The International Seabed Authority (ISA) has powers to regulate commercial activities in the Area, but they are not as wide as those of a sovereign state are and there are limits to its implied powers. In addition, the ISA has significant powers to add conditions to the licenses. Still, there may be a problem to issue the necessary legislation in respect of commercial activities in the Area. Who shall for example take the role of the state and issue legislation for mortgaging the equipment involved in mining operations? Similar problems arise for example in respect of patent infringements in the Area, labor protection, and extra contractual liabilities. Neither the limited powers of the ISA nor conditions on licensing are apt to deal with such matters. The powers may be too limited, and while licensing provisions effectively can deal with the position of the licensee contractor, they cannot deal with the position of third parties, which are not bound by the license. Such third parties for example include the mortgagees and the general creditors in case of mortgaging.
Alternative legislators are the flag state of involved vessels or the state of incorporation of the licensee contractor. In addition, the “sponsoring state” of the licensee contractor, which is required by UNCLOS, may legislate. In this chapter, these different possibilities will be explored.
Article 82 of the United Nations Convention on the Law of the Sea is a novel provision introducing the first-ever international royalty on production from non-living resources within national jurisdiction, specifically from the extended continental shelf as defined in Article 76. Article 82 has several textual ambiguities that could pose a challenge for its interpretation and implementation by both affected coastal States and the International Seabed Authority. The Authority is responsible for receiving payments or contributions in kind and for effecting their distribution to States Parties to the Convention, especially developing countries, in accordance with equitable criteria. The Authority has launched initiatives to help focus attention on the provision and to enhance its understanding and facilitate implementation. Article 82 is expected to be first activated on Canada’s extended continental shelf off Newfoundland in the Northwest Atlantic. In implementing Article 82 Canada faces domestic political, economic and legal challenges, in addition to the textual ambiguities. This chapter discusses the major issues and underscores the important leadership and precedential role played by Canada in domesticating Article 82 and developing a relationship with the Authority on this matter.
This chapter explores the extent to which the investment treaty framework can be applied to seabed investments and, if so, the scope of protection that may be expected by investors. It focuses on seabed investments made within the jurisdiction of coastal states. The chapter is divided into three parts. Firstly, there will be a brief introduction to the international investment treaty regime as it has evolved since its inception in the late 1950s. Secondly, the chapter addresses the geographical scope of international investment treaties, considering the extent to which they can be applied to offshore investments, all sectors included. Thirdly, the chapter considers the substantive protections that are available if a seabed investment is found to fall within the scope of an investment treaty. The analysis demands an understanding of how international investment law interacts with relevant rules in the international law of the sea or international environmental law. Given the intensification in seabed activity around the world, this analysis will provide an important contribution to clarifying key issues that arise in the interpretation and application of investment standards in this context. Ultimately, the chapter aims to propose a framework of principles to reconcile these two areas of law.
The ‘Mining Code’ developed by the International Seabed Authority aims to regulate the prospecting, exploration and exploitation of marine minerals in the international seabed Area. While regulations for prospecting and exploration have already been adopted, the Authority is still discussing the draft exploitation regulations, which should be finalised by 2020.
Looking at the regime for liability and compensation, this chapter is a contribution to the discussion on how to compensate damage caused by activities in the Area. The author takes the view that the draft regulations for exploitation, in their present form, do not construct an adequate model for liability and compensation for damage as a result of these activities. The chapter sketches the current parallel system of the sponsoring State’s responsibility for damage caused in the Area and the sponsored contractor’s liability for damage caused in the Area. The chapter attempts to draw a model for an improved liability and compensation system for damage caused by deep-sea mining in the Area.
The global debate on how to regulate use of marine genetic resources from the area beyond national jurisdiction is going in the United Nations. This chapter discusses potential elements in regulating rights and use of these genetic resources. The perspective is to approach one factual manner to integrate non-monetary and monetary benefit sharing into a legally binding system. Taking practical manners of using marine biological resources for specific purposes, this chapter discusses theoretical models (as OPEN) that are on the table for discussion for approaching the regulation of access and benefit sharing. This approach will identify the extent to which they hold a potential to establish a legally functional model for a binding access and benefit sharing system. The legal aspects discussed aim at presenting a practical system for the user of marine material along with promoting global research and development based on marine genetic resources. This discussion is based on applying the fundamental principle of freedom of the high seas with adapting the principle of flag state jurisdiction. The chapter provides a clear view on how such a regulatory model can be aligned with the exclusive rights awarded by patents when the activity results in an invention. The chapter discusses open and semi-open source options for using repositories as a practical means of securing access to the resources for the many. It highlights the potential role of private contracts for such a global regime to become functional.
The deep seabed area beyond national jurisdiction(the Area) raises certain important maritime security issues such as the emplacement of weapons of mass destruction in the Area, prospects of piracy and terrorism against ships engaged in deep seabed mining activities, as well as the challenge that deep seabed mining activities could actually raise issues as regard environmental security. Yet relatively little has been articulated on maritime security and the Area. This chapter seeks to investigate possible maritime security issues that could arise in the Area, engaging with this from what may be considered a rather traditional state-centric maritime security approach, as well as a more non-State centric viewpoint.
The North Sea is important within the European energy sector. In addition to the oil and gas reservoirs present beneath the seabed, the North Sea has been identified as a primary location to construct renewable energy infrastructure and may provide eight percent of the energy supply in Europe by 2030. Offshore oil and gas, offshore wind and ocean energy projects are capital intensive; billions of euros are required for the construction of many individual projects. It is common business practice to raise debt, which is more expensive when risks are greater. Security rights such as mortgage and pledge reduce the risks of lenders. It is currently impossible to mortgage installations situated on the seabed further than 22.2 kilometres off the Dutch coast. Allowing for such mortgages could benefit the development of the offshore energy sector as this would reduce risks. This contribution reviews an alternative which would allow for installations on this part of the seabed to be mortgaged. In this context law of the sea, the lex rei sitae, ownership of the seabed and rules of Dutch property law are discussed.