Effective Protection of the Marine Environment and Equitable Benefit Sharing in the Area: Empty Promises or Feasible Goals?

abstract

The international legal framework with regard to “the Area,” comprising the deep seabed and the subsoil beyond the boundaries of national jurisdiction, has been modified significantly through the years. It was first established by part XI of the United Nations Convention on the Law of the Sea, but the 1994 Implementation Agreement introduced several changes. These general rules and principles are further developed in the “Mining Code,” referring to the comprehensive set of regulations and procedures issued by the International Seabed Authority. The Authority has already produced rules for the first phases of mining activities (prospecting and exploration) in the Area, but has yet to adopt exploitation regulations. Nevertheless, the most recent draft of the exploitation regulations provides a good indication of the current state of play. This article analyzes the current draft of the exploitation regulations, which will shape the future deep seabed mining regime, in order to evaluate whether the relevant provisions are sufficient and effective to attain two prominent goals with regard to the Area: the protection of the marine environment and the equitable sharing of financial and economic benefits. The Law of the Sea Convention indeed states that the resources of the deep seabed are considered common heritage of mankind and prioritizes these objectives. Therefore, the exploitation regulations should strike an appropriate balance between commercial exploitation, environmental protection, and the interests of developing countries. The strengths and weaknesses of this document and the overarching international legal framework are identified and possible corrections are suggested.     

The United States and the revision of the 1982 convention on the law of the sea

Abstract

It may now be possible to breach the 1982 Law of the Sea Convention impasse. The UN Secretary‐General's informal consultations have opened realistic discussions on the deep seabed regime. Many important changes have occurred since the Convention was signed. Dramatic developments have taken place in the international community. Nations now appreciate the limited potential of deep seabed mining. While United States reliance on customary law provides some benefits, other more important U.S. interests cannot be protected absent entry into force of the Convention with widespread participation. Many alternative procedures are available to forge an accommodation. The approach taken in the Secretary‐General's consultations is to make specific changes in deficient articles. Alternatively, the present regime might be jettisoned in favor of a framework regime. Such a regime would preserve only the essential basic policies of the Convention's seabed regime. It would contain a system for constructing a viable mining system if a deep seabed regime is needed.     

Deep seabed mining: A definition of the problem

Abstract

The prospects for deep seabed mining in this century appear remote. The U.N. Convention on the Law of the Sea was closed for signature on December 10, 1982. As of that date, 155 nation‐states and four entities had signed, but not the United States and some others. Since that time, the United States has endeavored without much success to develop a “Reciprocating States Agreement”; that would legitimate seabed mining with or without the U.N. Convention. On the other hand, the Preparatory Commission has met six times and is making only modest progress without the participation of the United States, the United Kingdom, and the Federal Republic of Germany.     

Japan and deep seabed mining

Abstract

Japan holds a unique position among potential deep seabed mining states. This paper describes this uniqueness and identifies four possible factors that the author believes have influenced the shaping of Japan's policy. These factors are: the importance of the use of oceans and a stable legal order, the near‐total dependence on imports of the four mineral resources which are contained in manganese nodules, the need to cooperate with Western industrialized countries, and the traditional close ties between the government and private industry. The paper then examines the past and current developments regarding Japan's involvement in deep seabed affairs from the perspectives provided by these four salient facts. The author concludes by expressing the hope that current differences in the positions of potential mining states will be reconciled as actual deep seabed exploitation becomes more of a reality.     

Deep‐sea mining between convention and national legislation

Abstract

A Draft Convention, informal rather than formal, emerged in September 1980, from the Ninth Session of the Third UN Conference on the Law of the Sea. At about the same time the Federal Republic of Germany and the United States passed interim legislation to create a legal framework for deep‐sea mining activities. If seabed mining is to be undertaken, a legal framework or “Rechtsordnung”; must be established which secures the right of access to the resources under commercially viable conditions during the operational time‐span of an industry, namely twenty to thirty years. At issue is the long‐term problem of securing strategic raw materials rather than the realization of short‐term profit. The American decision in March 1981, immediately prior to the Tenth Session, to review the Draft Treaty, has served to focus attention on the system of access, the decision‐making processes of the International Seabed Authority, the transfer of technology and the payment of fees, and the capability of the Enterprise as a seabed miner.     

Deep seabed mining: Can an acceptable regime ever be found?

Abstract

Fourteen years of effort by the Third United Nations Conference on the Law of the Sea and its predecessors have so far failed to produce a generally acceptable regime for deep seabed mining. The present Draft Convention does contain ingenious solutions to the problems created by the unique characteristics of seabed resources, the lack of existing international law governing their exploitation, the influence of the navigation provisions, and the need to reconcile the financial requirements of miners with the expectations of developing countries. It is a remarkable achievement in view of the negotiating obstacles that had to be overcome, but the regime is cumbersome and expensive. Further improvements in the interest of simplification will have to be made if it is to be workable.     

United States policy on international straits

Abstract

United States policy on international straits is dictated by the vital importance to U.S. national security interests of unimpeded commercial and military transit through, over, and under sea lines of communication. Although perceived flaws in the deep seabed mining regime of the 1982 Law of the Sea Convention precluded U.S. signature or ratification of that document, the United States considers that the navigational articles of the convention reflect customary international law. Accordingly, U.S. policy on international straits is premised on recognition of and respect for the balance of interests set forth in the navigational articles of the 1982 Law of the Sea Convention.     

Ocean mineral revenue sharing

Abstract

This article considers the importance of ocean mineral revenue sharing, from both the oil and gas of the continental margin and the manganese nodules of the deep seabed, at the United Nations Law of the Sea Conference. First the paper examines margin revenue sharing as proposed in Article 82, Informal Composite Negotiating Text. It estimates the amount of oil and gas in offshore areas, the potential value of these resources to the coastal state, the potential revenue to be shared with an international authority, and when these resources will be exploited. The paper concludes that revenue sharing from the margin will yield little if any revenue to an international authority. The article then discusses deep seabed revenue sharing. It estimates several possibilities, including nodule production by the mid‐1980s; the value of operations to the exploiting state(s)—particularly the United States; revenues to be shared with an international authority; the impact of nodule mining on land‐based producers of seabed minerals; and the uses of revenue sharing funds by an international authority. The paper concludes that revenue sharing will not exert much influence on negotiations at the United Nations Law of the Sea Conference.     

Municipal legislation for exploitation of the deep seabed

Abstract

This study traces the evolution of municipal legislation for the deep seabed in the United States of America and the Federal Republic of Germany, and considers what the United States seeks to gain and what it may possibly lose through its recent enactment of the Deep Seabed Hard Mineral Resources Act. The study concludes that the Deep Seabed Hard Mineral‐Resources Act will ensure for the United States that the minerals of the deep seabed are (if they can be) available when needed, and will strengthen the negotiating position of the United States in UNCLOS III vis‐à‐vis a proposed seabed regime which it perceives as inefficient toward the development of manganese nodules, and unacceptable in the system of governance it promotes. Passage of the Act, it is concluded, will probably not result in a breakdown of the Law of the Sea negotiations. It is thought it will give rise to a legal challenge, the outcome of which is difficult to predict. Finally, it is asserted that political/economic opposition to the Act will be mitigated by the reasonableness of the Act, its provision for delayed implementation, and the desire of many nations to conclude a successful Law of the Sea Treaty.     

Antarctica and the law of the sea: An introductory overview

Abstract

This article examines the potential for conflict between the Antarctic Treaty regime and the Convention recently produced by the Third United Nations Conference on the Law of the Sea. Should the UNCLOS III Convention enter into force, at least six issue‐areas seem susceptible to future controversy in Antarctic waters, namely (1) seaward territorial limits; (2) resource management and conservation; (3) local environment protection; (4) marine scientific research; (5) deep seabed mining; and (6) archipelagic‐island regimes. Accordingly, each issue‐area is assessed as to its relevance for the Southern Ocean vis‐a‐vis the Antarctic Treaty parties, with a particular view towards signaling possible problems which involve conflict of interest and overlapping jurisdiction.     

Legal regimes for seabed hard mineral mining: Evolution at the federal and state levels

Abstract

During the last decade U.S. government and industry interest in seabed hard minerals has shifted from areas beyond national jurisdiction to those within national jurisdiction. A variety of factors—technical, economic, political, legal—are behind this trend. This article focuses on the legal aspects of federal and state efforts to encourage and regulate seabed minerals exploration activities, prospective avoidance of conflicts between seabed mining and other ocean uses, federal‐state relations in seabed minerals development, and the special situation of mineral deposits spanning the federal‐state boundary offshore.     

The tax revenue potential of manganese nodules

Abstract

Mounting interest in deep seabed mining has raised high expectations in the tax revenue potential of the future nodule industry. In the absence of any existing commercial nodule mining operation, estimates of the likely “take”; are highly conjectural. This paper develops four alternative estimates for 1985 based on sets of variables on nodule mining, mineral markets and “tax rates”; that range from conservative to overly optimistic. The resulting “take”; from these calculations range from $22 million to $I .2 billion, with the most likely actual figure between 50 and 150 million dollars by 1985.     

UNCLOS III and the new international economic order

Abstract

The New International Economic Order has become an all pervasive issue in contemporary international relations and is being discussed, debated, and considered in a number of international organizations and negotiations. Representatives of the Third World have demanded under its banner significant changes in the world's political and economic structure. It is in this context that the Third United Nations Conference on the Law of the Sea has been meeting.

This study focuses upon the protracted negotiations on seabed mining and seeks to relate continuing North‐South differences to broader trends in international relations. It examines, in light of pressures for a New International Economic Order, disagreements relative to: a) access to seabed resources, b) the resource and commodity policy of the proposed International Sea‐Bed Authority, c) financial arrangements for deep seabed mining, d) transfer of technology, and e) the organizational structure of the International Sea‐Bed Authority.     

The U.N. convention on the law of the sea and military interests in the indian ocean

Abstract

The U.N. Law of the Sea Convention, ambiguous on military uses of the ocean space, weakens the legal basis for the maritime powers to pursue freely their military objectives in the oceans. Repudiation of the Convention by the United States will accelerate the creeping jurisdiction of the littoral states. The Convention enhances the security of the littoral states of the Indian Ocean, all of whom have only limited blue‐water capabilities and have sought to contain the military intrusions of the superpowers into the Indian Ocean.     

Canadian perspectives on seabed mining: The case of the production limitation formula

Abstract

This paper will analyze the position Canada took on seabed mining in the Third United Nations Law of the Sea Conference (UNCLOS III). Canada is a major land‐based producer of nickel, an industrialized country with private interests in seabed mining, a NATO member, a major ally of the United States, and a country with extensive ties to less‐developed countries. At UNCLOS III Canada was concerned primarily about the management and control of its coastal resources and the protection of the marine environment. After having secured these interests, Canada emerged as the leader of the land‐based mineral‐producer group advocating production controls on seabed mining. The production limitation formula was one of the major reasons for the United States’ decision not to sign the Law of the Sea Treaty. In so forcefully advocating a production limitation formula, the Canadian delegation relinquished Canada's potential as a middle power to bridge the gap between the Group of 77 and the Western industrialized countries in order to formulate a widely acceptable regime to govern the seabed. A production limitation formula was not in Canada's best interests, given her potential role in seabed mining, and was rejected by officials in the Department of Energy, Mines, and Resources, as well as the Canadian private sector.     

Mine warfare at sea—some legal aspects of the future

Abstract

The paper addresses some of the problems that new weapon technology at sea are posing to traditional legal concepts, and to illustrate these, the sea mine has been taken as the topical weapon. One of the difficulties is that since the Hague Peace Conference of 1907, through the Covenant of the League of Nations and the Paris Treaty of 1928 renouncing war as an instrument of national policy up to the situation after the Charter of the United Nations, it is improbable that any nation will ever again declare war. In the absence of declared war, it is probably most helpful to categorize the threat or use of armed force as either a delict, a sanction, or self‐defense. The use of mines in any legal context gives rise to two fundamental questions:

a. Is the mine a lawful weapon?

b. If it is a lawful weapon what are the legal restraints on its use, if any?

The paper asserts, inter alia, that the Hague Convention No VIII Relative to the Laying of Automatic Submarine Contact Mines does not prohibit the mine as then known, and that the legal status of mines as a weapon of war has not fundamentally changed since 1907.     

Transfer of seabed mining technology: A stumbling block to U.S. ratification of the law of the sea convention?

Abstract

The Law of the Sea Convention's provisionson the transfer of seabed technology are designed to translate into specific terms the general notions (adopted in the U. N.’s Declaration of Principles of 1970) that the resources of the seabed are the “common heritage”; of humankind and that the developing nations are to gain special benefits from the exploitation of these resources. Some developed nations—in particular, the United States—have argued that these provisions are unfair, because they deprive the multinational enterprises of the developed world of the competitive advantage they have gained from their substantial investment in research and development and their innovative capabilities.

The transfer of technology is not a new concept. It is a mechanism that has been used systematically by many developing countries to ensure that foreign investments will produce a lasting infrastructure for continued national development. Multinational enterprises have learned to accommodate national needs in this area, and technology‐transfer requirements for land‐based investments have not deterred investments in the developing world.

The technology‐transfer provisions in the Law of the Sea Convention are ambiguous in certain respects, but the Preparatory Conference should provide ample opportunity to clarify these ambiguities and thus to accommodate the needs of both the investors and the developing nations. If this issue is examined from a common‐sense perspective, it should not continue to be a stumbling block that would prevent the United States from ratifying this important Convention.     

A Review of “Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics”

Abstract

The purpose of the London Dumping Convention (LDC) is the protection of the marine environment including its seabed and subsoil. The preamble, articles, and annexes of the LDC make clear that the Convention must be interpreted in a manner which ensures that this responsibility is met. As a partial response to that mandate, the LDC prohibits the dumping at sea of certain wastes, including high‐level radioactive wastes. Disposal of high‐level wastes in seabed sediments is the subject of ongoing technical, environmental, and engineering feasibility studies by several countries. In the LDC's definition of dumping, the phrase “disposal at sea”; could be interpreted narrowly to mean the final resting place of wastes—with seabed disposal excluded from coverage because those wastes are not in direct contact with “marine waters.”; Given the LDC's object and purpose, though, the only harmonious and reasonable interpretation is that which defines “disposal at sea”; to mean the place where the dumping activities occur. Other international agreements also support this object and purpose‐based interpretation which concludes that seabed disposal is covered and prohibited. In addition, this approach is preferred because it contributes to the continued effectiveness of the LDC.     

The new law of the sea and the pacific basin

Abstract

The UN Convention on the Law of the Sea is indispensable for the well‐being of the states, especially the new island states, of the Pacific Basin. Since the Treaty will be signed at Caracas in December 1982, it is important to anticipate its impact in the Pacific Region area. The article examines the need for a new ocean law to replace the old law of the Geneva Conventions. It argues that exploitation of manganese nodules in the “Area”; will be legal only under the rules of Part XI of the Convention and that the principles of the Common Heritage of Mankind are now part of customary law. Finally, the seaward expansion of Pacific states authorized in the new treaty both necessitates, and provides an opportunity for, coordinated planning for the management of ocean resources and usages.     

Wide limits and “equitable”; distribution of seabed resources

Abstract

This article discusses some drawbacks of a universally applicable 200‐mile limit for seabed resources in terms of the artificial nature of this limit, the jeopardy to the proposed international regime to govern deep seabed resources, and the views of land‐locked and shelf‐locked countries. Given the uncertain political acceptability of a 200‐mile limit, a systems approach is suggested as a means of devising a compromise solution that would maximize the objectives of: respect of existing internationally agreed conventions; promotion of the rational development of deep seabed resources; provision of equitable distribution of seabed resources and provision of acceptable benefits to all major groups of countries. One possible solution would be to have the limit of coastal jurisdiction over seabed resources defined in terms of the continental margin coupled with a system for sharing the “take”; in the area between 12 miles and the limit of the margin. The share payable to the international seabed authority would increase progressively with the distance of exploitation from the coast but would be moderated by the relative income level of the coastal State.