LAW OF THE SEA AND INVESTMENT PROTECTION IN DEEP SEABED MINING (original) (raw)
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UNCLOS and investor claims for deep seabed mining in the Area: an investment law of the sea
Foreign capital has increasingly become involved in the exploration for deep sea minerals in the Area. Foreign-owned companies have received the sponsorship of their state of incorporation, as required by UNCLOS, in order to be granted a contract by the International Seabed Authority. Sponsoring states’ policies toward such foreign-owned entities may go further than the mere implementation of UNCLOS obligations by pursuing national objectives such as better environmental protection or greater financial benefits for the local population. However, international law confers certain protections to foreign investment by binding states to respect an international minimum standard of treatment. Various UNCLOS provisions incorporate those guarantees, which could consequently be litigated through the dispute settlement system in Part XI of the convention.Yet, only the contractors’ state of nationality and the Authority have the required standing to do sounder the convention.
Cornell International Law Journal Online, 2020
Deep seabed mining (DSM) has become more accessible with the advancement of modern technology. The exploration and exploitation of oil and gas are some of the most common activities on the seabed. In 1873, during the scientific expedition of the HMS Challenger, scientists first discovered polymetallic nodules on the ocean floor. However, due to lack of advanced science and technology, it was not possible for States to explore and exploitate mineral resources found in deep seabed. Again during the International Geophysical Year (1957-58), polymetallic nodules were collected on the Tuamotu Plateau at a depth of some 900 meters. These nodules are a rich source of valuable minerals such as manganese, copper, cobalt, nickel, and others. At that time, DSM activities proved to be commercially lucrative and appeared to be an issue of international interest. Under the auspices of the UN, negotiation began to develop a legal regime concerning DSM. After years of negotiations in 1982, the member States adopted the UN Convention of the Law of the Sea (UNCLOS) which incorporated provisions relating to DSM in part XI. However, UNCLOS came into force in 1994 only after an amendment was made to part XI by an implementation agreement. Since the last decade, DSM activities increased and States have rekindled their interest in DSM. DSM activities which involve significant foreign direct investment1 (FDI) and technological knowhow, are mostly undertaken by private entities that are required to obtain a license from the predominantly coastal States. Disputes might ensue between the sponsoring State and a foreign-owned mining entity regarding i) implementation of the sponsorship agreement; and ii) revocation of the certificate of sponsorship. The DSM legal regime does not offer a dispute settlement mechanism between the sponsoring State and a foreign investor as the agreement is only valid between the contracting parties. Thus, in this article I will argue that in the absence of a dispute settlement forum for foreign investors, international investment law vis à vis investment arbitration could rescue and protect investment in DSM when the Sponsoring State’s activities adversely affects investors’ interests.
Deep Seabed Mining in the Area: investment protection and the common heritage of mankind.
The international seabed’s designation as common heritage of mankind raises numerous fascinating legal issues. One crucial question is how to strike the correct balance between the protection of the private rights held by deep seabed mining operators and the achievement of the collective goals embodied in the CHM principle. Both imperatives are explicitly protected by UNCLOS and by general international law: they are to guide the regulatory action of the Authority and of sponsoring states. Nevertheless, it is very likely that, once the current phase of resource exploration will transition toward exploitation activities, there will be disputes between contractors and the Authority in respect of the latter’s decisions, actions, or inactions. Similar disputes may very well arise between contractors and their sponsoring states. For instance, sponsoring states may balk at continuing their sponsorship once a deep seabed mining operator decides to move onto exploitation activities. Alternatively, once exploitation activities prove to be successful, a sponsoring state may alter the legal framework to reap more sizeable benefits. Arguably, the high financial stakes inherent in deep seabed mining projects, the considerable environmental risks that are prospected, and the fact that the applicable legal regime is still incomplete, are elements which heighten the risk of such disputes.
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This article delves into the deep seabed mining regime under the United Nations Convention on the Law of the Sea (UNCLOS) with a view to inform the negotiating process of the proposed business and human rights (BHR) treaty. It highlights points of convergence and divergence between the two regulatory regimes and explores how the BHR treaty negotiations could draw from the deep seabed mining regime with regard to the responsibility and liability of states and corporations. In particular, it suggests that a BHR treaty could incorporate some of the arrangements of UNCLOS to address state obligations and direct corporate human rights obligations, both of a general and specific nature, including the obligation to carry out human rights due diligence. The article also proposes a mechanism of responsibility and liability of states and corporations under the future BHR treaty going beyond UNCLOS and embracing residual liability for home and/or host states.
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Since J. L. Mero published his seminal work: “The Mineral Resources of the Sea”, in 1965, there has been a growing interest in the exploitation of sea bed mineral resources. Research has indicated that the ocean floor contains vast quantities of valuable minerals, including tin, diamonds, silica sands, phosphorite, manganese nodules, cobalt-rich crusts, and seafloor massive sulphides. The sheer volume of these deposits is overwhelming, especially when compared with the land-based cache of the same resources. However, the development of an effective regime for the exploitation of these newfound metals has proved a difficult problem for the international community. Firstly, nations had long since, become used to the freedom of the high seas. Nevertheless, while the medieval freedom of the seas doctrine of Hugo Grotius would certainly lead to the overexploitation of sea bed resources which had taken millions of years to accumulate, it was nonetheless, advanced by the developed countries which had the technology and the wherewithal to undertake exploration activities subsea. On the other hand, Third World nations considered it necessary to conserve these exhaustible resources for the benefit of all peoples, including present and future generations of mankind. This led to the adoption of the Common Heritage of Mankind principle affirmed by earlier treaty systems on the outer space and the arctic region, and also the establishment of an international agency to manage sea bed resources for all nations. After many years of negotiation, the Law of the Sea Convention was adopted in 1982 to provide a comprehensive framework for the oceans. It is the world charter for the exploration and exploitation of ocean resources. Sea bed mining would invariably lead to the destruction of the marine ecosystem. The discussion also undertakes an analysis of the regime for the protection of the marine environment.
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Navigating Legal Waters: Deep sea mining and risks of exploitation prospects, 2023
Legal perspectives on Deep sea mining in areas within and beyond national jurisdiction, with a specific focus on sustainability, the concept and implementation of the blue economy, and associated legal risks for States and private actors. Article published in the online magazine "Sooo" published and distributed at the 2023 session Arendalsuka (the small Davos for Norway) to alert on deep sea mining associated risks for Norway.