Deep Sea Mining – The challenge of organising jurisdiction

Deep sea mining in recent times has emerged from the somewhat tucked-away place it occupies in Part XI of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

To date, 24 licences have been granted by the International Seabed Authority for the exploration (not exploitation) of certain defined zones located in international waters. Most of these contracts relate to exploration work regarding polymetallic nodules situated in the so-called Clarion-Clipperton Fracture Zone in the Mid-Atlantic Ocean. Contractors must be a State Party of UNCLOS or an entity sponsored by a State Party.

Areas

In UNCLOS terminology, the seabed area (including the subsoil) beyond national jurisdiction, i.e. beyond a country’s exclusive economic zone (or extended continental shelf), is called the “Area”.

Deep sea mining activities in the Area are highly controversial in view of the potential for environmental damage which these activities entail. This is why pursuant to UNCLOS the Area and its resources are the “common heritage of mankind”, with mining activities in the Area being subject to the authorisation and supervision of the International Seabed Authority, a body created by UNCLOS for this purpose.

Deep sea mining poses formidable technological challenges and raises many novel legal issues.

One of these legal issues is whether a single forum for the resolution of disputes relating to activities in the Area can be established.

The model Exploitation Contract currently envisaged by the draft Exploitation Regulations provides that exploitation disputes between a contractor and the International Seabed Authority shall be settled in accordance with UNCLOS Part XI, Section 5. Thus disputes would be referable to the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS), or to commercial arbitration, within the scheme of Section 5. However, this jurisdiction is not all-embracing. What about disputes, e.g. with a coastal state or other contractors, in connection with the exploitation of seabed minerals? As part of the consultation process regarding the draft Exploitation Regulations, the International Seabed Authority will be considering whether it is appropriate to make all those involved in activities in the Area subject to a unified dispute settlement jurisdiction. If this could include all coastal states to the extent that these are UNCLOS State parties, so much the better.

A unified set of jurisdictional rules will promote the development of a consistent body of law in this novel area where so much is at stake.

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