International Investment Protection in Deep Seabed Mining Beyond National Jurisdiction

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 ◽  
United Nations Convention ◽  
International Seabed Authority ◽  
Deep Seabed Mining ◽  
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?

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.

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

2021 ◽  
pp. 45-67
Author(s):  
Joanna Dingwall
Keyword(s):  
Rare Earth ◽  
Rare Earth Elements ◽  
Continental Shelf ◽  
Mineral Resources ◽  
Mining Activities ◽  
National Jurisdiction ◽  
International Seabed Authority ◽  
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).

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.

scholarly journals Mining the Deep Seabed: Is Malaysia Ready?

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 ◽  
United Nations Convention ◽  
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.

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

2020 ◽  
Vol 75 (2) ◽  
pp. 139-150 ◽  
Author(s):  
Oscar Schmidt ◽  
Manuel Rivera
Keyword(s):  
Raw Materials ◽  
Legal Framework ◽  
Political Agenda ◽  
Negative Consequences ◽  
National Jurisdiction ◽  
International Seabed Authority ◽  
Fact Finding ◽  
Deep Seabed Mining ◽  
The 1960S ◽  
Seabed Mining

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.

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

2021 ◽  
pp. 103-149
Author(s):  
Joanna Dingwall
Keyword(s):  
Effective Control ◽  
Institutional Power ◽  
State Sponsorship ◽  
National Jurisdiction ◽  
International Seabed Authority ◽  
Deep Seabed Mining ◽  
Regulatory Flexibility ◽  
Institutional Architecture ◽  
Seabed Mining

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.

8 Environmental Regulation of Seabed Activities within and beyond National Jurisdiction

2017 ◽  
Author(s):  
Harrison James
Keyword(s):  
Environmental Protection ◽  
Legal Framework ◽  
Marine Environmental Protection ◽  
Future Challenges ◽  
National Jurisdiction ◽  
International Seabed Authority ◽  
Deep Seabed Mining ◽  
Seabed Mining ◽  
Marine Environmental

Chapter 8 considers the regulation of seabed activities within and beyond national jurisdiction. First, the legal framework for seabed activities within national jurisdiction is examined, highlighting the central role played by coastal States, the basic rules that apply by virtue of UNCLOS, and the opportunities for supplementary global or regional rules to improve marine environmental protection. The chapter undertakes a case study of the development of rules and standards relating to the hydrocarbon industry. The chapter then turns to the regulation of seabed activities beyond national jurisdiction. In this context, UNCLOS confers significant legislative and enforcement powers on the International Seabed Authority, which acts on behalf of the international community to regulate deep-seabed mining. The chapter analyses the way in which environmental protection has been integrated into Regulations to date, and discusses future challenges remaining in this respect.

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.

Investment Protection in Disputed Maritime Areas

2018 ◽  
Vol 19 (5-6) ◽  
pp. 828-859
Author(s):  
Peter Tzeng
Keyword(s):  
Dispute Settlement ◽  
Political Risk ◽  
International Investment ◽  
Joint Development ◽  
Investment Protection ◽  
International Investment Agreements ◽  
Protection Mechanisms ◽  
United Nations Convention ◽  
Risk Insurance ◽  
Investment Agreements

Abstract Disputed maritime areas are often sources of valuable natural resources, but they are also often sources of conflict. It is thus important for investors investing in such areas to know the array of investment protection mechanisms available to them. This article examines four such mechanisms (dispute settlement under international investment agreements (IIAs), dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS), dispute settlement under contracts, and political risk insurance) in the context of three scenarios of disputed maritime areas (unregulated areas, joint development areas, and provisionally delimited areas). It concludes that dispute settlement under IIAs and UNCLOS face significant obstacles not only on jurisdiction and admissibility, but also on the merits. As a result, the most practical solution for investors is to rely on dispute settlement under contracts or political risk insurance to protect their investments.

African States and Participation in Deep Seabed Mining: Problems and Prospects

2009 ◽  
Vol 24 (4) ◽  
pp. 683-712 ◽  
Author(s):  
Edwin Egede
Keyword(s):  
Law Of The Sea ◽  
Special Interests ◽  
National Jurisdiction ◽  
The Law ◽  
Deep Seabed Mining ◽  
Seabed Mining

AbstractThe Law of the Sea Convention requires that effective participation of developing States Parties in activities in the deep seabed beyond national jurisdiction (the Area) should be promoted having due regard to their special interests and needs (especially those of landlocked and geographically disadvantaged states). This article examines the difficulties in actual, direct and effective participation by African states in deep seabed mining and possible co-operative endeavours that African states may embark upon to overcome some of these constraints in order to advance the prospects of their actual, direct and effective participation in deep seabed mining.

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