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The Law of the Seabed

Access, Uses, and Protection of Seabed Resources

Series:

Edited by Catherine Banet

The Law of the Seabed reviews the most pressing legal questions raised by the use and protection of natural resources on and underneath the world’s seabeds.
While barely accessible, the seabed plays a major role in the Earth’s ecological balance. It is both a medium and a resource, and is central to the blue economy. New uses and new knowledge about seabed ecosystems, and the risks of disputes due to competing interests, urge reflection on which regulatory approaches to pursue.
The regulation of ocean activities is essentially sector-based, and the book puts in parallel the international and national regimes for seabed mining, oil and gas, energy generation, bottom fisheries, marine genetic resources, carbon sequestration and maritime security operations, both within and beyond the national jurisdiction.
The book contains seven parts respectively addressing the definition of the seabed from a multidisciplinary perspective, the principles of jurisdiction delimitation under the United Nations Convention on the Law of the Sea (UNCLOS), the regimes for use of non-living, living and marine biodiversity resources, the role of state and non-state actors, the laying and removal of installations, the principles for sustainable and equitable use (common heritage of mankind, precaution, benefit sharing), and management tools to ensure coexistence between activities as well as the protection of the marine environment.

Kris Van Nijen, Steven Van Passel, Chris G. Brown, Michael W. Lodge, Kathleen Segerson and Dale Squires

Abstract

In July 2015, the Council of the International Seabed Authority (ISA) adopted seven priority deliverables for the development of the exploitation code. The first priority was the development of a zero draft of the exploitation regulations. This article focusses on the second priority deliverable, namely the development of a payment mechanism for exploitation activities, following detailed financial and economic models based on proposed business plans. Between 2015 and 2017, five workshops have been organised with 196 active participants from 34 countries. The results so far are synthesised, drawing upon the outcome of these workshops, ISA technical papers, and the scholarly literature.

Drifting Fish Aggregating Devices (FADs)

Deploying, Soaking and Setting – When Is a FAD ‘Fishing’?

Quentin Hanich, Ruth Davis, Glen Holmes, Elizabeth-Rose Amidjogbe and Brooke Campbell

Abstract

This article describes the proliferation of drifting fish aggregating devices (FADs) and analyses subsequent legal questions that arise for fisheries and marine litter management over who is responsible for FADs during their drifting stage. This follows recent concerns about unlicensed FADs drifting through closed areas. This article analyses a case study of the Western and Central Pacific Fisheries Commission (WCPFC) in order to determine State obligations to manage drifting FADs. Analysis concludes that a drifting FAD in the WCPFC Area is ‘fishing’ from deployment to recovery, thereby creating obligations to monitor, control and report drifting FADs, consistent with broader obligations for coastal and flag States. The article recommends strengthening regional management in three ways: implement regional drifting FAD monitoring systems; control deployment of drifting FADs so as to promote recovery and minimize lost gear; and define appropriate responses for FADs that drift into national or closed waters without a license.

Youna Lyons, Robert Beckman, Loke Ming Choub and Danwei Huang

Abstract

Evolution of the marine protected area discourse into an area-based management tool may provide an avenue for a more progressive approach to protection of the Spratly seamounts. A first step could be the recognition of the Spratlys as an ecologically or biologically significant area (EBSA) under the Convention on Biological Diversity. This purely scientific recognition exercise would be without prejudice to the sovereignty, sovereign rights and jurisdiction of coastal States or State claiming sovereignty over the islands. Furthermore, it is up to the States concerned to later agree on specific restriction on activities in these areas as deemed necessary. This article shows that there are sufficient published data to justify that the Spratly seamounts meet the scientific criteria of an EBSA. However, it also proposes areas that may be prioritised on the basis of distinctive species composition of reef-building corals in the South China Sea.

Tommy Koh

Solène Guggisberg

Abstract

The European Union’s (EU) new Regulation on the sustainable management of external fishing fleets strengthens the framework under which authorisations are granted to EU vessels desiring to fish outside of EU waters. It applies to all such fishing activities, conditions the granting of authorisations on sustainability criteria, and provides a level of institutional control on Member States’ actions, as well as some transparency. It also covers poorly monitored practices, such as reflagging and chartering. However, there have been some missed opportunities, in particular with regard to unregulated high seas fishing and the public accessibility of data on beneficial ownership. More generally, the impact on sustainability of the EU’s stricter measures will depend, in the highly inter-connected world of fisheries, on whether other States also embrace such good governance principles.

Rozemarijn Roland Holst

Abstract

The Ocean Cleanup is a Dutch non-profit organisation on a mission to develop and deploy pioneering technology to rid the oceans of plastic. Considering the unique nature of the activity and the technology involved, it is not immediately self-evident which international regulations are directly applicable to this novel use of the high seas. The Dutch government, however, pledged to support the endeavour, and entered into a tailor-made Agreement with The Ocean Cleanup in order to ensure that its activities are conducted in accordance with general international law on maritime safety, the protection of the marine environment, and other legitimate uses of the high seas. This article reflects critically on the parties’ choice to base the Agreement ‘by analogy’ on the Law of the Sea Convention’s provisions on marine scientific research, and analyses the relationship of its core provisions with applicable international law, as well as identifying potential gaps.