Deep Seabed Mining: Implications of Seabed Disputes Chamber's Advisory Opinion
Poisel, Tim, Australian International Law Journal
In February 2011, the Seabed Disputes Chamber unanimously adopted an advisory opinion: Responsibilities and Obligations of Slates Sponsoring Persons and Entities with Respect to Activities in the Area. This opinion is significant as it provides guidance on the governance of activities in the Area and clarifies the obligations of a sponsoring state, and its potential liabilities, in circumstances where damage is caused by the activities of the sponsored entity in the Area. Importantly, the opinion sets the highest standards of due diligence for all sponsoring states, irrespective of whether it is a developed or developing state and its financial capabilities. While not absolutely protecting the Area from the risk of environmental harm, the opinion will ensure that deep seabed mining activities operate within strict limits with the aim of preventing harm to the common heritage of mankind.
On 1 February 2011, the Seabed Disputes Chamber ('Chamber') of the International Tribunal for the Law of the Sea ('ITLOS') delivered its first advisory opinion in Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area. (1) The Advisory Opinion represents the first proceedings before the Chamber and the first time that ITLOS has invoked its advisory opinion jurisdiction under art 191 of the United Nations Convention on the Law of the Sea. (2)
The Advisory Opinion is significant because it clarifies the obligations of a sponsoring state, and its potential liabilities, in circumstances where damage is caused by the activities of a sponsored entity in the Area. (3) Despite the fact that exploration activities have been carried out in the Area since at least the mid-19th century, (4) the Advisory Opinion is timely given that the development of new mining technologies and the rising price of minerals may mean that the exploitation of the deep seabed resources will soon be possible and commercially viable.
In addition to the greater likelihood of the deep seabed resources being exploited, the Advisory Opinion is timely and highly relevant and important because of the real risk that harm is likely to be caused to the Area in circumstances where the sponsored state or entity fails to comply with its legal obligations and/or industry best practice. Through the destruction of seabed habitat or the effects of pollution and disposal of waste, it is likely that mining activities will cause harm to marine environments, including affecting protected fish species or marine parks in the vicinity of such activities. The Advisory Opinion confronts the risk of harm by imposing stringent limits on mining activities in the Area with the aim of preventing the risk of harm being caused to the Area. The 'primary reason for this stringency is the recognition by the Chamber of the importance of the Area as a common heritage of mankind.
This article aims to outline the background facts relevant to the Advisory Opinion, the findings of the Chamber and its implications for the effective protection of the marine environment, the exploitation of resources in the Area and the requirement for sponsoring states to adopt appropriate laws and regulations. This is followed by an examination of the adequacy of German legislation relating to deep seabed mining to fulfil a sponsoring state's obligations under international law in light of the findings of the Chamber in the Advisory Opinion.
The International Seabed Authority (ISM') is responsible for organising and controlling activities in the seabed, ocean floor and subsoil beyond the limits of national jurisdiction (known as 'the Area'), particularly with a view to administering the resources of the Area.
The regime for exploration and exploitation of the seabed in the Area is set out in pt XI of the LOS Convention and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea. …