Legal Controversies and Institutional Construction of Deep-Sea Mining within the Framework of International Law of the Sea

Abstract

Use of minerals in the international seabed area (the “Area”) can be deemed one of the most important frontiers in today’s modern international law by virtue of its own value of minerals from the “Area” and conflicting matter of the fragile eco-system of “Area”. Following the United Nations Convention on the Law of the Sea (UNCLOS), The area and its resource were called “the common heritage of mankind”, it will be necessary to create some kind of a system that is effective, fair and is with a sound premise for protecting environment in future. However, while the International Seabed Authority (ISA) is transitioning from regulating exploration to formulating the Mining Code for exploitation, deep-seated legal controversies have arisen. These disputes revolve around how to implement the precautionary principle, how to distribute the financial benefits of equitably, what the gaps in liability for environmental damage are, and what procedural pressure is caused by the so-called “two-year rule”. This paper analyzes these legal controversies, and explores the conflict between the rights of the sponsors and the environmental obligations of the international community. It criticizes the current draft regulations and suggests the reform of the institutions to enhance the ISA’s ability of independent surveillance and to create a tight financial mechanism. By studying in detail the legal framework and the current situation of negotiations, this study believes that a more scientific bottom line that can be legally compliant and based on the spirit of the United Nations Convention on the Law of the Sea needs to be established. The paper finishes with some very specific institutional constructions that can make sure deep sea mining will be able to add to world’s collective lot, and not just its detriment.