UNCLOS III and the struggle for law: The elusive customary law of seabed mining (original) (raw)
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Business and Human Rights Journal
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.
Bridging the Business and Human Rights Divide with Lessons from UNCLOS’ Deep Sea Mining Regime
Juan Carlos Sainz-Borgo et al (eds), Liber Amicorum In Honour of a Modern Renaissance Man, His Excellency Gudmundur Eiriksson, University for Peace Press/OP Jindal/Universal Law Publishing, 2017, 2016
The norms that govern international economic law have for decades been criticised by the Third World for favouring the interests of western Industrialised Powers to the detriment of Third World peoples and their states. Among the contested issues is whether the very structure of international law facilitates this skewed situation, in matters such as accountability abeyances of business entities for human rights violations and the clash of state obligations under international human rights and international economic law. The United Nations Convention on the Law of the Sea (UNCLOS) regulates matters that undoubtedly affect critical economic interests of states. It is lauded for having, through tortured negotiations (1973-82, 90-94), arrived at far more equalising standards between established maritime powers and economically weaker Third World states. The UNCLOS deep sea mining regime was so contested that it delayed UNCLOS’ acceptance among established economic powers for over a deca...
International Law and the Regulation of Deep Sea Bed Mining
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.
Seabed resources and international law
Resources Policy, 1977
This article outlines the problems related to the exploitation and allocation of undersea resources. The nature and accessibility of undersea petroleum supplies and metalliferous nodules are described in terms of the existing and prospective future economic constraints. Since the majority of such resources lie outside national jurisdictions, their ownership has recently become a major source of international conflict. The character of that conflict is explained, and the prospective solutions under international law are identified. Unilateral action on the part of countries possessing the requisite technologies to exploit these resources is viewed as the most probable near-term outlook, even though it may not satisfy very many aspects of international equity.
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The author wishes to express his appreciation to Professor Louis B. Sohn of the University of Georgia, School of Law, for his valuable comment on the article.. The Third U.N. Convention on the Law of the Sea, U.N. Serial No.8355, U.N. Sales No. E.93N.5. 2 A regime is a social institution comprising a set of principles, norms, rules and decision-making procedures around which actors' expectations converge in a given issuearea in international relations. For further elaboration of the meaning of regime, see INTERNATIONAL ORGANIZATION 36 (S. Krasner ed. 1982) and R. KEOPHANE and J. NYE, POWER AND INTERDEPENDENCE (1989).
INTERNATIONAL LAW OF THE SEA; A BLEND OF LAW, POLITICS AND ECONOMICS
The Law of the Sea reflects the competing interests of Nations over the resources of the oceans since humanity first set forth upon the seas. The sovereign control over the oceans has been an ongoing concern prior to the 20th century under the concept of Mare Liberium and Mare Clausum. This principles developed and limited national rights and jurisdiction over a narrow band of water along a nations’ coast, with the rest of the sea free to all and belonging to none. With the technological developments of the 21st century which allows the exploitation of ocean resources that had never before been envisioned and accessible, there was a need to preserve the High Seas with its unimaginable rich resources as the common Heritage of Mankind. Nations began to negotiate their interests in the oceans and a universal regime known as UNCLOS III was agreed upon. These events display the fine blend of applied international law, politics and selfish economic interests as related in notable decisions of the ICJ. Today, there are new issues to be dealt with starting with pollution, the inevitable and intensive exploitation of high seas in the face of the 1994 Implementation Agreement, increasing jurisdictional claims amongst others. This research work analyses the making of UNCLOS III, dispute settlement mechanism, sustainable use of the oceans and the Nigerian Maritime Sector. This research work concludes with the arguments whether or not UNCLOS III has come to stay as the world legal order on the sea and proffer recommendations.
Ahmad Ibrahim Kulliyyah of Laws International Islamic University Malaysia, 2017
The successful resolution of maritime disputes is intertwined with the development of an international legal regime concerning the ocean's affairs. Transforming attention from earth-based reserve wealth to the mineral resources of the seabed is a growing trend and a great concern of the global community. International Seabed Authority, on behalf of all, is empowered to organize, carried out, and controlled the activities in the Area. The current article examined the legal responsibilities, liabilities, and compliance of the concerned entities regarding exploration and exploitation of recourse in the Area. It further explores the jurisdiction and scope of the International Seabed Authority (ISA) and Seabed dispute Chamber (SDC) of International Tribunal for Law of the Sea (ITLOS) for resolving existing potential conflicts in the Area between and among the individual, entities sponsored by the government in terms of interpretation and application of the relevant rules under the Sea Convention and other related agreements. Finally, the aim of the research is to highlight the specific role and competency of the Seabed Disputes Chamber for upholding the benefit of all mankind. The finding of the article is that the SDC made a significant contribution by adopting several regulations and advisory opinions with the cooperation of other organs of the ISA. However, in order to carry out this research, the author consults with the relevant international conventions and their application in resolving maritime disputes relating to the Area under international tribunals and SDC. The researcher further furnishes the information from published scholarly books and articles in the library and from online resources.
Earth Negotiations Bulletin, 2019
A Brief History of the Law of the Sea and the ICP On 1 November 1967, Malta’s Ambassador to the UN, Arvid Pardo, asked the nations of the world to recognize a looming conflict that could devastate the oceans. In a speech to the UN General Assembly (UNGA), he called for “an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction.” The speech set in motion a process that spanned 15 years and saw: the creation of the UN Seabed Committee; the signing of a treaty banning the emplacement of nuclear weapons on the seabed; the adoption of a UNGA declaration that all resources of the seabed beyond the limits of national jurisdiction are the “common heritage of mankind”; and the convening of the Stockholm Conference on the Human Environment. These were some of the factors that led to the Third UN Conference on the Law of the Sea during which UN Convention on the Law of the Sea (UNCLOS) was adopted. UNCLOS: Opened for signature on 10 December 1982 in Montego Bay, Jamaica, at the Third UN Conference on the Law of the Sea, UNCLOS sets forth the rights and obligations of states regarding the use of the oceans, their resources, and the protection of the marine and coastal environment. UNCLOS entered into force on 16 November 1994, and is supplemented by the 1994 Deep Seabed Mining Agreement and the 1995 Agreement for the Implementation of the Provisions of UNCLOS relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.
The International Journal of Marine and Coastal Law, 2011
In February 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea handed down its Advisory Opinion in Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area. Although primarily focused on governance of the deep seabed beyond national jurisdiction (‘the Area’), the Opinion has wider relevance for both international environmental law and general international law. More specifically, although sustainable development is not directly referenced in the Opinion, this article argues that it goes a long way towards strengthening many of the emerging normative rules associated with it. Using the International Law Association’s 2002 New Delhi Declaration of Principles of International Law relating to Sustainable Development as a framework, this article specifically analyses the Advisory Opinion’s contribution to the sustainable use of natural resources, the precautionary approach, common but differentia...