Introduction
The law on deep sea mining is still under development. Since the end of the 1960s, substantial amounts of coveted minerals such as copper, tin, manganese, cobalt and, rare earths, frequently coalesced in up to fist-sized balls (“manganese nodules”) have been found in many parts of the deep seabed (i.e. at depths of around 4,000 – 5,000 m). Later on, poly-metallic sulfides have been discovered at submarine hot vents, and ferro-manganese crusts at the sides of submarine volcanoes. Awareness of the finite nature of land-based resources of these minerals as well as political tensions in some of their countries of origin led to considerations about commercial exploitaition of the deep seabed. With principles on a deep seabed régime laid down in the UN Convention on the Law of the Sea, many detailed regulations e.g. regarding commercial mining of the minerals are still pending.
The deep seabed is defined as the seafloor, and subsoil thereof, beyond continental slopes and national jurisdiction. It was declared “Common Heritage of Mankind” – not least due to the influence of developing countries, which have been increasingly represented in the United Nations since the 1960s – and has been entrusted to the International Seabed Authority (ISA) for supervision and the distribution of mining licenses.
Convention on the Law of the Sea / “UNCLOS III”
UNCLOS III governs deep sea mining in its part XI, modified by an amendment agreement (“Agreement Relating to the Implementation of Part XI of the Convention”, of July 28, 1994). Key aspects of the regulation:
- Unified procedures concerning the grant of exploration and mining licenses by the Seabed Authority ISA
- Dispute resolution by the “Seabed Chamber” of the International Tribunal of the Law of the Sea (ITLOS)
- Extensive environmental protection regulations (although some still criticize it as insufficient)
- Involvement of developing countries in deep sea mining and, to the extent those countries are land-locked, allowing them to share the revenue of deep sea mining
The amendment agreement became necessary because the number of 60 ratifications required for UNCLOS III to enter into force seemed unattainable due to the in part overly detailed and investment-unfriendly regulations of the original convention. As soon as the amendment agreement provided some relief as to those obstacles, UNCLOS III entered into force in the same year, 12 years after having been signed. Germany also ratified only in 1994.
International Seabed Authority (ISA)
The International Seabed Authority (ISA), located in Kingston, Jamaica, is inter alia tasked with creating regulations for the exploration and mining of deep seabed resources. Those regulations are also part of the field of work of the firm, as far as they exist or are yet-to-be-created.
Regulations so far enacted are compiled by ISA into the “Mining Code”, which shall at some point contain all regulations relevant for deep sea mining. Since about 15 years, ISA grants exploration licenses, predominantly for the so-called Clarion-Clipperton zone, an area of more than 15 million square kilometers located in the Pacific Ocean between New Zealand and Mexico. The following regulations were created as part of the “Mining Code”:
- Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (enacted 07/13/2000, amended 25/07/2013);
- Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (enacted 05/07/2010);
- Regulations on Prospecting and Exploration for Cobalt-Rich Crusts (enacted 07/27/2012).