authority, Similarly,
the Authority shall have responsibility or liability for any damage
arising out of wrongful acts in the exercise of its powers and functions,
including violations under Article 168, paragraph 2, account being taken
of contributory acts or omissions by the contractor. Liability in every
case shall be for the actual amount of damage.
ANNEX IV. STATUTE OF THE ENTERPRISE
Article 1
Purposes
1. The Enterprise is the organ of the Authority which shall carry out
activities in the Area directly, pursuant to Article 153, paragraph 2 (a),
as well as the transporting, processing and marketing of minerals
recovered from the Area.
2. In carrying out its purposes and in the exercise of its functions,
the Enterprise shall act in accordance with this Convention and the rules,
regulations and procedures of the Authority.
3. In developing the resources of the Area pursuant to paragraph 1,
the Enterprise shall, subject to this Convention, operate in accordance
with sound commercial principles.
Article 2
Relationship to the Authority
1. Pursuant to Article 170, the Enterprise shall act in accordance
with the general policies of the Assembly and the directives of the
Council.
2. Subject to paragraph 1, the Enterprise shall enjoy autonomy in the
conduct of its operations.
3. Nothing in this Convention shall make the Enterprise liable for the
acts or obligations of the Authority, or make the Authority liable for the
acts or obligations of the Enterprise.
Article 3
Limitation of liability
Without prejudice to Article 11, paragraph 3, of this Annex, no member
of the Authority shall be liable by reason only of its membership for the
acts or obligations of the Enterprise.
Article 4
Structure
The Enterprise shall have a Governing Board, a Director-General and
the staff necessary for the exercise of its functions.
Article 5
Governing Board
The Governing Board shall be composed of 15 members elected by the
Assembly in accordance with Article 160, paragraph 2(c). In the election
of the members of the Board, due regard shall be paid to the principle of
equitable geographical distribution. In submitting nominations of
candidates for election to the Board, members of the Authority shall bear
in mind the need to nominate candidates of the highest standard of
competence, with qualifications in relevant fields, so as to ensure the
viability and success of the Enterprise.
2. Members of the Board shall be elected for four years and may be
re-elected; and due regard shall be paid to the principle of rotation of
membership.
3. Members of the Board shall continue in office until their
successors are elected. If the office of a member of the Board becomes
vacant, the Assembly shall, in accordance with Article 160, paragraph 2
(c), elect a new member for the remainder of his predecessor's term.
4. Members of the Board shall act in their personal capacity. In the
performance of their duties they shall not seek or receive instructions
from any government or from any other source. Each member of the Authority
shall respect the independent character of the members of the Board and
shall refrain from all attempts to influence any of them in the discharge
of their duties.
5. Each member of the Board shall receive remuneration to be paid out
of the funds of the Enterprise. The amount of remuneration shall be fixed
by the Assembly, upon the recommendation of the Council.
6. The Board shall normally function at the principal office of the
Enterprise and shall meet as often as the business of the Enterprise may
require.
7. Two thirds of the members of the Board shall constitute a quorum.
8. Each member of the Board shall have one vote. All matters before
the Board shall be decided by a majority of its members. If a member has a
conflict of interest on a matter before the Board he shall refrain from
voting on that matter.
9. Any member of the Authority may ask the Board for information in
respect of its operations which particularly affect that member. The Board
shall endeavour to provide such information.
Article 6
Powers and functions of the Governing Board
The Governing Board shall direct the operations of the Enterprise.
Subject to this Convention, the Governing Board shall exercise the powers
necessary to fulfil the purposes of the Enterprise, including powers:
(a) to elect a Chairman from among its members;
(b) to adopt its rules of procedure;
(c) to draw up and submit formal written plans of work to the
Council in accordance with Article 153, paragraph 3, and Article 162,
paragraph 2(j);
(d) to develop plans of work and programmes for carrying out the
activities specified in Article 170;
(e) to prepare and submit to the Council applications for
production authorisations in accordance with Article 151, paragraphs 2 to
7;
(f) to authorise negotiations concerning the acquisition of
technology, including those provided for in Annex III, Article 5,
paragraph 3 (a), (c) and (d), and to approve the results of those
negotiations;
(g) to establish terms and conditions, and to authorise
negotiations, concerning joint ventures and other forms of joint
arrangements referred to in Annex III, Articles 9 and 11, and to approve
the results of such negotiations;
(h) to recommend to the Assembly what portion of the net income of
the Enterprise should be retained as its reserves in accordance with
Article 160, paragraph 2 (f), and Article 10 of this Annex;
(i) to approve the annual budget of the Enterprise;
(j) to authorise the procurement of goods and services in
accordance with Article 12, paragraph 3, of this Annex;
(k) to submit an annual report to the Council in accordance with
Article 9 of this Annex;
(l) to submit to the Council for the approval of the Assembly
draft rules in respect of the organisation, management, appointment and
dismissal of the staff of the Enterprise and to adopt regulations to give
effect to such rules;
(m) to borrow funds and to furnish such collateral or other
security as it may determine in accordance with Article 11, paragraph 2,
of this Annex;
(n) to enter into any legal proceedings, agreements and
transactions and to take any other actions in accordance with Article 13
of this Annex;
(o) to delegate, subject to the approval of the Council, any
non-discretionary powers to the Director-General and to its committees.
Article 7
Director-General and staff of the Enterprise
1. The Assembly shall, upon the recommendation of the Council and the
nomination of the Governing Board, elect the Director-General of the
Enterprise who shall not be a member of the Board. The Director-General
shall hold office for a fixed term, not exceeding five years, and may be
re-elected for further terms.
2. The Director-General shall be the legal representative and chief
executive of the Enterprise and shall be directly responsible to the Board
for the conduct of the operations of the Enterprise. He shall be
responsible for the organisation, management, appointment and dismissal of
the staff of the Enterprise in accordance with the rules and regulations
referred to in Article 6, subparagraph (1), of this Annex. He shall
participate, without the right to vote, in the meetings of the Board and
may participate, without the right to vote, in the meetings of the
Assembly and the Council when these organs are dealing with matters
concerning the Enterprise.
3. The paramount consideration in the recruitment and employment of
the staff and in the determination of their conditions of service shall be
the necessity of securing the highest standards of efficiency and of
technical competence. Subject to this consideration, due regard shall be
paid to the importance of recruiting the staff on an equitable
geographical basis.
4. In the performance of their duties the Director-General and the
staff shall not seek or receive instructions from any government or from
any other source external to the Enterprise. They shall refrain from any
action which might reflect on their position as international officials of
the Enterprise responsible only to the Enterprise. Each State Party
undertakes to respect the exclusively international character of the
responsibilities of the Director-General and the staff and not to seek to
influence them in the discharge of their responsibilities.
5. The responsibilities set forth in Article 168, paragraph 2, are
equally applicable to the staff of the Enterprise.
Article 8
Location
The Enterprise shall have its principal office at the seat of the
Authority. The Enterprise may establish other offices and facilities in
the territory of any State Party with the consent of that State Party.
Article 9
Reports and financial statements
1. The Enterprise shall, not later than three months after the end of
each financial year, submit to the Council for its consideration an
annual report containing an audited statement of its accounts and shall
transmit to the Council at appropriate intervals a summary statement of
its financial position and a profit and loss statement showing the results
of its operations.
2. The Enterprise shall publish its annual report and such other
reports as it finds appropriate.
3. All reports and financial statements referred to in this Article
shall be distributed to the members of the Authority.
Article 10
Allocation of net income
1. Subject to paragraph 3, the Enterprise shall make payments to the
Authority under Annex III, Article 13, or their equivalent.
2. The Assembly shall, upon the recommendation of the Governing Board,
determine what portion of the net income of the Enterprise shall be
retained as reserves of the Enterprise. The remainder shall be transferred
to the Authority.
3. During an initial period required for the Enterprise to become
self-supporting, which shall not exceed 10 years from the commencement of
commercial production by it, the Assembly shall exempt the Enterprise from
the payments referred to in paragraph 1, and shall leave all of the net
income of the Enterprise in its reserves.
Article 11
Finances
1. The funds of the Enterprise shall include:
(a) amounts received from the Authority in accordance with Article
173, paragraph 2 (b);
(b) voluntary contributions made by States Parties for the purpose
of financing activities of the Enterprise;
(c) amounts borrowed by the Enterprise in accordance with
paragraphs 2 and 3;
(d) income of the Enterprise from its operations;
(e) other funds made available to the Enterprise to enable it to
commence operations as soon as possible and to carry out its functions.
2. (a) The Enterprise shall have the power to borrow funds and to
furnish such collateral or other security as it may determine. Before
making a public sale of its obligations in the financial markets or
currency of a State Party, the Enterprise shall obtain the approval of
that State Party. The total amount of borrowings shall be approved by the
Council upon the recommendation of the Governing Board.
(b) State Parties shall make every reasonable effort to support
applications by the Enterprise for loans on capital markets and from
international financial institutions.
3. (a) The Enterprise shall be provided with the funds necessary to
explore and exploit one mine site, and to transport, process and market
the minerals recovered therefrom and the nickel, copper, cobalt and
manganese obtained, and to meet its initial administrative expenses. The
amount of the said funds, and the criteria and factors for its adjustment,
shall be included by the Preparatory Commission in the draft rules,
regulations and procedures of the Authority.
(b) All States Parties shall make available to the Enterprise an
amount equivalent to one half of the funds referred to in subparagraph (a)
by way of long-term interest-free loans in accordance with the scale of
assessments for the United Nations regular budget in force at the time
when the assessments are made, adjusted to take into account the States
which are not members of the United Nations. Debts incurred by the
Enterprise in raising the other half of the funds shall be guaranteed by
all States Parties in accordance with the same scale.
(c) If the sum of the financial contributions of States Parties is
less than the funds to be provided to the Enterprise under subparagraph
(a), the Assembly shall, at its first session, consider the extent of the
shortfall and adopt by consensus measures for dealing with this shortfall,
taking into account the obligation of States Parties under subparagraphs
(a) and (b) and any recommendations of the Preparatory Commission.
(d) (i) Each State Party shall, within 60 days after the entry
into force of this Convention, or within 30 days after the deposit of its
instrument of ratification or accession, whichever is later, deposit with
the Enterprise irrevocable, non-negotiable, non-interest bearing
promissory notes in the amount of the share of such State Party of
interest-free loans pursuant to subparagraph (b).
(ii) The Board shall prepare, at the earliest practicable date
after this Convention enters into force, and thereafter at annual or other
appropriate intervals, a schedule of the magnitude and timing of its
requirements for the funding of its administrative expenses and for
activities carried out by the Enterprise in accordance with Article 170
and Article 12 of this Annex.
(iii) The States Parties shall, thereupon, be notified by the
Enterprise, through the Authority, of their respective shares of the funds
in accordance with paragraph 3 (b), required for such expenses. The
Enterprise shall encash such amounts of the promissory notes as may be
required to meet the expenditure referred to in the schedule with respect
to interest-free loans.
(iv) States Parties shall, upon receipt of the notification,
make available their respective shares of debt guarantees for the
Enterprise in accordance with subparagraph (b).
(e) (i) If the Enterprise so requests, State Parties may provide
debt guarantees in addition to those provided in accordance with the scale
referred to in subparagraph (b).
(ii) In lieu of debt guarantees, a State Party may make a
voluntary contribution to the Enterprise in an amount equivalent to that
portion of the debts which it would otherwise be liable to guarantee.
(f) Repayment of the interest-bearing loans shall have priority
over the repayment of the interest-free loans. Repayment of interest-free
loans shall be in accordance with a schedule adopted by the Assembly, upon
the recommendation of the Council and the advice of the Board. In the
exercise of this function the Board shall be guided by the relevant
provisions of the rules, regulations and procedures of the Authority,
which shall take into account the paramount importance of ensuring the
effective functioning of the Enterprise and, in particular, ensuring its
financial independence.
(g) Funds made available to the Enterprise shall be in freely
usable currencies or currencies which are freely available and effectively
usable in the major foreign exchange markets. These currencies shall be
defined in the rules, regulations and procedures of the Authority in
accordance with prevailing international monetary practice. Except as
provided in paragraph 2, no State Party shall maintain or impose
restrictions on the holding, use or exchange by the Enterprise of these
funds.
(h) "Debt guarantee" means a promise of a State Party to creditors
of the Enterprise to pay, pro rata in accordance with the appropriate
scale, the financial obligations of the Enterprise covered by the
guarantee following notice by the creditors to the State Party of a
default by the Enterprise. Procedures for the payment of those obligations
shall be in conformity with the rules, regulations and procedures of the
Authority.
4. The funds, assets and expenses of the Enterprise shall be kept
separate from those of the Authority. This Article shall not prevent the
Enterprise from making arrangements with the Authority regarding
facilities, personnel and services and arrangements for reimbursement of
administrative expenses paid by either on behalf of the other.
5. The records, books and accounts of the Enterprise, including its
annual financial statements, shall be audited annually by an independent
auditor appointed by the Council.
Article 12
Operations
1. The Enterprise shall propose to the Council projects for carrying
out activities in accordance with Article 170. Such proposals shall
include a formal written plan of work for activities in the Area in
accordance with Article 153, paragraph 3, and all such other information
and data as may be required from time to time for its appraisal by the
Legal and Technical Commission and approval by the Council.
2. Upon approval by the Council, the Enterprise shall execute the
project on the basis of the formal written plan of work referred to in
paragraph 1.
3. (a) If the Enterprise does not possess the goods and services
required for its operations it may procure them. For that purpose, it
shall issue invitations to tender and award contracts to bidders offering
the best combination of quality, price and delivery time.
(b) If there is more than one bid offering such a combination, the
contract shall be awarded in accordance with:
(i) the principle of non-discrimination on the basis of
political or other considerations not relevant to the carrying out of
operations with due diligence and efficiency;
(ii) guidelines approved by the Council with regard to the
preferences to be accorded to goods and services originating in developing
States, including the land-locked and geographically disadvantaged among
them.
(c) The Governing Board may adopt rules determining the special
circumstances in which the requirements of invitations to bid may, in the
best interests of the Enterprise, be dispensed with.
4. The Enterprise shall have title to all minerals and processed
substances produced by it.
5. The Enterprise shall sell its products on a non-discriminatory
basis. It shall not give non-commercial discounts.
6. Without prejudice to any general or special power conferred on the
Enterprise under any other provision of this Convention, the Enterprise
shall exercise such powers incidental to its business as shall be
necessary.
7. The Enterprise shall not interfere in the political affairs of any
State Party; nor shall it be influenced in its decisions by the political
character of the State Party concerned. Only commercial considerations
shall be relevant to its decisions, and that considerations shall be
weighed impartially in order to carry out the purposes specified in
Article 1 of this Annex.
Article 13
Legal status, privileges and immunities
1. To enable the Enterprise to exercise its functions, the status,
privileges and immunities set forth in this Article shall be accorded to
the Enterprise in the territories of States Parties. To give effect to
this principle the Enterprise and States Parties may, where necessary,
enter into special agreements.
2. The Enterprise shall have such legal capacity as is necessary for
the exercise of its functions and the fulfilment of its purposes and, in
particular, the capacity:
(a) to enter into contracts, joint arrangements or other
arrangements, including agreements with States and international
organisation;
(b) to acquire, lease, hold and dispose of immovable and movable
property;
(c) to be a party to legal proceedings.
3. (a) Actions may be brought against the Enterprise only in a court
of competent jurisdiction in the territory of a State Party in which the
Enterprise:
(i) has an office or facility;
(ii) has appointed an agent for the purpose of accepting
service or notice of process;
(iii) has entered into a contract for goods or services;
(iv) has issued securities; or
(v) is otherwise engaged in commercial activity.
(b) The property and assets of the Enterprise, wherever located
and by whomsoever held, shall be immune from all forms of seizure,
attachment or execution before the delivery of final judgement against the
Enterprise.
4. (a) The property and assets of the Enterprise, wherever located and
by whomsoever held, shall be immune from requisition, confiscation,
expropriation or any other form of seizure by executive or legislative
action.
(b) The property and assets of the Enterprise, wherever located
and by whomsoever held, shall be free from discriminatory restrictions,
regulations, controls and moratoria of any nature.
(c) The Enterprise and its employees shall respect local laws and
regulations in any State or territory in which the Enterprise or its
employees may do business or otherwise act.
(d) States Parties shall ensure that the Enterprise enjoys all
rights, privileges and immunities accorded by them to entities conducting
commercial activities in their territories. These rights, privileges and
immunities shall be accorded to the Enterprise on no less favourable a
basis than that on which they are accorded to entities engaged in similar
commercial activities. If special privileges are provided by States
Parties for developing States or their commercial entities, the Enterprise
shall enjoy those privileges on a similarly preferential basis.
(e) States Parties may provide special incentives, rights,
privileges and immunities to the Enterprise without the obligation to
provide such incentives, rights, privileges and immunities to other
commercial entities.
5. The Enterprise shall negotiate with the host countries in which its
offices and facilities are located for exemption from direct and indirect
taxation.
6. Each State Party shall take such action as is necessary for giving
effect in terms of its own law to the principles set forth in this Annex
and shall inform the Enterprise of the specific action which it has taken.
7. The Enterprise may waive any of the privileges and immunities
conferred under this Article or in the special agreements referred to in
paragraph 1 to such extent and upon such conditions as it may determine.
ANNEX V. CONCILIATION
SECTION 1. CONCILIATION PROCEDURE PURSUANT TO SECTION I OF PART XV
Article 1
Institution of proceedings
If the parties to a dispute have agreed, in accordance with Article
284, to submit it to conciliation under this section, any such party may
institute the proceedings by written notification addressed to the other
party or parties to the dispute.
Article 2
List of conciliators
A list of conciliators shall be drawn up and maintained by the
Secretary-General of the United Nations. Every State Party shall be
entitled to nominate four conciliators, each of whom shall be a person
enjoying the highest reputation for fairness, competence and integrity.
The names of the persons so nominated shall constitute the list. If at any
time the conciliators nominated by a State Party in the list so
constituted shall be fewer than four, that State Party shall be entitled
to make further nominations as necessary. The name of a conciliator shall
remain on the list until withdrawn by the State Party which made the
nomination, provided that such conciliator shall continue to serve on any
conciliation commission to which that conciliator has been appointed until
the completion of the proceedings before that commission.
Article 3
Constitution of conciliation commission
The conciliation commission shall, unless the parties otherwise agree,
be constituted as follows:
(a) Subject to subparagraph (g), the conciliation commission shall
consist of five members.
(b) The party instituting the proceedings shall appoint two
conciliators to be chosen preferably from the list referred to in Article
2 of this Annex, one of whom may be its national, unless the parties
otherwise agree. Such appointments shall be included in the notification
referred to in Article 1 of this Annex.
(c) The other party to the dispute shall appoint two conciliators
in the manner set forth in subparagraph (b) within 21 days of receipt of
the notification referred to in Article 1 of this Annex. If the
appointments are not made within that period, the party instituting the
proceedings may, within one week of the expiration of that period, either
terminate the proceedings by notification addressed to the other party or
request the Secretary-General of the United Nations to make the
appointments in accordance with subparagraph (e).
(d) Within 30 days after all four conciliators have been
appointed, they shall appoint a fifth conciliator chosen from the list
referred to in Article 2 of this Annex, who shall be chairman. If the
appointment is not made within that period, either party may, within one
week of the expiration of that period, request the Secretary-General of
the United Nations to make the appointment in accordance with subparagraph
(e).
(e) Within 30 days of the receipt of a request under subparagraph
(c) or (d), the Secretary-General of the United Nations shall make the
necessary appointments from the list referred to in Article 2 of this
Annex in consultation with the parties to the dispute.
(f) Any vacancy shall be filled in the manner prescribed for the
initial appointment.
(g) Two or more parties which determine by agreement that they are
in the same interest shall appoint two conciliators jointly. Where two or
more parties have separate interests or there is a disagreement as to
whether they are of the same interest, they shall appoint conciliators
separately.
(h) In disputes involving more than two parties having separate
interests, or where there is disagreement as to whether they are of the
same interest, the parties shall apply subparagraphs (a) to (f) in so far
as possible.
Article 4
Procedure
The conciliation commission shall, unless the parties otherwise agree,
determine its own procedure. The commission may, with the consent of the
parties to the dispute, invite any State Party to submit to it its views
orally or in writing. Decisions of the commission regarding procedural
matters, the report and recommendations shall be made by a majority vote
or its members.
Article 5
Amicable settlement
The commission may draw the attention of the parties to any measures
which might facilitate an amicable settlement of the dispute.
Article 6
Functions of the commission
The commission shall hear the parties, examine their claims and
objections, and make proposals to the parties with a view to reaching an
amicable settlement.
Article 7
Report
1. The commission shall report within 12 months of its constitution.
Its report shall record any agreements reached and, failing agreement, its
conclusions on all questions of fact or law relevant to the matter in
dispute and such recommendations as the commission may deem appropriate
for an amicable settlement. The report shall be deposited with the
Secretary-General of the United Nations and shall immediately be
transmitted by him to the parties to the dispute.
2. The report of the commission, including its conclusions or
recommendations, shall not be binding upon the parties.
Article 8
Termination
The conciliation proceedings are terminated when a settlement has been
reached, when the parties have accepted or one party has rejected the
recommendations of the report by written notification addressed to the
Secretary-General of the United Nations, or when a period of three months
has expired from the date of transmission of the report to the parties.
Article 9
Fees and expenses
The fees and expenses of the commission shall be borne by the parties
to the dispute.
Article 10
Right of parties to modify procedure
The parties to the dispute may by agreement applicable solely to that
dispute modify any provision of this Annex.
SECTION 2. COMPULSORY SUBMISSION TO CONCILIATION PROCEDURE PUR-SUANT TO SECTION 3 OF PART XV
Article 11
Institution of proceedings
1. Any party to a dispute which, in accordance with Part XV, section
3, may be submitted to conciliation under this section, may institute the
proceedings by written notification addressed to the other party or
parties to the dispute.
2. Any party to the dispute, notified under paragraph 1, shall be
obliged to submit to such proceedings.
Article 12
Failure to reply or to submit to conciliation
The failure of a party or parties to the dispute to reply to
notification of institution of proceedings or to submit to such
proceedings shall not constitute a bar to the proceedings.
Article 13
Competence
A disagreement as to whether a conciliation commission acting under
this section has competence shall be decided by the commission.
Article 14
Application of section 1
Articles 2 to 10 of section 1 of this Annex apply subject to this
section.
ANNEX VI. STATUTE OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THESEA
Article 1
General Provisions
1. The International Tribunal for the law of the Sea is constituted
and shall function in accordance with the provisions of this Convention
and this Statute.
2. The seat of the Tribunal shall be in the Free and Hanseatic City of
Hamburg in the Federal Republic of Germany.
3. The Tribunal may sit and exercise its functions elsewhere whenever
it considers this desirable.
4. A reference of a dispute to the Tribunal shall be governed by the
provisions of Parts XI and XV.
SECTION 1. ORGANISATION OF THE TRIBUNAL
Article 2
Composition
1. The Tribunal shall be composed of a body of 21 independent members,
elected from among persons enjoying the highest reputation for fairness
and integrity and of recognised competence in the field of the law of the
sea.
2. In the Tribunal as a whole the representation of the principal
legal systems of the world and equitable geographical distribution shall
be assured.
Article 3
Membership
1. No two members of the Tribunal may be nationals of the same State.
A person who for the purposes of membership in the Tribunal could be
regarded as a national of more than one State shall be deemed to be a
national of the one in which he ordinarily exercises civil and political
rights.
2. There shall be no fewer than three members from each geographical
group as established by the General Assembly of the United Nations.
Article 4
Nominations and elections
1. Each State Party may nominate not more than two persons having the
qualifications prescribed in Article 2 of this Annex. The members of the
Tribunal shall be elected from the list of persons thus nominated.
2. At least three months before the date of the election, the
Secretary-General of the United Nations in the case of the first election
and the Registrar of the Tribunal in the case of subsequent elections
shall address a written invitation to the States Parties to submit their
nominations for members of the Tribunal within two months. He shall
prepare a list in alphabetical order of all the persons thus nominated,
with an indication of the States Parties which have nominated them, and
shall submit it to the States Parties before the seventh day of the last
month before the date of each election.
3. The first election shall be held within six months of the date of
entry into force of this Convention.
4. The members of the Tribunal shall be elected by secret ballot.
Elections shall be held at a meeting of the States Parties convened by the
Secretary-General of the United Nations in the case of the first election
and by a procedure agreed to by the States Parties in the case of
subsequent elections. Two thirds of the States Parties shall constitute a
quorum at that meeting. The persons elected to the Tribunal shall be those
nominees who obtain the largest number of votes and a two-thirds majority
of the States Parties present and voting, provided that such majority
includes a majority of the States Parties.
Article 5
Term of office
1. The members of the Tribunal shall be elected for nine years and may
be re-elected; provided, however, that of the members elected at the
first election, the terms of seven members shall expire at the end of
three years and the terms of seven more members shall expire at the end of
six years.
2. The members of the Tribunal whose terms are to expire at the end of
the above-mentioned initial periods of three and six years shall be chosen
by lot to be drawn by the Secretary-General of the United Nations
immediately after the first election.
3. The members of the Tribunal shall continue to discharge their
duties until their places have been filled. Though replaced, they shall
finish any proceedings which they may have begun before the date of their
replacement.
4. In the case of the resignation of a member of the Tribunal, the
letter of resignation shall be addressed to the President of the Tribunal.
The place becomes vacant on the receipt of that letter.
Article 6
Vacancies
1. Vacancies shall be filled by the same method as that laid down for
the first election, subject to the following provision; the Registrar
shall, within one month of the occurrence of the vacancy, proceed to issue
the invitations provided for in Article 4 of this Annex, and the date of
the election shall be fixed by the President of the Tribunal after
consultation with the States Parties.
2. A member of the Tribunal elected to replace a member whose term of
office has not expired shall hold office for the remainder of his
predecessor's term.
Article 7
Incompatible activities
1. No member of the Tribunal may exercise any political or
administrative function, or associate actively with or be financially
interested in any of the operations of any enterprise concerned with the
exploration for or exploitation of the resources of the sea or the sea-bed
or other commercial use of the sea or the sea-bed.
2. No member of the Tribunal may act as agent, counsel or advocate in
any case.
3. Any doubt on these points shall be resolved by decision of the
majority of the other members of the Tribunal present.
Article 8
Conditions relating to participation of members in a particular case
1. No member of the Tribunal may participate in the decision of any
case in which he has previously taken part as agent, counsel or advocate
for one of the parties, or as a member of a national or international
court or tribunal, or in any other capacity.
2. If, for some special reason, a member of the Tribunal considers
that he should not take part in the decision of a particular case, he
shall so inform the President of the Tribunal.
3. If the President considers that for some special reason one of the
members of the Tribunal should not sit in a particular case, he shall give
him notice accordingly.
4. Any doubt on these points shall be resolved by decision of the
majority of the other members of the Tribunal present.
Article 9
Consequence of ceasing to fulfil required conditions
If, in the unanimous opinion of the other members of the Tribunal, a
member has ceased to fulfil the required conditions, the President of the
Tribunal shall declare the seat vacant.
Article 10
Privileges and immunities
The members of the Tribunal, when engaged on the business of the
Tribunal, shall enjoy diplomatic privileges and immunities.
Article 11
Solemn declaration by members
Every member of the Tribunal shall, before taking up his duties, make
a solemn declaration in open session that he will exercise his powers
impartially and conscientiously.
Article 12
President, Vice-President and Registrar
1. The Tribunal shall elect its President and Vice-President for three
years; they may be re-elected.
2. The Tribunal shall appoint its Registrar and may provide for the
appointment of such other officers as may be necessary.
3. The President and the Registrar shall reside at the seat of the
Tribunal.
Article 13
Quorum
1. All available members of the Tribunal shall sit; a quorum of 11
elected members shall be required to constitute the Tribunal.
2. Subject to Article 17 of this Annex, the Tribunal shall determine
which members are available to constitute the Tribunal for the
consideration of a particular dispute, having regard to the effective
functioning of the chambers as provided for in Articles 14 and 15 of this
Annex.
3. All disputes and applications submitted to the Tribunal shall be
heard and determined by the Tribunal, unless Article 14 of this Annex
applies, or the parties request that it shall be dealt with in accordance
with Article 15 of this Annex.
Article 14
Sea-Bed Disputes Chamber
A Sea-Bed Disputes Chamber shall be established in accordance with the
provisions of section 4 of this Annex. Its jurisdiction, powers and
functions shall be as provided for in Part XI, section 5.
Article 15
Special chambers
1. The Tribunal may form such chambers, composed of three or more of
its elected members, as it considers necessary for dealing with
particular categories of disputes.
2. The Tribunal shall form a chamber for dealing with a particular
dispute submitted to it if the parties so request. The composition of such
a chamber shall be determined by the Tribunal with the approval of the
parties.
3. With a view to the speedy dispatch of business, the Tribunal shall
form annually a chamber composed of five of its elected members which may
hear and determine disputes by summary procedure. Two alternative members
shall be selected for the purpose of replacing members who are unable to
participate in a particular proceeding.
4. Disputes shall be heard and determined by the chambers provided for
in this Article if the parties so request.
5. A judgement given by any of the chambers provided for in this
Article and in Article 14 of this Annex shall be considered as rendered by
the Tribunal.
Article 16
Rules of the Tribunal
The Tribunal shall frame rules for carrying out its functions. In
particular it shall lay down rules of procedure.
Article 17
Nationality of members
1. Members of the Tribunal of the nationality of any of the parties to
a dispute shall retain their right to participate as members of the
Tribunal.
2. If the Tribunal, when hearing a dispute, includes upon the bench a
member of the nationality of one of the parties, any other party may
choose a person to participate as a member of the Tribunal.
3. If the Tribunal, when hearing a dispute, does not include upon the
bench a member of the nationality of the parties, each of those parties
may choose a person to participate as a member of the Tribunal.
4. This Article applies to the chambers referred to in Articles 14 and
15 of this Annex. In such cases, the President, in consultation with the
parties, shall request specified members of the Tribunal forming the
chamber, as many as necessary, to give place to the members of the
Tribunal of the nationality of the parties concerned, and, failing such,
or if they are unable to be present, to the members specially chosen by
the parties.
5. Should there be several parties in the same interest, they shall,
for the purpose of the preceding provisions, be considered as one party
only. Any doubt on this point shall be settled by the decision of the
Tribunal.
6. Members chosen in accordance with paragraphs 2, 3 and 4 shall
fulfil the conditions required by Articles 2, 8 and 11 of this Annex. They
shall participate in the decision on terms of complete equality with their
colleagues.
Article 18
Remuneration of members
1. Each elected member of the Tribunal shall receive an annual
allowance and, for each day on which he exercises his functions, a special
allowance, provided that in any year the total sum payable to any member
as special allowance shall not exceed the amount of the annual allowance.
2. The President shall receive a special annual allowance.
3. The Vice-President shall receive a special allowance for each day
on which he acts as President.
4. The members chosen under Article 17 of this Annex, other than
elected members of the Tribunal, shall receive compensation for each day
on which they exercise their functions.
5. The salaries, allowances and compensation shall be determined from
time to time at meetings of the States Parties, taking into account the
work load of the Tribunal. They may not be decreased during the term of
office.
6. The salary of the Registrar shall be determined at meetings of the
States Parties, on the proposal of the Tribunal.
7. Regulations adopted at meetings of the States Parties shall
determine the conditions under which retirement pensions may be given to
members of the Tribunal and to the Registrar, and the conditions under
which members of the Tribunal and Registrar shall have their travelling
expenses refunded.
8. The salaries, allowances, and compensation shall be free of all
taxation.
Article 19
Expenses of the Tribunal
The tribunal's expenses shall be covered by the States Parties are *
by the Authority, in the form and under the conditions determined in the
meetings of the States Parties.
[* Perhaps, there would be "and" here-noted by compiler.]
When an entity other than a State Party or the Authority is part** of
a dispute which has been submitted to the Tribunal, the latter will fix
the amount which this party shall have to contribute to cover the expenses
of the Tribunal.
[** Perhaps, there would be "party" here-noted by compiler.]
SECTION 2. COMPETENCE
Article 20
Access to the Tribunal
1. The Tribunal shall be open to States Parties.
2. The Tribunal shall be open to entities other than States Parties in
any case expressly provided for in Part XI or in any case submitted
pursuant to any other agreement conferring jurisdiction on the Tribunal
which is accepted by all the parties to that case.
Article 21
Jurisdiction
The jurisdiction of the Tribunal comprises all disputes and all
applications submitted to it in accordance with this Convention and all
matters specifically provided for in any other agreement which confers
jurisdiction on the Tribunal.
Article 22
Reference of disputes subject to other agreements
If all the parties to a treaty or convention already in force and
concerning the subject-matter covered by this Convention so agree, any
disputes concerning the interpretation or application of such treaty or
convention may, in accordance with such agreement, be submitted to the
Tribunal.
Article 23
Applicable law
The Tribunal shall decide all disputes and applications in accordance
with Article 293.
SECTION 3. PROCEDURE
Article 24
Institution of proceedings
1. Disputes are submitted to the Tribunal, as the case may be, either
by notification of a special agreement or by written application,
addressed to the Registrar. In either case, the subject of the dispute and
the parties shall be indicated.
2. The Registrar shall forthwith notify the special agreement or the
application to all concerned.
3. The Registrar shall also notify all States Parties.
Article 25
Provisional measures
1. In accordance with Article 290, the Tribunal and its Sea-Bed
Disputes Chamber shall have the power to prescribe provisional measures.
2. If the Tribunal is not in session or a sufficient number of members
is not available to constitute a quorum, the provisional measures shall be
prescribed by the chamber of summary procedure formed under Article 15,
paragraph 3, of this Annex. Notwithstanding Article 15, paragraph 4, of
this Annex, such provisional measures may be adopted at the request of any
party to the dispute. They shall be subject to review and revision by the
Tribunal.
Article 26
Hearing
1. The hearing shall be under the control of the President or, if he
is unable to preside, of the Vice-President. If neither is able to
preside, the senior judge present of the Tribunal shall preside.
2. The hearing shall be public, unless the Tribunal decides otherwise
or unless the parties demand that the public be not admitted.
Article 27
Conduct of case
The Tribunal shall make orders for the conduct of the case, decide the
form and time in which each party must conclude its arguments, and make
all arrangements connected with the taking of evidence.
Article 28
Default
When one of the parties does not appear before the Tribunal or fails
to defend its case, the other party may request the Tribunal to continue
the proceedings and make its decision. Absence of a party of failure of a
party to defend its case shall not constitute a bar to the proceedings.
Before making its decision, the Tribunal must satisfy itself not only that
it has jurisdiction over the dispute, but also that the claim is well
founded in fact and law.
Article 29
Majority for decision
1. All questions shall be decided by a majority of the members of the
Tribunal who are present.
2. In the event of an equality of votes, the President or the member
of the Tribunal who acts in his place shall have a casting vote.
Article 30
Judgement
1. The judgment shall state the reasons on which it is based.
2. It shall contain the names of the members of the Tribunal who have
taken part in the decision.
3. If the judgment does not represent in whole or in part the
unanimous opinion of the members of the Tribunal, any member shall be
entitled to deliver a separate opinion.
4. The judgment shall be signed by the President and by the Registrar.
It shall be read in open court, due notice having been given to the
parties to the dispute.
Article 31
Request to intervene
1. Should a State Party consider that it has an interest of a legal
nature which may be affected by the decision in any dispute, it may submit
a request to the Tribunal to be permitted to intervene.
2. It shall be for the Tribunal to decide upon this request.
3. If a request to intervene is granted, the decision of the Tribunal
in respect of the dispute shall be binding upon the intervening State
Party in so far as it relates to matters in respect of which that State
Party intervened.
Article 32
Right to intervene in cases of interpretation or application
1. Whenever the interpretation or application of this Convention is in
question, the Registrar shall notify all States Parties forthwith.
2. Whenever pursuant to Article 21 or 22 of this Annex the
interpretation or application of an international agreement is in
question, the Registrar shall notify all the parties to the agreement.
3. Every party referred to in paragraphs 1 and 2 has the right to
intervene in the proceedings; if it uses this right, the interpretation
given by the judgment will be equally binding upon it.
Article 33
Finality and binding force of decisions
1. The decision of the Tribunal is final and shall be complied with by
all the parties to the dispute.
2. The decision shall have no binding force except between the parties
in respect of that particular dispute.
3. In the event of dispute as to the meaning or scope of the decision,
the Tribunal shall construe it upon the request of any party.
Article 34
Costs
Unless otherwise decided by the Tribunal, each party shall bear its
own costs.
SECTION 4. SEA-BED DISPUTES CHAMBER
Article 35
Composition
1. The Sea-Bed Disputes Chamber referred to in Article 14 of this
Annex shall be composed of 11 members, selected by a majority of the
elected members of the Tribunal from among them.
2. In the selection of the members of the Chamber, the representation
of the principal legal systems of the world and equitable geographical
distribution shall be assured. The Assembly of the Authority may adopt
recommendations of a general nature relating to such representation and
distribution.
3. The members of the Chamber shall be selected every three years and
may be elected for a second term.
4. The Chamber shall elect its President from among its members, who
shall serve for the term for which the Chamber has been selected.
5. If any proceedings are still pending at the end of any three-year
period for which the Chamber has been selected, the Chamber shall complete
the proceedings in its original composition.
6. If a vacancy occurs in the Chamber, the Tribunal shall select a
successor from among its elected members, who shall hold office for the
remainder of his predecessor's term.
7. A quorum of seven of the members selected by the Tribunal shall be
required to constitute the Chamber.
Article 36
Ad Hoc Chambers
1. The Sea-Bed Disputes Chamber shall form an ad hoc chamber, composed
of three of its members, for dealing with a particular dispute submitted
to it in accordance with Article 188, paragraph 1(b). The composition of
such a chamber shall be determined by the Sea-Bed Disputes Chamber with
the approval of the parties.
2. If the parties do not agree on the composition of an ad hoc
chamber, each party to the dispute shall appoint one member, and the third
member shall be appointed by them in agreement. If they disagree, or if
any party fails to make an appointment, the President of the Sea-Bed
Disputes Chamber shall promptly make the appointment or appointments from
among its members, after consultation with the parties.
3. Members of the ad hoc chamber must not be in the service of, or
nationals of, any of the parties to the dispute.
Article 37
Access
The Chamber shall be open to the States Parties, the Authority and the
other entities referred to in Part XI, section 5.
Article 38
Applicable law
In addition to the provisions of Article 293, the Chamber shall apply:
(a) the rules, regulations and procedures of the Authority adopted
in accordance with this Convention; and
(b) the terms of contracts concerning activities in the Area in
matters relating to those contracts.
Article 39
Enforcement of decisions of the Chamber
The decisions of the Chamber shall be enforceable in the territories
of the States Parties in the same manner as judgements or orders of the
highest court of the State Party in whose territory the enforcement is
sought.
Article 40
Applicability of other sections of this Annex
1. The other sections of this Annex which are not incompatible with
this section apply to the Chamber.
2. In the exercise of its functions relating to advisory opinions, the
Chamber shall be guided by the provisions of this Annex relating to
procedure before the Tribunal to the extent to which it recognises them to
be applicable.
SECTION 5. AMENDMENTS
Article 41
Amendments
1. Amendments to this Annex, other than amendments to section 4, may
be adopted only in accordance with Article 313 or by consensus at a
conference convened in accordance with this Convention.
2. Amendments to section 4 may be adopted only in accordance with
Article 314.
3. The Tribunal may propose such amendments to this Statute as it may
consider necessary, by written communications to the States Parties for
their consideration in conformity with paragraphs 1 and 2.
ANNEX VII. ARBITRATION
Article 1
Institution of proceedings
Subject to the provisions of Part XV, any party to a dispute may
submit the dispute to the arbitral procedure provided for in this Annex by
written notification addressed to the other party or parties to the
dispute. The notification shall be accompanied by a statement of the claim
and the grounds on which it is based.
Article 2
List of arbitrators
1. A list of arbitrators shall be drawn up and maintained by the
Secretary-General of the United Nations. Every State Party shall be
entitled to nominate four arbitrators, each of whom shall be a person
experienced in maritime affairs and enjoying the highest reputation for
fairness, competence and integrity. The names of the persons so nominated
shall constitute the list.
2. If at any time the arbitrators nominated by a State Party in the
list so constituted shall be fewer than four, that State Party shall be
entitled to make further nominations as necessary.
3. The name of an arbitrator shall remain on the list until withdrawn
by the State Party which made the nomination, provided that such
arbitrator shall continue to serve on any arbitral tribunal to which that
arbitrator has been appointed until the completion of the proceedings
before that arbitral tribunal.
Article 3
Constitution of arbitral tribunal
For the purpose of proceedings under this Annex, the arbitral tribunal
shall, unless the parties otherwise agree, be constituted as follows:
(a) Subject to subparagraph (g), the arbitral tribunal shall
consist of five members.
(b) The party instituting the proceedings shall appoint one member
to be chosen preferably from the list referred to in Article 2 of this
Annex, who may be its national. The appointment shall be included in the
notification referred to in Article 1 of this Annex.
(c) The other party to the dispute shall, within 30 days of
receipt of the notification referred to in Article 1 of this Annex,
appoint one member to be chosen preferably from the list, who may be its
national. If the appointment is not made within that period, the party
instituting the proceedings may, within two weeks of the expiration of
that period, request that the appointment be made in accordance with
subparagraph (e).
(d) The other three members shall be appointed by agreement
between the parties. They shall be chosen preferably from the list and
shall be nationals of third States unless the parties otherwise agree. The
parties to the dispute shall appoint the President of the arbitral
tribunal from among those three members. If, within 60 days of receipt of
the notification referred to in Article 1 of this Annex, the parties are
unable to reach agreement on the appointment of one or more of the members
of the tribunal to be appointed by agreement, or on the appointment of the
President, the remaining appointment or appointments shall be made in
accordance with subparagraph (e), at the request of a party to the
dispute. Such request shall be made within two weeks of the expiration of
the aforementioned 60-day period.
(e) Unless the parties agree that any appointment under
subparagraphs (c) and (d) be made by a person or a third State chosen by
the parties, the President of the International Tribunal for the Law of
the Sea shall make the necessary appointments. If the President is unable
to act under this subparagraph or is a national of one of the parties to
the dispute, the appointment shall be made by the next senior member of
the International Tribunal for the Law of the Sea who is available and is
not a national of one of the parties. The appointments referred to in this
subparagraph shall be made from the list referred to in Article 2 of this
Annex within a period of 30 days of the receipt of the request and in
consultation with the parties. The members so appointed shall be of
different nationalities and may not be in the service of, ordinarily
resident in the territory of, or nationals of, any of the parties to the
dispute.
(f) Any vacancy shall be filled in the manner prescribed for the
initial appointment.
(g) Parties in the same interest shall appoint one member of the
tribunal jointly by agreement. Where there are several parties having
separate interests or where there is disagreement as to whether they are
of the same interest, each of them shall appoint one member of the
tribunal. The number of members of the tribunal appointed separately by
the parties shall always be smaller by one than the number of members of
the tribunal to be appointed jointly by the parties.
(h) In disputes involving more than two parties, the provisions of
subparagraphs (a) to (f) shall apply to the maximum extent possible.
Article 4
Functions of arbitral tribunal
An arbitral tribunal constituted under Article 3 of this Annex shall
function in accordance with this Annex and the other provisions of this
Convention.
Article 5
Procedure
Unless the parties to the dispute otherwise agree, the arbitral
tribunal shall determine its own procedure, assuring to each party a full
opportunity to be heard and to present its case.
Article 6
Duties of parties to a dispute
The parties to the dispute shall facilitate the work of the arbitral
tribunal and, in particular, in accordance with their law and using all
means at their disposal, shall:
(a) provide it with all relevant documents, facilities and
information; and
(b) enable it when necessary to call witnesses or experts and
receive their evidence and to visit the localities to which the case
relates.
Article 7
Expenses
Unless the arbitral tribunal decides otherwise because of the
particular circumstances of the case, the expenses of the tribunal,
including the remuneration of its members, shall be borne by the parties
to the dispute in equal shares.
Article 8
Required majority for decisions
Decisions of the arbitral tribunal shall be taken by a majority vote
of its members. The absence or abstention of less than half of the members
shall not constitute a bar to the tribunal reaching a decision. In the
event of an equality of votes, the President shall have a casting vote.
Article 9
Default of appearance
If one of the parties to the dispute does not appear before the
arbitral tribunal or fails to defend its case, the other party may request
the tribunal to continue the proceedings and to make its award. Absence of
a party or failure of a party to defend its case shall not constitute a
bar to the proceedings. Before making its award, the arbitral tribunal
must satisfy itself not only that it has jurisdiction over the dispute but
also that the claim is well founded in fact and law.
Article 10
Award
The award of the arbitral tribunal shall be confined to the
subject-matter of the dispute and state the reasons on which it is based.
It shall contain the names of the members who have participated and the
date of the award. Any member of the tribunal may attach a separate or
dissenting opinion to the award.
Article 11
Finality of award
The award shall be final and without appeal, unless the parties to the
dispute have agreed in advance to an appellate procedure. It shall be
complied with by the parties to the dispute.
Article 12
Interpretation or implementation of award
1. Any controversy which may arise between the parties to the dispute
as regards the interpretation or manner of implementation of the award may
be submitted by either party for decision to the arbitral tribunal which
made the award. For this purpose, any vacancy in the tribunal shall be
filled in the manner provided for in the original appointments of the
members of the tribunal.
2. Any such controversy may be submitted to another court or tribunal
under Article 287 by agreement of all the parties to the dispute.
Article 13
Application to entities other than States Parties
The provisions of this Annex shall apply mutatis mutandis to any
dispute involving entities other than States Parties.
ANNEX VIII. SPECIAL ARBITRATION
Article 1
Institution of proceedings
Subject to Part XV, any party to a dispute concerning the
interpretation or application of the Articles of this Convention relating
to (1) fisheries, (2) protection and preservation of the marine
environment, (3) marine scientific research, or (4) navigation, including
pollution from vessels and by dumping, may submit the dispute to the
special arbitral procedure provided for in this Annex by written
notification addressed to the other party or parties to the dispute. The
notification shall be accompanied by a statement of the claim and the
grounds on which it is based.
Article 2
Lists of experts
1. A list of experts shall be established and maintained in respect of
each of the fields of (1) fisheries, (2) protection and preservation of
the marine environment, (3) marine scientific research, and (4)
navigation, including pollution from vessels and by dumping.
2. The lists of experts shall be drawn up and maintained, in the field
of fisheries by the Food and Agriculture Organisation of the United
Nations, in the field of protection and preservation of the marine
environment by the United Nations Environment Programme, in the field of
marine scientific research by the Inter-Governmental Oceanographic
Commission, in the field of navigation, including pollution from vessels
and by dumping, by the International Maritime Organisation, or in each
case by the appropriate subsidiary body concerned to which such
organisation, programme or commission has delegated this function.
3. Every State Party shall be entitled to nominate two experts in each
field whose competence in the legal, scientific or technical aspects of
such field is established and generally recognised and who enjoy the
highest reputation for fairness and integrity. The names of the persons so
nominated in each field shall constitute the appropriate list.
4. If at any time the experts nominated by a State Party in the list
so constituted shall be fewer than two, that State Party shall be entitled
to make further nominations as necessary.
5. The name of an expert shall remain on the list until withdrawn by
the State Party which made the nomination, provided that such expert shall
continue to serve on any special arbitral tribunal to which that expert
has been appointed until the completion of the proceedings before that
special arbitral tribunal.
Article 3
Constitution of special arbitral tribunal
For the purpose of proceedings under this Annex, the special arbitral
tribunal shall, unless the parties otherwise agree, be constituted as
follows:
(a) Subject to subparagraph (g), the special arbitral tribunal
shall consist of five members.
(b) The party instituting the proceedings shall appoint two member
to be chosen preferably from the appropriate list or lists referred to in
Article 2 of this Annex relating to the matters in dispute, one of whom
may be its national. The appointment shall be included in the notification
referred to in Article 2 of this Annex.
(c) The other party to the dispute shall, within 30 days of
receipt of the notification referred to in Article 1 of this Annex,
appoint two members to be chosen preferably from the appropriate list or
lists relating to the matters in dispute, one of whom may be its national.
If the appointments are not made within that period, the party instituting
the proceedings may, within two weeks of the expiration of that period,
request that the appointments be made in accordance with subparagraph (e).
(d) The parties to the dispute shall by agreement appoint the
President of the special arbitral tribunal, chosen preferably from the
appropriate list, who shall be a national of a third State, unless the
parties otherwise agree. If, within 30 days of receipt of the notification
referred to in Article 1 of this Annex, the parties are unable to reach
agreement on the appointment of the President, the appointment shall be
made in accordance with subparagraph (e), at the request of a party to the
dispute. Such request shall be made within two weeks of the expiration of
the aforementioned 30-day period.
(e) Unless the parties agree that the appointment be made by a
person or a third State chosen by the parties, the Secretary-General of
the United Nations shall make the necessary appointments within 30 days of
receipt of a request under subparagraphs (c) and (d). The appointments
referred to in this subparagraph shall be made from the appropriate list
or lists of experts referred to in Article 2 of this Annex and in
consultation with the parties to the dispute and the appropriate
international organisation. The members so appointed shall be of different
nationalities and may not be in the service of, ordinarily resident in the
territory of, or nationals of, any of the parties to the dispute.
(f) Any vacancy shall be filled in the manner prescribed for the
initial appointment.
(g) Parties in the same interest shall appoint two members of the
tribunal jointly by agreement. Where there are several parties having
separate interests or where there is disagreement as to whether they are
of the same interest, each of them shall appoint one member of the
tribunal.
(h) In disputes involving more than two parties, the provisions of
subparagraphs (a) to (f) shall apply to the maximum extent possible.
Article 4
General provisions
Annex VII, Articles 4 to 13, apply mutatis mutandis to the special
arbitration proceedings in accordance with this Annex.
Article 5
Fact finding
1. The parties to a dispute concerning the interpretation or
application of the provisions of this Convention relating to (1)
fisheries, (2) protection and preservation of the marine environment, (3)
marine scientific research, or (4) navigation, including pollution from
vessels and by dumping, may at any time agree to request a special
arbitral tribunal constituted in accordance with Article 3 of this Annex
to carry out an inquiry and establish the facts giving rise to the
dispute.
2. Unless the parties otherwise agree, the findings of fact of the
special arbitral tribunal acting in accordance with paragraph 1, shall be
considered as conclusive as between the parties.
3. If all the parties to the dispute so request, the special arbitral
tribunal may formulate recommendations which, without having the force of
a decision, shall only constitute the basis for a review by the parties of
the questions giving rise to the dispute.
4. Subject to paragraph 2, the special arbitral tribunal shall act in
accordance with the provisions of this Annex, unless the parties otherwise
agree.
ANNEX IX. PARTICIPATION BY INTERNATIONAL ORGANISATIONS
Article 1
Use of terms
For the purposes of Article 305 and of this Annex, "international
organisation" means an intergovernmental organisation constituted by
States to which its member States have transferred competence over matters
governed by this Convention, including the competence to enter into
treaties in respect of those matters.
Article 2
Signature
An international organisation may sign this Convention if a majority
of its member States are signatories of this Convention. At the time of
signature an international organisation shall make a declaration
specifying the matters governed by this Convention in respect of which
competence has been transferred to that organisation by its member States
which are signatories, and the nature and extend of that competence.
Article 3
Formal confirmation and accession
1. An international organisation may deposit its instrument of formal
confirmation or of accession if a majority of its member States deposit or
have deposited their instruments of ratification or accession.
2. The instruments deposited by the international organisation shall
contain the undertakings and declarations required by Articles 4 and 5 of
this Annex.
Article 4
Extent of participation and rights and obligations
1. The instrument of formal confirmation or of accession of an
international organisation shall contain an undertaking to accept the
rights and obligations of States under this Convention in respect of
matters relating to which competence has been transferred to it by its
member States which are Parties to this Convention.
2. An international organisation shall be a Party to this Convention
to the extent that it has competence in accordance with the declarations,
communications of information or notifications referred to in Article 5 of
this Annex.
3. Such an international organisation shall exercise the rights and
perform the obligations which its member States which are Parties would
otherwise have under this Convention, on matters relating to which
competence has been transferred to it by those member States. The member
States of that international organisation shall not exercise competence
which they have transferred to it.
4. Participation of such an international organisation shall in no
case entail an increase of the representation to which its member States
which are States Parties would otherwise be entitled, including rights in
decision-making.
5. Participation of such an international organisation shall in no
case confer any rights under this Convention on member States of the
organisations which are not States Parties to this Convention.
6. In the event of a conflict between the obligations of an
international organisation under this Convention and its obligations under
the agreement establishing the organisation or any acts relating to it,
the obligations under this Convention shall prevail.
Article 5
Declarations, notifications and communications
1. The instrument of formal confirmation or of accession of an
international organisation shall contain a declaration specifying the
matters governed by this Convention in respect of which competence has
been transferred to the organisation by its member States which are
Parties to this Convention.
2. A member State of an international organisation shall, at the time
it ratifies or accedes to this Convention or at the time when the
organisation deposits its instrument of formal confirmation or of
accession, whichever is later, make a declaration specifying the matters
governed by this Convention in respect of which it has transferred
competence to the organisation.
3. States Parties which are member States of an international
organisation which is a Party to this Convention shall be presumed to have
competence over all matters governed by this Convention in respect of
which transfers of competence to the organisation have not been
specifically declared, notified or communicated by those States under this
Article.
4. The international organisation and its member States which are
States Parties shall promptly notify the depositary of this Convention of
any changes to the distribution of competence, including new transfers of
competence, specified in the declarations under paragraphs 1 and 2.
5. Any State Party may request an international organisation and its
member States which are States Parties to provide information as to which,
as between the organisation and its member States, has competence in
respect of any specific question which has arisen. The organisation and
the member States concerned shall provide this information within a
reasonable time. The international organisation and the member States may
also, on their own initiative, provide this information.
6. Declarations, notifications and communications of information under
this Article shall specify the nature and extent of the competence
transferred.
Article 6
Responsibility and liability
1. Parties which have competence under Article 5 of this Annex shall
have responsibility for failure to comply with obligations or for any
other violation of this Convention.
2. Any State Party may request an international organisation or its
member States which are States Parties for information as to who has
responsibility in respect of any specific matter. The organisation and the
member States concerned shall provide this information. Failure to provide
this information within a reasonable time or the provision of
contradictory information shall result in joint and several liability.
Article 7
Settlement of disputes
1. At the time of deposit of its instrument of formal confirmation or
of accession, or at any time thereafter, an international organisation
shall be free to choose, by means of a written declaration, one or more of
the means for the settlement of disputes concerning the interpretation or
application of this Convention, referred to in Article 287, paragraph 1
(a), (c) or (d).
2. Part XV applies mutatis mutandis to any dispute between Parties to
this Convention, one or more of which are international organisations.
3. When an international organisation and one or more of its member
States are joint parties to a dispute, or parties in the same interest,
the organisation shall be deemed to have accepted the same procedures for
the settlement of disputes as the member States: when, however, a member
State has chosen only the International Court of Justice under Article
287, the organisation and the member State concerned shall be deemed to
have accepted arbitration in accordance with Annex VII, unless the parties
to the dispute otherwise agree.
Article 8
Applicability of Part XVII
Part XVII applies mutatis mutandis to an international organisation,
except in respect of the following:
(a) the instrument of formal confirmation or of accession of an
international organisation shall not be taken into account in the
application of Article 308, paragraph 1;
(b) (i) an international organisation shall have exclusive
capacity with respect to the application of Articles 312 to 315, to the
extent that it has competence under Article 5 of this Annex over the
entire subject-matter of the amendment;
(ii) the instrument of formal confirmation or of accession of
an international organisation to an amendment, the entire subject-matter
over which the international organisation has competence under Article 5
of this Annex, shall be considered to be the instrument of ratification or
accession of each of the member States which are States Parties, for the
purposes of applying Article 316, paragraphs 1, 2 and 3;
(iii) the instrument of formal confirmation or of accession of
the international organisation shall not be taken into account in the
application of Article 316, paragraphs 1 and 2, with regard to all other
amendments;
(c) (i) an international organisation may not denounce this
Convention in accordance with Article 317 if any of its member States is a
State Party and if it continues to fulfil the qualifications specified in
Article 1 of this Annex;
(ii) an international organisation shall denounce this
Convention when none of its member States is a State Party or if the
international organisation no longer fulfils the qualifications specified
in Article 1 of this Annex. Such denunciation shall take effect
immediately.
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