2.1 Support from Top Leadership

China is a coastal state with 2.997 million square kilometres of ocean area.⁶ However, China is not yet viewed as a strong maritime power. The national strategy of marine development began on 8 November 2012 when Hu Jintao, the then general secretary of the Central Committee of the Communist Party of China (CPC) and Chinese president, delivered a work report to the 18th CPC National Congress.⁷ The report vowed to develop China into a “maritime power”: “We should enhance our capacity for exploiting marine resources, develop the marine economy, protect the marine ecological environment, resolutely safeguard China’s maritime rights and interests, and build China into a maritime power.” In addition, the current Chinese president, Xi Jinping, has also stressed the importance of marine power development and of establishing China’s marine economy as a new growth point in his speech addressing the 8th Group Study for the Political Bureau of the Central Committee of the CPC in 2013.⁸ Thus, with firm support from the top leadership, the Twelfth National People’s Congress efficiently moved to adopt the Deep Seabed Law.

2.2 Four Exploration Contracts from the ISA

A second factor that facilitated the passing of the Deep Seabed Law was that China is becoming increasingly active with international seabed mining activities. The China Ocean Mineral Resource R&D Association (COMRA) was established in 1990 and has since been instrumental in spearheading China’s ambitions for deep seabed development. COMRA is a governmental organisation directly under the guidance of the Ministry of Natural Resources.⁹ It undertakes both research and commercial activities related to exploration and exploitation in the Area, in accordance with the applicable provisions of UNCLOS and the 1994 Agreement relating to the Implementation of Part XI of UNCLOS (the Implementation Agreement). COMRA was registered as one of the seven pioneer investors for the preparatory committee for the International Seabed Authority (ISA, the Authority) and the International Tribunal for the Law of the Sea (ITLOS) in 1991.

Via COMRA, China signed its first exploration contract for polymetallic nodules with the ISA in 2001, and has since acquired the exclusive exploration rights as well as preferential rights for exploitation with respect to those minerals in the contracted seabed area. In 2011 and 2014, COMRA signed additional exploration contracts for polymetallic sulphides and cobalt-rich ferromanganese crusts with the Authority, respectively.

Meanwhile, Chinese scientists have predicted that China is facing a severe problem related to a major mineral shortage. By 2020, 39 out of 45 major types of minerals produced within the nation could be inadequate for meeting China’s domestic demand.¹⁰ In order to supply the country’s rising demand for copper, cobalt, gold and the rare-earth elements that are vital in the manufacturing of smartphones and other high-tech products, China Minmetals Corporation, a state-owned company and now the country’s largest metals trader,¹¹ has also delved into deep-sea mining research and development. In 2015, the ISA authorised an exploration contract, a 72,745 square kilometre (28,087 sq. mile) permit in the Pacific Ocean, to China Minmetals. Then on 12 May 2017, a contract for exploration for polymetallic nodules between the ISA and China Minmetals Corporation was signed on 17 May 2017. Together with the COMRA contracts, China is now a Party State which sponsors the largest number of seabed exploration contracts issued by the Authority covering all three types of deep-sea minerals (i.e., polymetallic nodules, polymetallic sulphides and cobalt-rich ferromanganese crusts).

The exploration and exploitation of resources in the Area are considered a difficult, risky, pioneering, and comprehensive project. It is also an international undertaking of tremendous political, economic, and strategic significance. With the perspective that more national entities would assume a part in the project, and more ISA contracts would be signed in the future, China’s central government was in need of a competent legal tool to strengthen its supervision and management of activities conducted in the Area, as well as to ensure compliance of entities operating in the Area. The promulgation of the Deep Seabed Law fulfils China’s sponsoring State obligations and protects the legal interests of the sponsored contractors.

2.3 Technological Advancement

Thirdly, China has seen remarkable achievements in deep-sea exploration technology. For example, the successful launch of the “Three Dragons” equipment system symbolised China’s ambition to make full use of the deep seabed areas.

Representing a technological milestone and an important part of the national marine strategy, the “Three Dragons System” consists of:

• Human Occupied Vehicles (HOVs) known as “Jiaolong”;

• Autonomous/Unmanned Underwater Vehicles (AUVs) called the “Qianlong” series;¹² and

• Remotely Operated Vehicles (ROVs) designated the “Sea Dragon” series.¹³

Benefiting from a variety of technological advancements, China has undertaken over 50 ocean voyages to conduct comprehensive surveys and scientific research on the deep sea environment and has acquired valuable first-hand knowledge in relation to mining activities in the Area.¹⁴ The latest 52nd ocean voyage set sail from Qingdao on 10 December 2018 and finished on 25 July 2019. Equipped with the most advanced “Jiaolong”, “Qianlong No. 3” and “Sea Dragon No. 3”, this voyage was an important task and a major part of China’s marine development project under the 13th Five-Year Plan for economic and social development (2016–2020). The voyage was designed in two parts consisting of a total of 228 days. Part A was 150 days, covering the Indian Ocean and Atlantic Ocean, conducting surveys of the marine environment, prospecting biological genetic resources, and collecting environmental baseline data and samples in the surveyed area. Part B was 78 days, mainly conducting a comprehensive investigation of polymetallic sulphides in the southwest Indian Ocean in order to collect samples and information to further comprehend the resources and environmental status.¹⁵

Above all, technological developments have provided a solid foundation for expanded research and served as important precondition for China’s legislation concerning the exploration and development of resources located in the international seabed area.

3.1 Why Does China Need the Deep Seabed Law?

The most important reason for China to pass the Deep Seabed Law was to proactively fulfil its obligations under international laws. China ratified UNCLOS in 1996 that consisted of three layers of obligations of which China is required to comply under the Convention: as a State Party, as a sponsoring State, and as a responsible member of the international community.

First, the Deep Seabed Law fulfils China’s responsibilities as a State Party. This originates from Article 139, paragraph 1 of UNCLOS, which establishes the obligations of States Parties. Pursuant to that Article, States Parties shall have the responsibility to ensure that activities carried out by their sponsored contractors in the Area shall be in conformity with Part XI of UNCLOS.¹⁶ Additionally, Article 153, paragraph 4 of Part XI provides that the obligation of the States Parties in accordance with Article 139 entails “taking all measures necessary” to ensure compliance by the sponsored contractor, and Annex III, Article 4, paragraph 4 of UNCLOS further states that such sponsoring States have the “responsibility to ensure” that “laws and regulations” should be adopted “within their legal systems”.¹⁷ The purpose of these provisions is to achieve a result where the obligations set out in the Convention, a treaty under international law which binds only States Parties thereto, are fully complied with by entities that are subjects of domestic legal systems.

The process of how international agreements become a part of domestic laws of a sovereign state varies from State to State. Some States follow a monist system where treaties can become domestic law without incorporation, such as the Netherlands and France. Moreover, domestic courts in these countries could directly apply self-executing treaties if the provisions are considered sufficiently self-explanatory and these countries generally have constitutional provisions to provide legitimacy. In contrast, dualist states such as the United Kingdom require all treaties to go through a process of incorporation of international law before treaties can have any domestic legal effects.

China’s constitution is silent concerning the relationship between international treaties and domestic laws. However, Judicial practice has demonstrated that China follows a treaty ratification method somewhere between these two extremes. Automatic incorporating takes place only when the domestic law contains specific provisions. For example, Article 142 of China’s General Principles of the Civil Law has indicated that “If any international treaty concluded or acceded to by the People’s Republic of China contains provisions differing from those in the civil laws of the People’s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People’s Republic of China has announced reservations.”¹⁸ Therefore, with respect to civil laws, when international treaties contradict domestic laws, international laws prevail. In other cases, China incorporates international treaties by passing a law that gives effect to that treaty at the domestic level, such as in the case of incorporating UNCLOS. The enactment of the Deep Seabed Law is China’s response to its “responsibility to ensure” in order to comply with its requirements as a State Party.

Second, the enactment of the Deep Seabed Law aims to relieve China from its liability as a sponsoring State, namely, the consequences of a breach of the sponsoring State’s primary obligations. In practical terms, as pointed out by Ximena Hinrichs Oyarce, the issue to be considered is whether, in the event of a single incident causing damage to the Area or its resources, the liability either of the sponsoring State or of the sponsored contractor would arise. (See Ximena Hinrichs Oyarce, Sponsoring States in the Area: Obligations, Liability and the Role Development States, Marine Policy 95 (2018) 317–323) The special advisory opinion of the Seabed Disputes Chamber of ITLOS in 2011 (the Advisory Opinion) has given clarification to that point. The Advisory Opinion indicates that the failure of a sponsoring State to carry out its obligations gives rise to liability only when such failure results in damage by the contractor. The sponsoring State is absolved from liability if it has taken the necessary and appropriate measures.

However, this exemption does not apply automatically, as the “responsibility to ensure” is an obligation of “due diligence”. For it to apply, the sponsoring State must have taken “all necessary and appropriate measures to secure effective compliance” by the sponsored contractor with its obligations,¹⁹ while the exception does not apply to the failure of the sponsoring State to carry out its direct obligations.²⁰

China is a sponsoring State for four ISA contracts. The promulgation of the Deep Seabed Law and the implementation of administrative control with regard to the exploration and exploitation of deep seabed resources therefore serves two functions. It is a measure not only through which Chinese government could ensure compliance by its sponsored contractors (currently COMRA and China Minmetals) with their obligations under the relevant contracts and UNCLOS, but also an indispensable conditions that China must satisfy if it intends to be exempted from liability for damage.

Third, the Deep Seabed Law reflects China’s pledge to protect the marine environment as a rule-abiding and responsible member of the international community. Both UNCLOS Part XII and the Authority’s three regulations governing mineral-related exploration activities have provided special emphasis on protecting the marine environment from any harmful effects arising from mining and exploration activities.²¹ The Area and its resources are the common heritage of mankind; thus, all rights associated with the resources of the Area are vested in mankind as a whole. Therefore, protecting the marine environment of the Area is essentially for the benefit of all mankind and future generations. Adopting the Deep Seabed Law reflects the strong commitment and effort that China is making in order to maintain the international seabed order, to promote the sustainable and healthy development of the marine industry, and to advocate for the peaceful exploitation of deep-sea resources.

3.2 Why Was It Promulgated in 2016?

While China has become an active State Party to UNCLOS, it was not among the first few countries to pass national legislation to incorporate UNCLOS requirements. Prior to the enactment of the Deep Seabed Law in March 2016, 16 countries throughout the world had already adopted legislation (Act or Law) governing their engagement in seabed mineral activities undertaken in the Area. Consistent with the timing of their promulgation and against the benchmark event of UNCLOS entering into effect, the legislation may be divided into two specific groups (see table below).

One could say that the promulgation of the Deep Seabed Law represented a way for China to follow the regulatory trend. However, a crucial reason for the enactment of the Deep Seabed Law in 2016 was based primarily on the fact that one of China’s exploration contracts was due to expire.

Among the twenty-nine 15-year contracts the ISA has entered into for exploration for polymetallic nodules, polymetallic sulphides and cobalt-rich ferromanganese crusts in the deep seabed, China has acquired the following four contracts:

• 2001, COMRA, polymetallic nodules, 75,000 km² of the North-east Pacific Ocean;

• 2011, COMRA, polymetallic sulphides, 10000 km² of the South-west Indian Ocean;

• 2014, COMRA, cobalt-rich ferromanganese crusts, 3000 km² of the North-east Pacific Ocean;

• 2017, China Minmetals, polymetallic nodules, 72,745 km² of the East Pacific Ocean

As provided for in Regulation 26 of the 2000 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (amended and adopted 25 July 2013), the duration of a plan of work for an exploration contract is for 15 years. Upon expiration of that period, the contractor shall apply for a plan of work for exploitation, unless the contractor has already done so, or has obtained an extension for the plan of work for exploration, or decides to renounce its rights in the area covered by the plan of work for exploration.

View Full Size

• Download Figure
• Download figure as PowerPoint slide

China’s first exploration contract signed in 2001 was due to expire in 2016. Thus, if the commercial development conditions are ripe, the contract may need to be transferred to the development stage. However, the current domestic laws, such as the “Mineral Resources Law”, as mentioned above, were not sufficient for this purpose. Not only did the application scope of domestic laws not cover international seabed areas beyond the limits of national jurisdiction, but the legal language was also incompetent to govern increasingly active and complex activities conducted in the Area, which now involve huge investments, a long contractual period and high risks. Therefore, China’s Deep Seabed Law was a necessary measure to follow up on current activities conducted in the Area.

4.1 Scope of Application

The scope of the application contains three general aspects: eligible subjects; applicable activities; and applicable area.

4.2 Competent National Authority

Article 5 of the Deep Seabed Law establishes China’s competent national authority for mining activities in the Area by stating, “the oceanic administration of the State Council is responsible for the supervision and administration of the exploration, development, and investigation of resources in deep seabed areas. Other relevant departments of the State Council shall be responsible for the relevant administration, according to the functions prescribed by the State Council”.

Although not explicitly provided for, the “oceanic administration of the State Council” at large refers to China’s State Oceanic Administration (SOA). However, it should be noted that the functions and responsibilities of the SOA have now been divided and separated into two different, newly established ministries. Pursuant to the “Institutional Reform Plan of the State Council” which was approved at the first session of the 13th National People’s Congress in March 2018, oceanic administration functions of the SOA now falls under the regime of the new Ministry of Natural Resources. Meanwhile, the marine environmental protection responsibilities of the SOA are now integrated into the regime of the new Ministry of Ecology and Environment. Although for convenience reason the Ministry of Natural Resources still retains the brand of State Oceanic Administration for the public, the SOA is now officially an office/a subordinate department within the Ministry of Natural Resources. The SOA/Ministry of Natural Resources functions as the inspection and regulatory body of the Deep Seabed Law and is responsible for the supervision and administration of activities conducted by Chinese nationals in relation to the exploration, development, and investigation of resources in deep seabed areas. the Ministry of Ecology and Environment is involved with respect to marine environmental protection issues. However, in practice, COMRA has a direct operational role in the implementation of the Deep Seabed Law as well as general oceanic administration affairs. For example, at the media conference for the promulgation of first implementing regulation of the Deep Seabed Law, it was the Secretary-General of COMRA, Mr. Liu Feng, rather than any government officials from the SOA to address the public in relation to the regulation.

Ideally, the institutional structure of governance should include the following: a legislative body, an executive branch, a regulatory and monitoring agency, as well as an oversight or appeal committee for agency decision-making. The National People’s Congress is the legislative body. The SOA plays the role of regulatory and monitoring agency but without a supervision entity for its decision-making. COMRA is both the regulatory and monitoring agency and a sponsored contractor. Responsibilities of the SOA and the COMRA are not defined, while COMRA is both an athlete and a referee. Arguably, procedural fairness cannot be guaranteed and this institutional arrangement should be improved in the future.

4.3 Procedural Mechanism for Licensing

Except for France and the Russian Federation, 14 out of the 16 countries which have enacted national laws to incorporate UNCLOS have established a procedural mechanism to control and grant a license or State sponsorship for mining activities in the Area. All of them grant a license/certificate of sponsorship based on the application.

Their respective regulatory approach can be roughly grouped into four types:²⁷

a) A certificate of sponsorship without reference to a license/approval/permit (the Czech Republic, Fiji and Nauru)

The national law provides that a certificate of sponsorship is to be entered into by the sponsoring State and the sponsored applicant. Obtaining State sponsorship is a pre-condition for a contract application to the ISA. The Czech Republic requires an applicant to get a certificate of sponsorship before negotiations with the Authority; however, there is no reference to a licensing mechanism in the law. This approach is followed by countries such as Fiji, Nauru, and the Czech Republic.

b) A license (approval or permit) for seabed mining activities within national jurisdiction and a certificate of sponsorship for activities in the Area (Tonga and Tuvalu)

Both the States’ sponsorship scheme and the licensing procedure are provided in detail via the domestic laws, such as can be seen in Tonga and Tuvalu.

c) A certificate of sponsorship is to be issued after a license has been granted (Singapore)

Singapore’s State sponsorship scheme is only lightly touched upon in the Deep Seabed Mining Act 2015, with great emphasis attached to the licensing procedure. Thus, Singapore fulfils its sponsoring State obligations mainly through the licensing mechanism.

d) A license (approval or permit) without explicit reference to the certificate of sponsorship (Germany, Japan and the United Kingdom), but in practice, a certificate of sponsorship is issued for sponsored contractors.

No direct State sponsorship scheme is addressed in the domestic law; however, the sponsoring State commitment is integrated into the licensing system under the specific Deep Seabed Law. Such an approach is found in Germany and the UK.

China adopts the last approach. A licensing scheme is detailed in the Deep Seabed Law without explicit reference to the certificate of sponsorship. In accordance with Articles 7 and 8, before any Chinese citizen, legal person or organisation can apply to the ISA for an exploration and development contract, the entity shall first file an application with the SOA. The SOA will then examine the application materials submitted and conduct a qualification review. If successful, the SOA will grant a permit to the applicant within 60 working days. After obtaining the permit, the entity is then eligible to enter into an exploration and development contract with the ISA and become a Contractor. A duplicate copy of the ISA contract must be submitted to the SOA for record purposes no more than 30 days from the date of the signature.

In essence, China’s Deep Seabed Law has established a dual-track approval mechanism for exploration and development activities in the Area, namely, a valid license (approval or permit) issued by the SOA under domestic law, and a valid contract signed with the Authority under international law, prior to the applicant commencing activities in the Area. A similar practice can be seen in other countries such as the Czech Republic, Fiji, Germany, Japan, Nauru, New Zealand, Singapore, Tonga, Tuvalu, and the United Kingdom, which similarly provides a general prohibition on deep seabed mining activities in the Area unless the applicant holds a valid national license/State sponsorship. China further requires a valid contract with the Authority for activities in the Area.

This dual-track (national and international) approval procedure means that sponsored contractors are bound by Chinese domestic laws, as well as contractual terms with the ISA. The former domestic procedure is the prerequisite for the latter. The SOA validates and approves the qualification of the applicant and provides its consent for the applicant to enter into contracts with the ISA. Details of the contractual terms still depend on the negotiations between the contractor and the ISA. If a contract is not successfully concluded with the ISA within 3 years after the grant of the license, the license automatically expires.²⁸ In addition, the effective period of the license spans from the date of grant to the expiry date of the ISA contract.²⁹ If the ISA contract requires an extension, before the contractor files an extension application to the ISA, the contractor should first apply for an extension of the license with the SOA. The SOA has 60 working days to make a decision whether or not to allow the extension of the license and each extension period is no more than 5 years.³⁰ Essentially, the SOA could unilaterally withdraw State sponsorship and terminate the ISA contract if it refuses to extend the license. This type of governance system is new to Chinese authorities, which requires the SOA to fully consider the relevant international rules, while understanding the limits of their functions and powers. In that respect, the interaction between international laws and the provisions of the Deep Seabed Law affecting the rights and duties of the contractors may stress some areas of conflict and, thus, represent a challenge for Chinese judicial authorities in the future. The implementation impact of this practice is yet to be seen.

4.4 Rights, Obligations and Liabilities of a Sponsored Contractor

The rights, obligations and responsibilities of the licensee/sponsored contractor are directly set out in Articles 9–11 of China’s Deep Seabed Law. Some other countries such as Singapore and the United Kingdom provide for rights and obligations of the licensee under the terms and conditions of the license, which may have the inconvenience of having a lower legislative ranking and which may have less constraint on the contractors.

With respect to rights, Article 9 of the Deep Seabed Law affirms that a contractor has the exclusive rights to explore and develop specific resources within the region specified in the exploration and development contract. “Resources” here was not defined in the legislation. However, as the Deep Seabed Law directly incorporates the UNCLOS, it can be inferred from Article 133 of the UNCLOS that “resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed.³⁷

With respect to obligations of the sponsored contractor, they amount to a comprehensive list in the Deep Seabed Law and may be classified into the following categories:

1. to perform obligations under the exploration and development contract;

2. to guarantee the personal safety of employed operation persons subject to Chinese laws and the administrative regulations on work safety and labour protection;

3. to ensure the safety of the vessels, installation, equipment and operations in the Area;

4. to protect the marine environment, among others, including taking necessary measures to protect and preserve rare or fragile ecological systems and the living environment of weakened, threatened or endangered species and other marine organisms;

5. to safeguard the objects of archaeological and historical nature in the Area;

6. to periodically update the Authority and the SOA on the performance of exploration and development contracts; and

7. to assist and cooperate in the supervision and inspection conducted by the SOA.

On the other hand, countries such as Fiji, Tonga and Tuvalu have provided in their national laws a number of responsibilities of the sponsoring State for the benefits of the sponsored contractor. These responsibilities, among others, include communicating and providing any assistance to the Authority to give effect to the State’s sponsorship and not imposing unnecessary and disproportionate regulatory burdens on sponsored parties. China however limits its role and responsibilities of sponsoring States only to review and approve the transfer of license/ISA contracts and keep corresponding records. Even though Article 3 of the Deep Seabed Law unequivocally states that the State shall protect the lawful rights and interests of Chinese citizens, legal persons or other organisations that conduct the exploration, development and investigation of resources in the Area, the effectiveness of that is doubtful.

4.5 Environmental Protection Mechanism

Unlike the sponsorship requirement which only the State Parties willing to cooperate with the ISA will implement into domestic laws, the protection of the marine environment with respect to deep seabed mining activities has received global consensus. Many countries, including the United States which currently is an observer to the ISA and a non-party to the UNCLOS, have adopted a compensation and penalty mechanism for pollution and damage to marine environments. Some States set the element of marine environmental protection as one of criteria for granting a license/certificate of sponsorship (Nauru, Tonga, Tuvalu and the United Kingdom), while others set out in national laws the general or specific obligations of the licensee/contractor to protect the marine environment (Belgium, China, Czech Republic, Germany, Japan and the United Kingdom).³⁹

China has prioritised marine environment protection and made it a full part of the country’s marine strategy. This priority focus is reflected in the Deep Seabed Law, where the word “environment” is mentioned 20 times and the law dedicates a whole chapter (Chapter III) to environmental protection. As to the content of the requirements, Chapter III provides that a contractor shall apply the available advanced technologies and take necessary measures as far as reasonably practical: (i) to investigate and conduct research on the oceanic conditions; (ii) to establish environmental baselines and assess the possible impacts of mining activities; and (iii) to make and implement an environmental monitoring plan in order to prevent, reduce and control pollution and other damage to the marine environment caused by activities in the exploration and development area.

The Deep Seabed Law also addresses emergency situations by providing an emergency response plan. If an accident causing serious damage to the marine environment occurs or may occur, the contractor shall immediately sound an alarm, report to the SOA, and initiate the emergency response plan in accordance with Article 11. Similarly, the Acts of Fiji, Nauru, Tonga and Tuvalu also contain contingency plans of “incident” reporting, response and inquiry processes. Such environmental contingency plans are triggered by situations of pollution or serious harm to the environment.

In addition, Chapter I on General Provisions and Chapter II on Exploration and Development contain supplementary provisions related to marine environmental protection:

1. Article 1 stipulates that one of the objectives of the law is to protect the marine environment;

2. Article 3 requires that the exploration and development of resources in deep seabed areas shall be conducted in accordance with the principles of, inter alia, environmental protection and protection of the common interests of mankind;

3. Article 4 requires the State to adopt economic and technical policies and measures to enhance the capability of the protection of the marine environment;

4. Article 6 states that the government should encourage and support international cooperation in relation to environmental protection, scientific and technological research, education and training, among others;

5. Article 7 requires that the exploration and development plan submitted to the SOA for permit application should include background materials on the possible impact of exploration and development activities on the marine environment, including an emergency response plan for serious damage to the marine environment; and

6. Article 9 provides that the contractor shall perform the exploration and development contract under the obligation, inter alia, to protect the marine environment.

Compared to the other 15 countries which have passed domestic laws to regulate the deep seabed mining activities, China has demonstrated a high degree of commitment, and probably it is the only country prioritising the issue of marine environmental protection in its domestic law.

Besides national requirements, the three ISA Regulations have set out six environmental protection measures.⁴⁰ Some of them provide the basis for the national provisions mentioned above:

1. The contractor should “take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment … as far as reasonably possible using the best technology available to it …”, and “apply a precautionary approach, as reflected in Principle 15 of the Rio Declaration, and best environmental practices”;⁴¹

2. The contractor should establish and implement programs for monitoring and evaluating the impacts of deep seabed mining on the marine environment;⁴²

3. The contractor should gather environmental baseline data and establish environmental baselines;⁴³

4. Prior to the commencement of its programme of activities, the contractor should submit a contingency plan to the Secretary-General to respond effectively to incidents that are likely to cause serious harm or constitute serious threats to the marine environment when performing contractor’s activities;⁴⁴

5. The contractor shall promptly report to the Secretary-General any incident arising from its activities that has caused, is causing or poses a threat of serious harm to the marine environment;⁴⁵ and

6. The contractor should comply with emergency orders issued by the Council of the ISA, as well as the immediate measures issued by the Secretary-General, to prevent, contain, minimise or repair serious harm or the threat of serious harm to the marine environment. This may include orders to the contractor to immediately suspend or adjust any activities in the exploration area.⁴⁶

Some States emphasise the application of the precautionary approach and best environmental practice (Fiji, Nauru, Tonga and Tuvalu), while others implicitly include these principles in the national laws by endorsing the Authority’s rules, regulations and procedures.⁴⁷ China has fully incorporated these measures into its Deep Seabed Law and sets out standards, which are no less stringent than the requirements of ISA Regulations. In addition, the preservation of the ecosystem, the protection of endangered marine species, the preservation of marine biodiversity, and the sustainable use of marine resources required under Article 14 of the law also embody the principles of the resolution adopted by the United Nations General Assembly at RIO+20 on 27 July 2012.⁴⁸

Moreover, other Chinese laws and regulations have also provided a solid legal foundation for marine environmental protection. Domestic laws such as the “Marine Environmental Protection Law of the People’s Republic of China” and the “Administrative Regulation on the Prevention and Treatment of the Pollution and Damage to the Marine Environment by Marine Engineering Construction Projects” address environmental pollution and ecological damage caused by the exploitation and use of marine resources. Nevertheless, these laws only govern activities taking place in areas within China’s jurisdiction. The promulgation of the Deep Seabed Law further complements and strengthens the legal system for marine environmental protection in China.

However, although it is applauded that China’s Deep Seabed Law emphasises the ultimate importance of marine environment protection, relevant provisions in the law are quite vague and general. For instance, specific rules regulating environment impact assessment are still found wanting. Supplementary laws and administrative regulations shall be rolled out in the future to provide details and clarification. According to news report, the SOA previously had plan for four implementing regulations to be issued in 2017. The first three have already been promulgated in April 2017, December 2017, with the last “Measures for the Environmental Investigation and Assessment of Resources in Deep Seabed Areas” still in the pipeline.

4.6 Information Sharing and Cooperation

Few countries have stressed the importance of the sharing and cooperation mechanism contained in their respective national laws. As a general rule, Belgium, Fiji, Nauru, Tonga, Tuvalu and the United Kingdom regard data and information received as confidential or to be held with appropriate confidentiality, with only a few prescribed exceptions specified under their laws.⁴⁹ China, on the other hand, requires the SOA to register and retain the information and samples submitted by the persons or entities that conduct deep sea mining activities, and make such information and samples available for public use pursuant to relative rules. In fact, China takes this step further by stipulating in the Deep Seabed Law that it supports the construction and operation of a “deep sea public platform” for the purpose of sharing the benefits arising from its research as related to deep sea technology and the exploration for deep sea resources. Again, this tends to further demonstrate China’s commitment to the peaceful and sustainable utilization of deep-sea resources for the benefit of all mankind.

6.1 A Regulatory Blueprint for Other National Legislation

First, the law could be viewed as an effective precedent for countries who are yet to pass domestic legislation governing international seabed activities.

The Deep Seabed Law, in many ways, is a direct incorporation of the contents and requirements of the relevant international rules. Many provisions under the Deep Seabed Law are resonant with the legal wording formulated under the UNCLOS and other supplementary legal instruments (together referred as the “Mining Code”).⁵² For example, the definition of “deep seabed areas” established under the Deep Seabed Law has similar wording as the “Area” as defined under UNCLOS Article 1.

On the other hand, the law contains some additional requirements that are not covered by the Mining Code, such as the protection of marine biodiversity and relevant financial arrangements with respect to the development of resources in deep seabed areas. The Deep Seabed Law also emphasises the importance of international cooperation as well as the peaceful exploitation and certain human rights protection issues, which mirrors the principles established in the Rio+20 UN Resolutions and the Mining Code.

Moreover, words and terms are carefully crafted in China’s Deep Seabed Law and many represent legal innovations from Chinese legislators. For example, unlike other definitions, the Deep Seabed Law does not directly transplant the term “common heritage of mankind” as prescribed in Article 136 of the UNCLOS, but rather has adopted the term “common interests of mankind” derived from the term or concept of “benefit of mankind as a whole” as prescribed in Articles 140(1), 143(1), 149 and 150(i) of the Convention. Article 136, Part XI of the UNCLOS stipulates “the Area and its resources are the common heritage of mankind”, whereas Article 140(1) and 150(i) of the UNCLOS state that “Activities in the Area shall … be carried out for the benefit of mankind as a whole”. It, therefore, signifies that the term “common heritage of mankind” is closely linked with “the Area and its resources”, while the concept of “benefit of mankind as a whole” governs “activities” in the Area. As Article 2 of the Deep Seabed Law provides that the law shall apply to “activities” conducted by Chinese entities in the Area, it is more appropriate to use the term of “common interests” rather than “common heritage”, while not frustrating the well-established international legal status of “the Area and its resources”. However, although “common heritage of mankind” is not specifically articulated in the Deep Seabed Law, the principle of “protection of the common interests of mankind” does not deviate from the common heritage principle under the UNCLOS and is precisely in-line with the Convention. At the same time, it allows more flexibility in applying the Chinese law to more Area activities in the future, such as the sharing and cooperation mechanism of the undefined “deep seabed public platform”.⁵³

Another example is the definitions of “exploration” and “exploitation” (“development” as in the Deep Seabed Law). China’s Deep Seabed Law largely directly incorporates the two definitions given under the ISA Regulations. The only nuanced difference between the two is that the latter has specifically designated the resources as the three kinds of minerals in the Area,⁵⁴ whereas China’s Deep Seabed Law uses a more generic meaning of “resources”.⁵⁵ The intentionally undefined term “resources” has thus left room for further interpretation and clarification, which also provides the law with some flexibility for application.

In summary, this law has enshrined the fundamental spirit of international laws in relation to the exploration and exploitation activities in the Area, and at the same time preserved a flexibility to cater to national circumstances. In view of the growing interest in the development of marine minerals in the deep seabed, both within the limits of a national jurisdiction and in the Area, China’s Deep Seabed Law could serve as an appropriate reference for the follow-up legislative work of other States Parties.

6.2 A Contribution to the Development of International Rules

Second, the law facilitates the legislative work at an international level. The international community is increasingly discussing matters related to the Area, and with a particular focus related to the establishment of supplementary legal rules to UNCLOS. As the 5th pioneer investor of the ISA, China is a major participant in all ISA meetings and is an important opinion leader for the ISA Assembly resolutions. In the past, Chinese delegates have proposed numerous insightful and productive opinions which have helped to shape the overall legal regime of the international law of the sea. It was a major shortcoming that China previously lacked a domestic legislation in relation to deep seabed issues. Therefore, the introduction of the Deep Seabed Law has had immeasurable and far-reaching significance to strengthen China’s discourse in vying for the influence on other countries.

In addition, with its first set of 15-year exploration contracts ending in 2016–2017, there is an urgent need for the ISA to make progress on the development of an appropriate fiscal and legal regime that would allow those contractors, including Chinese contractors, to proceed toward commercial development, while at the same time safeguarding the interests of the members of the Authority as a whole. China’s domestic Deep Seabed Law includes not only the content governing exploration activities, but also establishes the rules relating to developmental activities. These provisions could essentially provide further references for the ISA, and contribute to the relevant rule-making relating to the commercial recovery of mineral resources from the Area.

6.3 Regulating a Sphere of Intense Competition between States

Third, the law evidenced China as a rule-abiding international community member. Most notably, China is now in a position to mediate various conflicting interests between industrialized states and developing countries for the exploration and development of deep seabed resources. China is not the first country with high ambitions in the Area and the deep seabed in general. Since the 1960s, industrialized states such as the United States, the United Kingdom, Germany, Japan and Russia have been conducting regular deep-sea surveys of marine resources. By the early 1980s, the Pacific Ocean deep seabed area, which had the most commercial potential consisting of nearly 2.8 million square kilometres, had almost been divided among these countries who regard their active presence as a legitimate exercise of high seas freedom. In order to challenge excessive maritime claims, the UNCLOS and the 1994 Implementation Agreement have since been ratified by 168 states.

As a developing country, China was granted the largest number of exploration contracts by the ISA. On the other hand, China’s marine technology is rapidly improving and fast approaching the technological level of developed countries. Nevertheless, with China’s rising international influence and its increasing activities in the Area in recent years, it has attracted some criticism voiced as the “deep-sea threat from China”. For example, when COMRA signed the second exploration contract with the ISA in 2011, other developing countries such as India reacted with fierce criticism. Thus, there might be some elements of competition between States with respect to these reactions. The Deep Seabed Law, especially Article 16, has, therefore, addressed the conflict by stating that China supports the construction and operation of a “deep sea public platform” for the purpose of sharing the benefits and knowledge generated from its research focusing on deep sea technology and the exploration of marine resources.

Meanwhile, there is always a fragile balance of interests to accommodate national ambitions to access deep seabed resources and common interests surrounding the exploitation and protection of those marine areas. By adopting the Deep Seabed Law, China pledges its commitment to the peaceful and sustainable utilisation of deep-sea resources with the associated goal of motivating more countries to ratify the UNCLOS agreement and cooperate with the ISA. Moreover, it reinforces China’s stance that all activities in the Area shall be carried out for the benefit of mankind as a whole, while taking into particular consideration the interests and needs of developing States.