INSTITUTE OF LAW

NIRMA UNIVERSITY

PUBLIC INTERNATIONAL LAW

CE-III

RESEARCH ARTICLE

on

AN ANALYSIS OF THE LEGAL REGIME FOR DEEP SEABED MINING

UNDER THE UNCLOS

Guided By: Submitted By:

Dr. Chote Lal Yadav Siddhant Sodhia

Assistant Professor 21BAL144

Institute of Law, Nirma University

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 CONTENTS

1. INTRODUCTION………………………………………………..…....………3
2. REVIEW OF LITERATURE ……………………….…………….…………..3
3. RESEARCH PROBLEM……………………………….………….…...…….5
4. RESEARCH METHODOLOGY……………………….………….….…....…5
5. SCOPE ………………………………………………..………………………5
6. OBJECTIVES……………………………………...………………………….5
7. RESEARCH QUESTIONS………………………………...…………………6
8. HYPOTHESIS………………………………………...………………………6
9. ANALYSIS……………………………………………………………………6
a. DEEP-SEA MINING………………………………………....…….…6
b. UN CONVENTION ON THE LAW OF THE SEA………….…….…7
c. LEGAL FRAMEWORK………………………………….……….…..8
d. CURRENT STATE OF DEEP SEABED MINING ACTIVITIES……9
e. CHALLENGES AND OPPORTUNITIES FOR DEEP SEABED
MINING UNDER THE UNCLOS REGIME…………….……...…..10
10. CONCLUSION………………………………..……………………………..12
11. REFERENCES……………………………………………………………….13

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 AN ANALYSIS OF THE LEGAL REGIME FOR DEEP SEABED MINING
UNDER THE UNCLOS.

INTRODUCTION

Half of the planet is covered by the deep seafloor, which is outside of sovereign
jurisdiction. There is a wide variety of precious metals and rare earth elements can be
found there. Beyond the scope of any one country's laws, this article examines the
international legal framework that governs deep seabed mining. The United Nations
Convention on the Law of the Sea established the International Seabed Authority as
an independent international institution to regulate deep seabed mining activities for
the benefit of humanity within this framework. For areas beyond national authority,
the Authority issues mining contracts to States and other entities interested in
exploring and exploiting deep subsurface minerals. This article will provide an
overview of the mining regime now in effect on the deep seabed and the scope of the
associated commercial activity.1

REVIEW OF LITERATURE

1. Ekrem Korkut & Lara B Fowler, Melting Ice and Deep Waters: The United
States and Deep Seabed Mining in the Arctic, Vol. 34 Part 2 Natural Resources &
Environment, 27-30 (2019).2

Ekrem Korkut and Lara B. Fowler mentioned in their article "Melting Ice and Deep
Waters" that Russia used a submarine to plant its flag on the bottom of the Arctic
Ocean in 2007 to claim the potential oil, gas, and minerals below the Arctic ice. The
UNCLOS, which creates a legal framework for the oceans and seas by giving coastal
governments autonomous rights over coastal zones, is not a treaty that the United
governments have ratified. This literature study aims to critically evaluate empirical
evidence on the reasons why American oil companies support UNCLOS ratification,

1
Dingwall, J. (2020). Chapter 7 Commercial Mining Activities in the Deep Seabed beyond National
Jurisdiction: the International Legal Framework. In The Law of the Seabed, Leiden, The Netherlands:
Brill | Nijhoff. Available From: Brill https://doi.org/10.1163/9789004391567_009 [Accessed 24 April
2023]
2
Ekrem Korkut & Lara B Fowler, Melting Ice and Deep Waters: The United States and Deep Seabed
Mining in the Arctic, Vol. 34 Part 2 Natural Resources & Environment, 27-30 (2019).

3
 including how it will help them win bids for the seabed and outer continental shelf.
The outer continental shelf in the Arctic has been the subject of symbolic and actual
claims from Norway, Denmark, and Canada, with the United States continental shelf
potentially reaching 600 miles from the Alaskan baseline. With a focus on the impact
of deep ocean mining and melting Arctic ice on the ecosystem and society, this paper
tries to present a cogent overview of the studies to improve understanding of these
complicated topics.

2. Kartik S Madiraju, Contemplating a Domestic Regulatory and Enforcement

Framework for Deep Seabed Mining, Vol. 34 Part 2, Natural Resources &
Environment, 17-21 (2019).3

According to the article, contemplating a Domestic Regulatory and Enforcement

Framework for Deep Seabed Mining, by Kartik S. Madiraju, given that China has
80% of the world's rare-earth mineral deposits, demand for basic and rare-earth
minerals is anticipated to rise significantly. Since many of the studies to be examined
have advised a policy change to address the problem, EPA, NOAA, the Department of
the Interior, and the U.S. Army Corps of Engineers may all be represented on a
regulatory panel to facilitate consensus-building and pool resources for monitoring
and enforcement.

3. Nadia Bernaz & Irene Pietropaoli, Developing a Business and Human Rights
Treaty: Lessons from the Deep Seabed Mining Regime Under the United Nations
Convention on the Law of the Sea, 5 Business and Human Rights Journal 200–
220 (2020).4

The article "Developing a Business and Human Rights Treaty: Lessons from the Deep
Seabed Mining Regime under the United Nations Convention on the Law of the Sea"
provides information on the negotiations for the proposed BHR treaty by exploring
the deep seabed mining regime under the United Nations Convention on the Law of
the Sea (UNCLOS). It argues that a BHR treaty could contain provisions of UNCLOS
to address state obligations and direct corporate human rights obligations, such as the

3
Kartik S Madiraju, Contemplating a Domestic Regulatory and Enforcement Framework for Deep
Seabed Mining, Vol. 34 Part 2, Natural Resources & Environment, 17-21 (2019).
4
Nadia Bernaz & Irene Pietropaoli, Developing a Business and Human Rights Treaty: Lessons from
the Deep Seabed Mining Regime Under the United Nations Convention on the Law of the Sea, 5
Business and Human Rights Journal 200–220 (2020).

4
duty to exercise human rights due diligence. It also suggests a system for state and
corporate accountability and liability under the future BHR treaty.

RESEARCH PROBLEM

The United Nations Convention on the Law of the Sea (UNCLOS) establishes a legal
framework for mining operations on the ocean floor, but there are still significant
obstacles to achieving environmental sustainability and safeguarding the rights of
affected parties. The viability and efficiency of deep seabed mining activities under
the UNCLOS regime can be improved by analysing the efficacy of the legal regime
and identifying potential policy and legal reforms.

RESEARCH METHODOLOGY

In order to gather the data for the study work, which is based on doctrinal analysis,
both primary and secondary sources were utilized. Regulatory statutes and other legal
sources are examples of primary sources. As examples of secondary sources, consider
journals, books, articles, opinions, and blogs. A thorough analysis of the UNCLOS's
legal system for deep seabed mining can be achieved through the use of a mixed-
methodologies approach, which combines qualitative and quantitative research
methods.

SCOPE

Examine the UNCLOS legal framework for deep seabed mining and its efficacy in
regulating such activities. The analysis would include a review of the licensing and
authorization procedures, financial arrangements, environmental regulations, and
damage liability.

OBJECTIVE

The study's objective would be to examine how well the legal system handles issues
related to deep bottom mining within the UNCLOS regime. The research would also

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try to find policy and legal changes that could make deep seabed mining more
sustainable and effective under the UNCLOS regime.

RESEARCH QUESTIONS

1. What are the key provisions and principles of the UNCLOS that govern deep
seabed mining?
2. What are the licensing and authorization procedures for deep seabed mining
under the UNCLOS?
3. What are the challenges and opportunities associated with deep seabed mining
under the UNCLOS regime?

HYPOTHESIS

Despite the UNCLOS providing a legal framework for deep seabed mining, there are
significant challenges to ensuring environmental sustainability and protecting the
rights of affected parties. These challenges include inadequate environmental
regulations, insufficient financial arrangements, and limited stakeholder participation.
Potential policy and legal reforms that prioritize environmental sustainability,
stakeholder participation, and equitable benefit-sharing can enhance the effectiveness
and sustainability of deep seabed mining activities under the UNCLOS regime.

ANALYSIS

DEEP-SEA MINING

Deep-sea mining refers to the practice of locating mineral deposits at great depths and
then excavating them. About two-thirds of the world's ocean floor is located at depths
greater than 200 meters, making up the deep seabed. Despite mounting evidence that
deep-sea mining threatens marine biodiversity and ecosystems, we lack the expertise
and resources to adequately protect them.

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The United Nations Convention on the Law of the Sea (UNCLOS) established the
regime controlling deep seabed mining outside state jurisdiction "the seabed and
ocean floor and subsoil thereof, beyond the limits of national jurisdiction," as defined
by the UNCLOS, constitutes the Area. The exact boundaries of the Area are still
considered to be "fluid" at this time because many coastal states have not yet
determined the outer boundaries of their continental shelves. The Area may seem
small, but it actually covers about 72% of the ocean's total surface area, or 260 million
square kilometers.

Independent international organisation charged with overseeing a system for deep

seabed mining, the International Seabed Authority (ISA or the Authority) was founded
under the United Nations Convention on the Law of the Sea (UNCLOS). The ISA is
responsible for enforcing the Area's regulations and awarding contracts (or licences)
for mineral exploration and exploitation. Protections for marine life and fair
distribution of benefits are just two of the many noteworthy elements of the regime.
The ISA also has the power to draught a comprehensive Mining Code to augment the
regime and govern all facets of deep seabed mining.

UN CONVENTION ON THE LAW OF THE SEA

Part XI of the United Nations Convention on the Law of the Sea and the 1994
Implementation Agreement to that part of the Convention establish the global legal
underpinning for deep seabed mining and marine studies in the Area. The
fundamental idea that all humans have a shared cultural heritage can be stated in
different ways. Except as provided in Part XI, (1) no State or natural or juridical
persons may claim, acquire, or exercise rights in connection with resources in the
Area; (2) all mining and any minerals recovered may only be separated in accordance
with UNCLOS and the rules used by the Authority; (3) all rights in the resources of
the Area belong to the Authority; and (4) each State shall ensure that it exercises
"effective control" over any activities conducted by its state enterprises in the Area. 5

Adequate protection for the marine environment from the detrimental consequences
of mining-related activities is required by the United Nations Convention on the Law
of the Sea (UNCLOS). The maritime environment must be safeguarded from
pollution and other threats, natural resources must be conserved, and the distinctive
5
MIDAS D8.2_final, (Jan. 19, 2016),
http://eu-midas.net/sites/default/files/deliverables/MIDAS_D8.2_final.pdf.

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flora and fauna of the area must be disturbed as little as possible, according to Article
145 of UNCLOS. National laws addressing pollution from seabed operations in the
Area and under national jurisdiction shall be as effective as international regulations,
standards, suggested practises, and processes, as required by Articles 208 and 209 of
UNCLOS Part XII. All nations have a responsibility to protect the maritime
environment, as stated in Articles 192 and 194.5 of UNCLOS. The existence of
unique and endangered marine species depends on the preservation of uncommon and
fragile maritime ecosystems.

LEGAL FRAMEWORK

The UNCLOS is the major body of international law regulating the use and
administration of the world's oceans. It regulates deep seabed mining and lays down
the rights and duties of governments regarding ocean use. In order to regulate deep
seabed mining in the international seabed area outside state authority, the UNCLOS
creates the International Seabed Authority (ISA), an intergovernmental organisation. 6

LICENSING AND AUTHORIZATION PROCEDURES

The ISA is responsible for issuing licenses for exploration and exploitation 7of
minerals in the international seabed area. The licensing process involves a thorough
review of the applicant's technical, financial, and environmental capabilities to ensure
that the activity is conducted in a sustainable manner. The ISA also requires the
licensee to submit periodic reports on the progress of the activity and its compliance
with environmental regulations.8

FINANCIAL ARRANGEMENTS

The UNCLOS requires that a portion of the financial benefits from deep seabed
mining be shared with the international community. The ISA establishes the royalty
and fee structure for the exploitation of minerals in the international seabed area. The

6
International Seabed Authority, "About ISA," https://www.isa.org.jm/about-isa.
7
International Seabed Authority, "Regulations on Prospecting and Exploration for Polymetallic
Nodules in the Area," ISBA/4/Rev.1, https://www.isa.org.jm/regulations-prospecting-and-exploration-
polymetallic-nodules-area.
8
International Seabed Authority, "Handbook on the Rules and Procedures for the Implementation of
the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area," ISBA/16/C/12,
https://www.isa.org.jm/handbook-rules-and-procedures-implementation-regulations-prospecting-and-
exploration-polymetallic.

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revenues generated from royalties and fees are used to support the ISA's activities and
for the benefit of developing countries that are members of the ISA.9

ENVIRONMENTAL REGULATIONS

Mining operations on the ocean floor must be carried out in a way that does not harm
the ecosystem, under the UNCLOS. To mitigate the ecological risks posed by deep
seabed mining, the ISA has enacted a set of environmental laws. These regulations
require the licensee to conduct environmental impact assessments and develop
environmental management plans to mitigate the impacts of the activity on the marine
environment.10

LIABILITY FOR DAMAGES

The UNCLOS establishes a liability regime for damages caused by deep seabed
mining activities. The ISA has developed guidelines for the assessment of liability for
environmental damages caused by deep seabed mining. The guidelines provide for the
establishment of a claims procedure and a compensation fund to cover the costs of
environmental damages.11

CURRENT STATE OF DEEP SEABED MINING ACTIVITIES

Deep seabed mining activities are currently at an exploratory stage, with several
countries and private companies actively exploring the feasibility of extracting
minerals from the ocean floor. The International Seabed Authority (ISA), established
under the UNCLOS, is responsible for managing deep seabed mining activities in
international waters beyond national jurisdiction. As of 2021, the ISA has issued 30
contracts for exploration of minerals in the deep seabed, covering an area of
approximately 1.5 million square kilometres.

Deep seabed mining has the potential to provide a significant source of critical
minerals, such as cobalt, nickel, and rare earth elements, which are essential for the
production of modern technologies. It could also contribute to the development of
9
International Seabed Authority, "Financing the Work of the Authority," ISBA/22/C/9,
https://www.isa.org.jm/financing-work-authority.
10
International Seabed Authority, "Environmental Management Plan for the Clarion-Clipperton Zone,"
ISBA/25/C/17, https://www.isa.org.jm/environmental-management-plan-clarion-clipperton-zone.
11
International Seabed Authority, "Contract for Exploration for Polymetallic Nodules in the Area,"
ISBA/18/C/17, https://www.isa.org.jm/contract-exploration-polymetallic-nodules-area.

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new technologies and industries, as well as provide economic benefits to countries
involved in the industry.

there are also opportunities for the development of a sustainable deep seabed mining
industry under the UNCLOS regime. The development of new technologies and
practices for deep seabed mining, such as the use of autonomous vehicles and the
potential for the recycling of minerals, could help to reduce the environmental impact
of mining activities. Additionally, there is the potential for the development of
international partnerships and collaborations to promote sustainable mining practices
and ensure the equitable sharing of benefits from deep seabed mining activities
(Gjerde et al., 2016).

CHALLENGES AND OPPORTUNITIES FOR DEEP SEABED MINING

UNDER THE UNCLOS REGIME.

The regulatory framework for deep seabed mining under the UNCLOS regime
presents both challenges and opportunities. While the UNCLOS provides a
comprehensive legal framework for deep seabed mining, there are still gaps in the
regulatory regime that need to be addressed. Zou (2015) notes that the UNCLOS lacks
a comprehensive framework for the protection of the marine environment, particularly
in regard to the regulation of seabed mining activities. 12 This gap is further
highlighted by Lodge and Kunkel (2018), who argue that the UNCLOS does not
adequately address the potential environmental impacts of deep seabed mining.13

Another challenge is the lack of a global regulatory body to oversee and enforce
environmental and safety regulations for deep seabed mining. Currently, the
International Seabed Authority (ISA) is the main regulatory body for the exploitation
of deep seabed resources in areas beyond national jurisdiction, but its jurisdiction and
authority are limited to the regulation of mining activities in the Area. The ISA's
regulatory framework includes environmental and safety regulations, but there are

12
Zou, Keyuan. "Deep Seabed Mining under the United Nations Convention on the Law of the Sea: A
Critical Review." Marine Policy 51 (2015): 259-266.
13
Lodge, Michael W., and Katy R. Kunkel. "The Future of Deep Seabed Mining and the Law of the
Sea." Ocean & Coastal Management 166 (2018): 42-50.

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concerns over its effectiveness in enforcing these regulations, particularly given the
limited resources and capacity of the organization (Bouffard and Morgan, 2017).14

Despite these challenges, there are also opportunities for the development of a
sustainable deep seabed mining industry. The UNCLOS provides a framework for the
equitable distribution of the benefits of deep seabed mining among all states,
particularly developing states (UNCLOS, 1982). Furthermore, the licensing and
authorization procedures established by the UNCLOS provide a mechanism for the
regulation of deep seabed mining activities, ensuring compliance with environmental
regulations (Zou, 2015).15

In order to fully realize the potential of deep seabed mining, however, the regulatory
regime under the UNCLOS needs to be strengthened. Lodge and Kunkel (2018)
suggest the establishment of an independent scientific body to provide guidance on
the environmental impacts of deep seabed mining, while Zou (2015) proposes the
development of a comprehensive framework for the protection of the marine
environment.

CONCLUSION
14
Bouffard, M., & Morgan, J. (2017). Deep seabed mining and the precautionary principle: regulating
the future of the ocean commons. Marine Policy, 84, 193-200.
15
Zou, Keyuan. "Deep Seabed Mining under the United Nations Convention on the Law of the Sea: A
Critical Review." Marine Policy 51 (2015): 259-266.

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In conclusion, the legal regime for deep seabed mining under the UNCLOS is a
complex framework that involves various parties, including the International Seabed
Authority, member states, and mining companies. The UNCLOS provides a
comprehensive legal framework that governs deep seabed mining activities and aims
to ensure the sustainable development of the deep seabed resources. However, the
UNCLOS also faces several challenges and concerns, including the lack of clarity in
some provisions, the potential environmental impacts of deep seabed mining, and the
need to balance the interests of various stakeholders.

Nonetheless, there are also opportunities for deep seabed mining under the UNCLOS
regime, particularly in meeting the growing demand for minerals and metals and
addressing global challenges such as climate change. To maximize the benefits and
minimize the risks of deep seabed mining, it is crucial to ensure effective
implementation and enforcement of the UNCLOS legal regime, promote transparency
and accountability in decision-making, and engage in a comprehensive stakeholder
dialogue.

Overall, the legal regime for deep seabed mining under the UNCLOS is a dynamic
and evolving framework that requires continuous monitoring and evaluation to ensure
its effectiveness and relevance in the changing global context. As such, there is a need
for further research and analysis to inform the ongoing discussions and debates on the
governance of the deep seabed resources and to facilitate the sustainable and equitable
use of these resources for the benefit of present and future generations.

REFERENCES

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