Introduction

Private Corporations ◽

Deep Seabed Mining ◽

The introduction provides an initial account of the deep seabed beyond national jurisdiction and its mineral resources, addressing the impetus towards commercialisation of this area and the increasing role of private corporations therein. It offers a summary of the key features of the deep seabed mining regime in the United Nations Convention on the Law of the Sea (UNCLOS). It introduces the important role of the International Seabed Authority (ISA) within the UNCLOS regime as custodian, regulator and enforcer, including through development of the Mining Code. The introduction explains the purposes of the study and provides an outline of its scope. It addresses the reasons why the success or otherwise of private-sector involvement may have some bearing on the future feasibility of the deep seabed mining industry and the implications that this may have for the common heritage.

International Investment Protection in Deep Seabed Mining Beyond National Jurisdiction

The Journal of World Investment & Trade ◽

10.1163/22119000-12340114 ◽

2018 ◽

Vol 19 (5-6) ◽

pp. 890-929

Author(s):

Joanna Dingwall

Keyword(s):

Mineral Resources ◽

International Investment ◽

Investment Protection ◽

Valuable Metals ◽

Exploratory Stage ◽

National Jurisdiction ◽

Deep Seabed Mining ◽

Abstract The deep seabed beyond national jurisdiction comprises almost three-quarters of the entire surface area of our oceans. It boasts an array of mineral resources, including valuable metals and rare earth elements. Acting under the United Nations Convention on the Law of the Sea, the International Seabed Authority is responsible for regulating this area and granting mining contracts to allow investors to explore for and exploit deep seabed minerals. As yet, deep seabed mining activities have been confined to the exploratory stage. However, recently, there has been a marked growth in deep seabed investment by private corporate actors. As technology advances and commercial appetite increases, extraction of deep seabed minerals may soon commence. In this context, this article seeks to address crucial legal issues facing pioneers of deep seabed mining. What is the extent of investment protection within the existing regime? And are there dispute resolution options to enforce such protection?

Concluding Remarks on Corporate Entity Involvement in Deep Seabed Mining

10.1093/oso/9780192898265.003.0009 ◽

2021 ◽

pp. 269-274

Author(s):

Joanna Dingwall

Keyword(s):

Regulatory Regime ◽

Mining Operations ◽

Common Heritage ◽

The Common ◽

Deep Seabed Mining ◽

Seabed Mining ◽

The Impact ◽

Marine Environmental

The conclusion addresses the findings reached throughout this study on the role of private corporate actors in the deep seabed mining regime under the United Nations Convention on the Law of the Sea (UNCLOS) and the impact of this upon realisation of the common heritage of mankind. It notes that the ISA is facing significant challenges in devising a workable payment mechanism that will deliver tangible benefits to humanity, while also ensuring sufficient marine environmental protections. The regime’s achievement of the common heritage will be dependent on the regulatory regime of the International Seabed Authority (ISA) fulfilling its potential, and implementing a comprehensive Mining Code to govern the life cycle of deep seabed mining operations. The study concludes by finding that, on balance, the regime is developing in a manner that may render it capable of realising its common heritage goals of securing communitarian benefits to humanity, alongside market-focused objectives. It also concludes that corporate participation may assist in achievement of the common heritage, to the extent that it may provide the commercial means for deep seabed mining to commence.

The Deep Seabed beyond National Jurisdiction and the Rise of Mining Activities within it by Non-state Actors

10.1093/oso/9780192898265.003.0003 ◽

2021 ◽

pp. 45-67

Author(s):

Joanna Dingwall

Keyword(s):

Rare Earth ◽

Rare Earth Elements ◽

Continental Shelf ◽

Mineral Resources ◽

Mining Activities ◽

National Jurisdiction ◽

Deep Seabed Mining ◽

Seabed Mining ◽

Technological Analysis

Chapter 2 addresses the importance of the deep seabed beyond national jurisdiction and charts the rise in mining activities within it, drawing on scientific, geological and technological analysis, where appropriate, to place deep seabed mining in its broader context. In order to do so, Chapter 2 assesses the scope of the deep seabed beyond national jurisdiction (in contrast to the maritime zones under national jurisdiction, including the continental shelf). The chapter then examines the types of mineral resources that the deep seabed contains (including the potential for rare earth elements). Thereafter, the chapter explores the likely viability of deep seabed mining, both in terms of its impact on the marine environment, and in light of technological challenges and market prospects. Chapter 2 also provides an overview of the current extent of mining activities authorised by the International Seabed Authority (ISA).

Common Management through Institutional Architecture – What is the Scope of the UNCLOS Deep Seabed Mining Regime and the Role of the ISA within it?

10.1093/oso/9780192898265.003.0005 ◽

2021 ◽

pp. 103-149

Author(s):

Joanna Dingwall

Keyword(s):

Effective Control ◽

Institutional Power ◽

State Sponsorship ◽

National Jurisdiction ◽

Deep Seabed Mining ◽

Regulatory Flexibility ◽

Institutional Architecture ◽

Chapter 4 evaluates the role of common management in securing a common heritage framework for deep seabed mining beyond national jurisdiction (in the Area). To this end, Chapter 4 assesses the common management system for deep seabed mining within the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS provides a system of common rules applicable to the Area, together with the regulatory flexibility for this system to be developed and enforced, in practice, by a unique, unprecedented form of institutional power, wielded by the International Seabed Authority (ISA). The chapter includes analysis of the ISA’s progress towards development of the Mining Code, and the functioning of its contract-based licensing process, in practice. Chapter 4 addresses the means by which corporations may become participants in the regime (through state sponsorship, nationality and effective control requirements) and the extent to which the regime filters down to apply to them directly.

Preventing Unilateral Deep Seabed Mining Activities – To What Extent Does the UNCLOS Regime Constrain External Actors?

10.1093/oso/9780192898265.003.0006 ◽

2021 ◽

pp. 150-196

Author(s):

Joanna Dingwall

Keyword(s):

Customary Law ◽

Mining Activities ◽

The Status ◽

State Obligations ◽

The Common ◽

Deep Seabed Mining ◽

External Actors ◽

Chapter 5 determines whether the common heritage prohibition of unilateral mining activities in the United Nations Convention on the Law of the Sea (UNCLOS) prevents external actors from undertaking deep seabed mining activities unilaterally. In order to ascertain whether this prohibition binds corporate actors outside of UNCLOS, this chapter determines whether the procedural reach of UNCLOS extends to include non-States Parties and their nationals. It does so by considering, firstly, the reach of the regime as a matter of treaty law, including by assessing whether UNCLOS imposes third state obligations or creates an objective regime in relation to deep seabed mining. It also evaluates the status of the regime under customary law, with particular consideration of US practice and the role of the persistent objector doctrine. Finally, it addresses the extent to which the regime imposes direct obligations upon external corporate actors in the form of corporate obligations.

Mining the Deep Seabed: Is Malaysia Ready?

Asian Social Science ◽

10.5539/ass.v13n2p107 ◽

2017 ◽

Vol 13 (2) ◽

pp. 107

Author(s):

Nik Munirah Nik Fuad ◽

Wan Izatul Asma Wan Talaat ◽

Mohd Hazmi Mohd Rusli

Keyword(s):

Marine Environment ◽

Biological Diversity ◽

Mineral Resources ◽

State Party ◽

High Concentration ◽

National Jurisdiction ◽

Deep Seabed Mining ◽

Seabed Mining ◽

Mining Exploration

The mineral industry is expanding fast coinciding with the increase in demands. The depleting land-based minerals has led to the seeking of mineral resources especially from deep sea. Deep seabed minerals have high concentration of precious metal in comparison to land-based minerals. A lot of countries have started to explore and exploit the deep seabed minerals. Thus, it is necessary for Malaysia to commence on deep seabed mining exploration to reap its economic and technological benefits. Similarly, like land mining, the marine environment will face environmental degradation from deep seabed mining exploration. Being a State-party to the United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982) and Convention of Biological Diversity 1994 (CBD), Malaysia has yet to develop a set of policies, regulations and laws related to deep seabed mining to mitigate its effect to the marine environment coinciding to the requirements of these conventions. The purpose of this study is to explore the preparedness of Malaysia to embark on exploration of deep seabed mining in areas beyond the national jurisdiction while observing the effects of deep seabed mining to the marine environment. The challenges in exploring the deep seabed mining as well as the relevant international and national laws related to deep seabed mining will also be observed in this study.

The Role of the Common Heritage Concept in Deep Seabed Mining

10.1093/oso/9780192898265.003.0004 ◽

2021 ◽

pp. 68-100

Author(s):

Joanna Dingwall

Keyword(s):

Outer Space ◽

International Economic Order ◽

Vital Role ◽

Benefit Sharing ◽

Common Heritage ◽

Marine Environmental Protection ◽

The Common ◽

Deep Seabed Mining ◽

Chapter 3 evaluates the vital role of the common heritage in the deep seabed mining context. It does so by considering the historical application of the common heritage concept to deep seabed mining, together with the broader role of the concept within international law, including in relation to outer space and other global commons. Chapter 3 addresses the UNCLOS III negotiations, and the emergence of the common heritage approach to deep seabed mining as part of the movement for a New International Economic Order (NIEO), as well as the modifications achieved by the Agreement on the Implementation of Part XI of UNCLOS. This chapter distils the common heritage into its modern-day components in the deep seabed mining context, namely: common management, prohibition of unilateral mining activities, benefit sharing, marine environmental protection and the achievement of a balance between communitarian and capitalist concerns. It also sets out the study’s framework of analysis.

Balancing Community and Autonomy – To What Extent Does the Regime Reconcile ISA Regulatory Authority and Investment Protection for Corporate Actors?

10.1093/oso/9780192898265.003.0008 ◽

2021 ◽

pp. 235-268

Author(s):

Joanna Dingwall

Keyword(s):

International Investment ◽

International Investment Law ◽

Investment Protection ◽

Common Heritage ◽

Commercial Viability ◽

The Common ◽

Corporate Investors ◽

Deep Seabed Mining ◽

Chapter 7 assesses the extent to which the deep seabed mining regime in the United Nations Convention on the Law of the Sea (UNCLOS), as developed and enforced by the International Seabed Authority (ISA), strikes an appropriate balance between the dual common heritage goals of community and autonomy. Chapter 7 focuses on reconciling the ISA’s right to regulate on behalf of humanity with investment protection rights for deep seabed miners. It considers whether the UNCLOS deep seabed mining regime incorporates protections that are functionally equivalent to international investment law rights, backed by binding dispute resolution options. These are crucial considerations for corporate investors, and may influence the commercial viability of the regime. Chapter 7 then evaluates whether such investment protection rights may be balanced alongside the ISA’s right to regulate concerning the communitarian aspects of the common heritage, thereby achieving an overall balance between community and autonomy within the regime.

No people, no problem – narrativity, conflict, and justice in debates on deep-seabed mining

Geographica Helvetica ◽

10.5194/gh-75-139-2020 ◽

2020 ◽

Vol 75 (2) ◽

pp. 139-150 ◽

Cited By ~ 1

Author(s):

Oscar Schmidt ◽

Manuel Rivera

Keyword(s):

Raw Materials ◽

Legal Framework ◽

Political Agenda ◽

Negative Consequences ◽

National Jurisdiction ◽

Fact Finding ◽

Deep Seabed Mining ◽

The 1960S ◽

Abstract. While the idea of extracting deep-seabed resources dates back to as early as the 1960s, it remained pure fiction for decades due to limited technical possibilities and prohibitive costs. In recent years, against the backdrop of changing technical possibilities and a persistently high demand for raw materials, deep-seabed mining (DSM) has returned to the international political agenda. While numerous fact-finding missions engage in mapping the ocean's resources and public–private partnerships prepare to make an active engagement in mining the seabed, the International Seabed Authority (ISA) is entrusted with the development of a legal framework for possible future mining in accordance with the requirements defined under the UN Convention on the Law of the Sea (UNCLOS). The preparations for DSM are accompanied and ultimately shaped by a discourse on possible opportunities and risks of mining the deep seabed. The paper at hand traces dominant discursive positions and their narrative structures as a way of explaining the relative success or failure of DSM proponents who speak in favor of mining the seabed and DSM critics who warn against its striking environmental impacts and inestimable risks. We proceed from the observation that the historic discourse on the deep sea beyond national jurisdiction was rooted in what we call “narratives of promise” regarding global procedural and distributive justice, environmental health, and peaceful international cooperation. Our findings show how in today's debates the theme of global marine justice, which dominated the historic DSM discourse, is close to a “nonstory”. DSM is commonly narrated as a merely technocratic and apolitical process that appears to be free of social and environmental conflict. We conclude by arguing that to arrive at more successful critical narratives on DSM will require more pronounced depictions of the negative consequences in particular for humans, exposing the “politics” in DSM policy making and developing more competitive stories on alternatives to DSM.

The International Seabed Authority and the Enterprise: How Africa is reinvigorating the principle of the common heritage of mankind

Journal of Ocean Governance in Africa (iilwandle zethu) ◽

10.47348/joga/2021/a1 ◽

2021 ◽

Vol 2021 ◽

pp. 1-37

Author(s):

Mehdi Remaoun

Keyword(s):

Marine Biodiversity ◽

Common Heritage ◽

Common Heritage Of Mankind ◽

The Status ◽

National Jurisdiction ◽

African Group ◽

The Common ◽

Deep Seabed Mining ◽

The Impact

This article focuses primarily on a submission made by the African Group of States to the International Seabed Authority (ISA) on the operationalisation of the Enterprise. The latter is one of the organs established under Part XI of the 1982 United Nations Convention on the Law of the Sea (LOSC) and guided by the principle of the common heritage of mankind (CHM). Following several years of the status quo remaining unchanged, the start of the development of the exploitation regulations for deep seabed mining has led to louder calls to operationalise the Enterprise. This article first outlines the origins and legal foundations of the concept ‘Enterprise’. This is followed by discussions on the status of this organ prior to the African Group’s submission, the main elements contained in the submission as well as the reactions to, and the impact of, the submission. Beyond the issue of the Enterprise, this article also considers other attempts of the African Group to give full effect to the CHM principle in the ISA as well as the Group’s attempts to enshrine the CHM principle in a potential third LOSC implementing agreement on marine biodiversity beyond national jurisdiction. It concludes with critical observations that put the various aspects discussed into perspective.