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UNCLOS Article 82: A Review and the Hurdles to Implementation

Wylie Spicer QC

June 27, 2016

Legal Order in the World’s Oceans: UN Convention on the Law of the Sea 40th Annual Conference of the Center for Oceans Law & Policy

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The Continental Shelf Historically

1958 Geneva Continental Shelf

Convention

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The Continental Shelf

1958 Geneva Continental Shelf

Convention UNCLOS Package

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The Continental Shelf

1958 Geneva Continental Shelf

Convention

UNCLOS Package

Art. 76-82

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Art. 82 Application

Outer Continental Shelf

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Impact of Technological Change

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Art. 82 Potential Application

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Art. 82 Potential Application

beyond 200 nm

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UNCLOS Art. 82

Coastal State

UNCLOS State Parties

Contribution of Payments or

In-Kind

Distribution to Convention

State Parties

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• Annual payment or contribution in-kind via Authority

• Commence in 6th year of production @ 1% & rise each year until 7%

• Based on all production except that consumed in the operation

• Calculated on value or volume • Gross royalty

Payment Obligation

Coastal State

Contribution of Payments or In-

Kind

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• Domestic legislation as tool to resolve textual ambiguity of terms (ISA Study 15)

• Limitations – Tax regimes (Norway,

UK)

– Incompatible legislation (e.g. Brazil, resources used for operations)

“Collection” Issues

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Domestic legislation (Art. 82 Compatible)

UNCLOS State Parties

• Minimally treated, marketable condition “resource”

• Exclusion of reasonable losses, reinjected gas, production uses

“All Production/ Volume”

• Market value; Transportation & Processing allowance “Value”

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• State Parties • “Equitable sharing

criteria” • Interests & needs of

developing States, particularly least developed & landlocked States

Entitlement to Funds

UNCLOS State Parties

Distribution to Convention State

Parties

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“Distribution” Issues

UNCLOS State Parties

Distribution to Convention

State Parties

Common Heritage of Mankind?

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ISA Role

COUNCIL ASSEMBLY

Art. 160 Regs

“equitable sharing” recommendations

Intra Vires

Art. 162(2)(o) Art. 160(2)(f)

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• Available to State Parties (Art. 291)

• Other entities only as specifically per UNCLOS (Art. 291)

• Can be used to resolve Art. 82 dispute (Arts. 286, 288)

• Binding if used (Art. 296)

State-State Disputes

UNCLOS

Part XV Mechanism

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ISA-State Disputes

• Art. 187 Criteria

Excess Jurisdiction Alleged State – Authority Dispute Part XI Activity in the Area

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• ISA immune from legal process (Art. 178)

• No remedy for ultra vires regs through UNCLOS (Arts. 187-189)

• Possible advisory opinion (Arts. 159, 191)

ISA-State Disputes

UNCLOS

Part XI Mechanism

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Questions?

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Legal Notes

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