The Role of the Common Heritage Concept in Deep Seabed Mining

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 ◽  
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.

International Law and Corporate Actors in Deep Seabed Mining

2021 ◽  
Author(s):  
Joanna Dingwall
Keyword(s):  
International Law ◽  
Benefit Sharing ◽  
Commercial Activity ◽  
Investment Protection ◽  
Common Heritage ◽  
Common Heritage Of Mankind ◽  
The Common ◽  
Deep Seabed Mining ◽  
Seabed Mining

Corporate participation within deep seabed mining raises unique challenges for international law. Commercial investment by private corporate actors in deep seabed mining is increasing. The deep seabed beyond national jurisdiction (the Area) comprises almost three-quarters of the entire surface area of the oceans, and it is home to an array of prized commodities including valuable metals and rare earth elements. These resources constitute the common heritage of mankind. Acting under the United Nations Convention on the Law of the Sea (UNCLOS), the International Seabed Authority (ISA) is responsible for regulating the Area for the benefit of humanity and granting mining contracts. Although mining activities in the Area remain at the exploration stage, in recent years, there has been a marked growth in investment by private corporate actors, and an increasing impetus towards exploitation. This increasing corporate activity presents challenges, including in relation to matters of common management, benefit sharing, marine environmental protection and investment protection. In part, these challenges stem from the often-contentious role of non-state actors, such as corporations, within the international legal system. A product of its history, the UNCLOS deep seabed regime is an unlikely hybrid of capitalist and communist values, embracing the role of private actors while enshrining principles of resource distribution. As technological advances begin to outstrip legal developments, this study advances the discourse by addressing the extent of any tension between corporate commercial activity in the Area and the achievement of the common heritage of mankind.

Concluding Remarks on Corporate Entity Involvement in Deep Seabed Mining

2021 ◽  
pp. 269-274
Author(s):  
Joanna Dingwall
Keyword(s):  
Regulatory Regime ◽  
Mining Operations ◽  
Common Heritage ◽  
The Common ◽  
International Seabed Authority ◽  
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.

Does the Regime Secure the Common Heritage’s Benefit-sharing and Marine Environmental Protection Components?

2021 ◽  
pp. 199-234
Author(s):  
Joanna Dingwall
Keyword(s):  
Environmental Protection ◽  
Benefit Sharing ◽  
Common Heritage ◽  
Marine Environmental Protection ◽  
National Jurisdiction ◽  
The Face ◽  
The Common ◽  
International Seabed Authority ◽  
Deep Seabed Mining ◽  
Marine Environmental

Chapter 6 considers whether the continuing development by the International Seabed Authority (ISA) of the regulatory framework for deep seabed mining beyond national jurisdiction is on course to secure the common heritage’s main material components of benefit sharing and marine environmental protection, in the face of increasing corporate activity. It addresses the emerging regulatory regime provided in the Draft Exploitation Regulations in relation to the planned payment mechanism and the protection of the marine environment. As Chapter 6 explains, a key measure of the regime’s ability to secure the common heritage in these respects will be the extent to which it retains regulatory flexibility to adapt to new challenges. Chapter 6 also considers the existing framework for implementation, responsibility and enforcement, as underpinned by binding dispute resolution options. It concludes by assessing the position of corporate actors in terms of each of these aspects, as robust implementation options will be vital for achievement of the common heritage.

Sharing the Riches of the Sea: The Redistributive and Fiscal Dimension of Deep Seabed Exploitation

2019 ◽  
Vol 30 (2) ◽  
pp. 601-633 ◽  
Author(s):  
Isabel Feichtner
Keyword(s):  
Public Interest ◽  
Raw Materials ◽  
Benefit Sharing ◽  
Revenue Generation ◽  
Stakeholder Orientation ◽  
Common Heritage ◽  
Economic Exploitation ◽  
The Law ◽  
Deep Seabed Mining ◽  
Seabed Mining

Abstract This article seeks to clarify how the principle of common heritage is being implemented and concretized by the fiscal regime of deep seabed mining. It first explicates the exploitation rationale underlying the common heritage principle. It argues that common heritage is a jurisdictional principle that lays the basis for the international allocation and administration of exploitation rights and, thus, for the effective economic exploitation of seabed minerals. This exploitation bias is strengthened by the perceived remoteness of deep seabed mining and the real institutional disembeddedness of the International Seabed Authority (ISA). To better understand the distribution conflicts that the law of deep seabed mining addresses, the article introduces two (competing) sets of public interest objectives: participation in exploitation and revenue generation pursued by newly independent (and, today, developing) states and access to raw materials pursued by industrialized states. The article then focuses on the different ways in which the 1982 United Nations Convention on the Law of the Sea and the 1994 Agreement on the Implementation of Part XI promote, reconcile and detract from the identified public interest objectives. It reveals how the participation objective has given way to a focus on market supply and revenue generation, and how the changes of the 1994 Implementation Agreement may be read as an attempt to dissolve the conflict between these competing public interest objectives, and to depoliticize the seabed regime. Third, the article turns to the ongoing work on a mining code for the deep seabed that, inter alia, must implement the ISA’s mandates to generate revenue from deep seabed mining and to redistribute this revenue. It shows how the ISA’s adoption of an individualist stakeholder orientation and its deference to commercial expectations of profitability, in the context of growing political attention to the oceans as a source of economic growth, are further transforming the notion of common heritage and benefit sharing and concomitantly undermine the regime’s redistributive ambitions. It also clarifies how the sponsorship of deep seabed mining by small Pacific island states holds only little promise of significant public revenue generation for these states, but may work to undermine solidarity among developing states. The article ends with a call on international lawyers to recognize the designing of a mining code for the deep seabed as the making of political economy.

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

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 ◽  
International Seabed Authority ◽  
Deep Seabed Mining ◽  
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.

Introduction

2021 ◽  
pp. 1-10
Author(s):  
Joanna Dingwall
Keyword(s):  
Mining Industry ◽  
Mineral Resources ◽  
National Jurisdiction ◽  
The Common ◽  
United Nations Convention ◽  
Private Corporations ◽  
International Seabed Authority ◽  
Deep Seabed Mining ◽  
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.

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

2021 ◽  
pp. 150-196
Author(s):  
Joanna Dingwall
Keyword(s):  
Customary Law ◽  
Mining Activities ◽  
The Status ◽  
State Obligations ◽  
The Common ◽  
United Nations Convention ◽  
Deep Seabed Mining ◽  
External Actors ◽  
Seabed Mining

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.

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