The Ocean Constitution

As national claims to ocean space proliferated, diplomats tried to set new rules for the oceans. The idea of the oceans as humanity’s “common heritage” gained support as an alternative to freedom of the seas. The negotiations featured divisions between the leading maritime powers, who were most concerned about preserving open access to the oceans, and many coastal countries more concerned with protecting regional waters. The diplomats eventually crafted an elaborate compromise that expanded the territorial sea to 12 miles and created a large new economic zone within which coastal states would have the right to regulate marine resources. A host of other provisions dealt with questions including passage through international straits, regulation of ice-covered areas, and the ocean rights of archipelagic countries. The United States, the leading maritime power, ultimately turned against the agreement, primarily because of concerns about how the treaty would regulate seabed mining.

System Under Strain

Seabed mining became more active as companies invested in technologies to harvest valuable minerals. Momentum toward commercial mining would test directly the idea of international control of ocean space. The industry’s prospects also revived attention to whether the United States might join the Convention, and the Obama administration pushed to secure ratification. That effort failed, mostly because of conservative concerns about the internationalization of the seabed. Washington’s continued refusal to join the Convention created a complicated situation in which the leading maritime power claimed to defend maritime rules but was outside the Convention. From inside the Convention, China and Russia both challenged maritime rules. Both countries rejected international rulings critical of their maritime behavior. Despite an international ruling, China continued its efforts to secure special rights in the South China Sea, and the United States responded by increasing its naval activities in the area and conducting more freedom of navigation operations.

Jockeying for Position

The Falklands War was a reminder that naval conflict could mean massive restrictions on the use of the oceans. Meanwhile, few Western countries ratified the Convention in the decade after it was finalized. With the Convention stalled, the United States conducted “freedom of navigation” operations to ensure that countries did not claim more of the oceans than Washington thought legal. US operations led to a clash with Libya and a confrontation with the Soviet Union. Other countries focused on sharpening claims to islands, which could give governments rights to nearby waters. At the same time, pressure grew on countries to grapple with overfishing. The costs of unrestricted high-seas fishing became evident in the Bering Sea, where a multinational fleet exhausted fish stocks. The thawing of the Cold War led to diplomatic breakthroughs on both high-seas fishing and seabed mining, paving the way for large-scale ratifications of the Convention.

Navigating Environmental Approval Pathways for Deep Seabed Mining Projects in Areas Beyond National Jurisdiction (the Area)

Deep-seabed mining (DSM) is a developing industry with high potential to help meet the metal demand for the transition to a renewable energy world. No DSM projects have yet received environmental approval, although several are in progress, following the Environmental and Social Impact Assessment (ESIA) process that has been developed and widely applied for projects in national jurisdictions. Currently, the International Seabed Authority's (ISA) regulations, standards, and guidelines for mineral exploitation of seabed minerals in the Areas Beyond National Jurisdiction (the Area) are in draft form. Proponents are guided in their ESIA studies by the ISA's Recommendations for the Guidance of Contractors for the Assessment of the Possible Environmental Impacts Arising From Exploration for Marine Minerals in the Area and are proceeding in expectation that the currently draft regulations will be finalized by the time an environmental impact statement can be submitted. This paper discusses the pathways leading to environmental assessment and approvals, comparing the processes in national jurisdictions with those for projects in the Area.

Potential impacts of polymetallic nodule removal on deep-sea meiofauna

Deep seabed mining is potentially imminent in the Clarion Clipperton Fracture Zone (CCFZ; northeast Pacific). Seabed collectors will remove polymetallic nodules and the surrounding surface sediments, both inhabited by meiofauna, along their path. To determine potential impacts of polymetallic nodule removal, we investigated the importance of nodule presence for the abundance, composition and diversity of sediment meiofauna, and evaluated the existence and composition of nodule crevice meiofauna in the Global Sea Mineral Resources (GSR) exploration contract area. Nodule-free and nodule-rich sediments displayed high biodiversity with many singletons and doubletons, potentially representing rare taxa. Nodule presence negatively influenced sediment meiofaunal abundances but did not markedly affect taxonomic composition or diversity. This is the first report on CCFZ nodule crevice meiofauna, whose abundance related positively to nodule dimensions. Though dominated by the same taxa, nodules and sediments differed regarding the taxonomic and trophic composition of the meio- and nematofauna. Nevertheless, there were no taxa endemic to the nodule crevices and nodule crevice meiofauna added only little to total small-scale (~ cm) meiofaunal abundance and diversity. We formulated environmental management recommendations at the contract area and regional (CCFZ) scale related to sampling effort, set-aside preservation and monitoring areas, and potential rehabilitation measures.

Potential Contribution of Sponsoring State and Its National Legislation to the Deep Seabed Mining Regime

Companies and legal persons intending to conduct activities in the Area must be sponsored by a State Party of the UNCLOS, which constitute a “dual-track mechanism” with ISA as a primary regulator and sponsoring state as a secondary regulator. This regime setting places companies and legal persons subject to international and national legislation simultaneously. The sponsoring state’s national legislation is thus an integrated part of the DSM regime. This resolves the defects that private entities in DSM are not subject to international law and weak enforcement of international organizations. However, UNCLOS neither draws a clear line of competence between the sponsoring state and the ISA nor provides compulsory components that national legislation should contain, resulting in the disparity between the objective of the establishment of sponsorship and the status quo of the sponsoring state’s role and its national legislation. This paper analyzes the competence of a sponsoring state and regulatory aspects it should focus on to assist the ISA and further proposes such components of the national legislation contributing to the DSM regime.