International Laws Of The Sea – Part 14

Pursuant to the earlier topic of Introduction to Maritime Law in Malaysia, published on 22 February 2021, in the coming series the basis and elements of International Laws of The Sea, will be explored.

Legal status of the deep seabed and its resources

1. Evolution of the legal regime concerning the deep seabed and its resources

   Although it was known towards the end of the nineteenth century that the deep seabed could potentially be very rich in resources, this area came to prominence within the law of the sea only in the late 1960s.

   Way back on 13 March 1874, somewhere between Hawaii and Tahiti, the crew of the British research vessel HMS Challenger, on the first great oceanographic expedition of modern times, were reported to have hauled in from a depth of 15,600 feet a trawl containing the first known deposits of manganese nodules. Analysis of the samples some 20 years later showed the Pacific Ocean nodules to contain important metals, particularly nickel, copper and cobalt. Subsequent sampling confirmed that throughout the deep regions of the Pacific there existed huge deposits of nodules.

   The potential of these deposits as sources of nickel, copper and cobalt ore was finally appreciated soon after the Second World War. Consequently, between 1958 and 1968 numerous companies began serious prospecting of the nodule fields to estimate their economic potential. Concerned by the prospect of exploitation of the mineral resources of the deep seabed – hitherto part of the high seas and by definition belonging to all nations of the world – by a few developed and technologically advanced states, the UN General Assembly declared the resources of the seabed beyond the limits of national jurisdiction to be ‘the common heritage of mankind’ through a resolution in 1970. This Declaration also arguably stimulated the call for a new, comprehensive multilateral convention to be negotiated, thus heralding the Third UN Conference on the Law of the Sea (UNCLOS III), which convened regularly from 1973 to 1982 and itself ultimately yielded the 1982 Convention.

   For 12 ensuing years, and especially during much of UNCLOS III, negotiations centred on the ways and means of reaching common ground for the goal of conserving that common heritage and profiting from it at the same time. Even when the Convention on the Law of the Sea was eventually adopted in 1982 after so much hard work and diplomatic effort, some industrialised states were not fully satisfied with the provisions concerning the mining of the resources of the deep seabed and did not sign the Convention. They felt that Part XI of the Convention, which deals with mining of the deep ocean floor outside of nationally regulated ocean areas, in what is commonly known as the international seabed area, did not fully address many concerns that they had raised.

   It took another 16 years to negotiate an agreement to revise Part XI of the 1982 Convention to the satisfaction of these states. The UN Secretary-General initiated a series of informal consultations among states in order to resolve the areas of concern raised by certain industrialised states. The consultations successfully resulted, in July 1994, in an Agreement Related to the Implementation of Part XI of the Convention. It entered into force on 28 July 1996. The Agreement, which is part of the Convention, completed the work of developing a comprehensive legal regime for the exploitation, management and development of the resources of the deep seabed.

2. Legal status and definition

   The deep seabed area of the seas and oceans is termed the ‘Area’ in the 1982 Convention. According to Article 1 of the Convention, the term ‘Area’ means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. This Study Guide also uses this term to signify the deep seabed area beyond the limits of national jurisdiction. It is an area not only beyond the 12-mile territorial sea, but also beyond the 200-mile EEZ and the continental shelf, which in some cases may extend up to 350 miles or further.

   The Area and its resources are the common heritage of mankind. This means that no state can claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor can any state or natural or juridical person appropriate any part thereof. The 1982 Convention declares that no such claim or exercise of sovereignty or sovereign rights nor such appropriation will be recognised.

3. The Area as the common heritage of mankind

   Elaborating on the scope and meaning of the principle of the common heritage of mankind, Article 137 of the 1982 Convention states that all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the International Seabed Authority will act. These resources are not subject to alienation. The minerals recovered from the Area may be alienated only in accordance with the rules prescribed in Part XI of the Convention and the rules, regulations and procedures of the International Seabed Authority. No state or natural or juridical person can claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with the provisions outlined in Part XI of the Convention. Otherwise, no such claim, acquisition or exercise of rights will be recognised.

   Outlining the benefits to mankind flowing from the principle of the common heritage of mankind, Article 140 of the 1982 Convention states:

   Article 140

   Benefit of mankind

   1. Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status recognized by the United Nations in accordance with General Assembly resolution 1514 (XV) and other relevant General Assembly resolutions.
   2. The Authority shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis, in accordance with article 160, paragraph 2(f )(i).In a similar way to the high seas, the deep seabed is open to use exclusively for peaceful purposes by all states, whether coastal or land-locked, without discrimination and without prejudice to the other provisions of Part XI of the Convention. It should be noted here that what is meant by the term ‘peaceful purposes’ has been a controversial issue in international law. Different states have offered differing interpretations of the term, as the Convention itself provides no definition of it.

4. Other rights and duties of states in the deep seabed

   There are a number of provisions in the 1982 Convention that deal with the rights and legitimate interests of coastal states in the Area. Article 142 reads as follows:

   Article 142

   Rights and legitimate interests of coastal States

   1. Activities in the Area, with respect to resource deposits in the Area which lie across limits of national jurisdiction, shall be conducted with due regard to the rights and legitimate interests of any coastal State across whose jurisdiction such deposits lie.
   2. Consultations, including a system of prior notification, shall be maintained with the State concerned, with a view to avoiding infringement of such rights and interests. In cases where activities in the Area may result in the exploitation of resources lying within national jurisdiction, the prior consent of the coastal State concerned shall be required.
   3. Neither this Part nor any rights granted or exercised pursuant thereto shall affect the rights of coastal States to take such measures consistent with the relevant provisions of Part XII as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline, or related interests from pollution or threat thereof or from other hazardous occurrences resulting from or caused by any activities in the Area.

5. Exploitation regime

   Having established that the resources of the seabed beyond the limits of national jurisdiction are the common heritage of mankind, the 1982 Convention and the 1994 Agreement address the question of mining the deep seabed.

   During UNCLOS III most developed countries took the view that the mineral resources of the seabed should be commercially exploited by mining companies in consortia and that an international authority should grant licences to those companies. But developing countries objected to this view, stating that since the resources of the deep seabed were unique and belonged to the whole of mankind, the most appropriate way to benefit from them was for the international community to establish a public enterprise to mine the Area.

   Proposals during UNCLOS III ranged from a ‘weak’ international authority, noting claims and collecting fees, to a ‘strong’ one with exclusive rights to mine the common heritage Area, involving states or private groups only as it saw fit. Eventually, the agreed solution was a compromise designed to make possible both public and private enterprises on the one hand, and collective mining on the other – known as the so-called ‘parallel system’. Thus, the system established under the 1982 Convention is very complex. The 1994 Agreement on Part XI was concluded to simplify the system slightly. Under the existing regime of exploitation, mining activity in the deep seabed is administered by the International Seabed Authority, headquartered in Jamaica where the 1982 Convention was signed.

6. Environmental damage

   A further issue that has arisen in this context is the responsibility and liability for any environmental damage to the fragile ecosystems of the deep seabed Area. This was the subject of an Advisory Opinion request to the Seabed Disputes Chamber in 2011. The Chamber rendered an Advisory Opinion that emphasised the responsibility of the sponsoring states for their contractors mining in the deep seabed Area. However, the Chamber also acknowledged that when the states concerned are able to fulfil their due diligence requirements in relation to this responsibility then they might be exempted from liability, raising the question as to which entity – state party or contractor – would have the final liability over any environmental damage incurred.

7. Summary and conclusions

   One of the main achievements of UNCLOS III was the development of a comprehensive legal regime for the deep seabed. Starting from the 1970 Declaration of the UN declaring the ocean floor and its resources as the common heritage of mankind, UNCLOS III defined the status of the deep seabed in international law and outlined the nature of this area as the common heritage of mankind. Once the underlying principle – that the Area was the common heritage of mankind – was accepted, all other provisions concerning the exploitation, management and development of the resources of the seabed flowed from it. Indeed, within a relatively short period of time this principle came to be accepted widely as part of customary international law, binding on all states.

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This article is written by our Principal Associate, Chakaravarthi