Draft:United Nations Law of the Sea: Deep-Sea-Mining Dispute Resolution Procedures:

• Comment: This appears to be written as a manual, news article, or how-to guide. Chetsford (talk) 01:47, 1 January 2024 (UTC)

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Deep-Sea-Mining (DSM) is the process of extracting minerals from the sea floor. There are multiple types of minerals that deep-sea mining targets. The highly coveted elements fall into three categories: polymetallic nodules, polymetallic sulfides, and cobalt-rich ferromanganese crusts. In recent years, there has been an increase in the number of nations and actors obtaining exploration licenses for mining these minerals. The growing desire can be attributed to the uptick in support for the green transition worldwide. Despite the increasing desire for these minerals, deep-sea mining is heavily disputed due to the unknown environmental impacts on seabed ecosystems and marine life. As of January 2023, the International Seabed Authority (ISA), the intergovernmental body that regulates all mineral-resource-related activities in the Area, has issued 31 permits in total for the exploration of polymetallic nodules within the Clarion Clipperton Zone located in the Pacific Ocean.

There are seven permits for the exploration of polymetallic sulfides in the Indian Ocean and five permits granted for the exploration of cobalt-rich ferromanganese crusts in both the Pacific and Atlantic Oceans. There is a growing interest from various actors, including countries and private contractors, who tend to be mostly profit-oriented, in participating in deep sea mining. The participants fall generally into three categories: member states of the ISA, privately funded companies, and publicly funded companies. With the introduction of non-state actors, especially private institutions, the regulation policy for deep sea mining has become more complex. The globalization of deep-sea mining is ubiquitous, as most mineral deposits rest in international waters. Therefore, the legal directives outlined in the United Nations Law of the Sea will play a pivotal role in effectively governing deep-sea-mining activities. The International Seabed Authority is ready to move forward to the exploitation stage, granting contracts to participatory bodies, but a great gap in our knowledge and management of deep-sea mining is ever-present.

The United Nations Law of the Sea

The United Nations Conference on the Law of the Seas (1982) presented a comprehensive legal framework that outlined the proper use of the maritime environment and protection of the sea and seabed. Three subsequent conventions created a space for world leaders to gather and discuss the framework for the treaty. The Convention aimed to lay out the jurisdictional responsibilities and rights of United Nations member states regarding sea governance. The conference lasted for over a decade with many participating countries until 1982, and the treaty was not officially implemented until 1994. Regarding deep-sea mining, the most relevant sections outlined in UNCLOS discuss and clarify the meaning of the 'Area' and establish the legal order of the Exclusive Economic Zones (EEZs).

To fully understand the process and demarcation boundaries of deep-sea mining, UNCLOS defines important maritime boundaries relevant to the industry. Firstly, the Area covers all parts of the ocean, ranging from the seafloor to the water beyond the bounds of coastal states' territory. In addition, the Exclusive Economic Zone is the space of the sea in which coastal states hold sovereign jurisdiction; this includes exploration, exploitation, and other blue economic activities. Through defining the ocean boundaries and subsequent sections, the 1982 Convention provided general outlines for ways to prevent the exploitation of the marine environment. In sum, The United Nations Law of the Sea has established a standing legal order for the governance of the oceans, with the primary objective of developing peaceful use of the sea. The treaty reflects a unified front from member states on the acceptable management and use of the ocean. As of May 2023, 168 countries and parties of the European Union (EU) have ratified the document.

Another takeaway about deep sea mining interaction with other maritime industries was the concept of 'due regard.' The concept of due regard essentially states that when states act within maritime space, they must show a certain level of respect for other coastal states and maritime industries. Connecting the Articles that consider the general principles, it is important to highlight the relationship between broad ocean governance and more specific definitions pertinent to deep-sea mining. The concept of due regard may present potential shortcomings for effective ocean governance, especially in the contemporary deep-sea mining industry. Concerning due regard in relation to submarine cables, it contends that during the process of laying submarine cables, cable contractors and coastal states should have due regard for cables that have been previously established. Considering these articles, the ratifying member states have agreed that submarine cables are vital infrastructure. However, the mentioned mediations only apply to areas within territorial jurisdiction or the Exclusive Economic Zone, making the prospect of governing within international waters unclassifiable. Two significant concerns arise out of the vague ideas surrounding international governance. First, what is the process for classifying actions under the sentiment of due regard? Due to geography and direct access to the ocean, coastal states bear significantly more protections than private contractors, as outlined in the United Nations Law of the Sea and International Seabed Authority's Mining Code. This presents a shortcoming within the governing documents. Because of this, a nuanced examination of this may be beneficial, as an analysis could provide clarity surrounding what actions fall within the framework of due regard. Again, this consideration is crucial as it is predictable that a coastal state would claim another actor operating within their EEZ or territorial zone showed due regard, but the contrary body would disagree and claim they did. This situation could be applied within the context of passing through and in terms of the breakage of a submarine cable or a more complex situation, such as a multilateral deep-sea mining treaty. Secondly, a pressing issue within maritime geopolitics is that disputes regarding deep-sea mining do not occur within maritime boundaries. The agreement in the United Nations Law of the Sea is that coastal states' territorial boundaries can extend up to 12 nautical miles off their coastline. Despite this largely welcomed standard, there are some instances where established maritime boundaries are not accepted. For example, the People's Republic of China (PRC) nine-dash line or, as Taiwan knows it, the eleven-dash line in the South China Sea. China has set demarcation lines that they claim are within their jurisdiction; however, after consulting UNCLOS, it is apparent that those claims need a legal basis, as they infringe on the Exclusive Economic Zone of Taiwan, Vietnam, Indonesia and Malaysia. Given the imposing nature of China, the nine-dash line and its implications are still being determined within international contexts. Within the sphere of deep-sea mining, China has set itself a goal to be a forceful power within the industry. Reflecting on China's recent behavior surrounding the nine-dash line and desire for aggressive control of the deep-sea mining market, it could result in physical confrontations and contract interpretation issues. Most importantly, this situation serves as an example of what could occur around the globe without establishing regulations to look at if a dispute arises over a tense geopolitical issue with a previous history of political tension. Ultimately, because of the lack of regulations surrounding protections for independent companies, participants may be hesitant to negotiate or enter contact with the ISA due to a lack of legal protection. Not to mention, without proper regulations, the potential for disputes regarding the misinterpretation of the ISA contracts and the United Nations Law of the Sea rises.

Submarine Cables and Deep-Sea Mining

Submarine cables extend from land points throughout the water and connect to another land-based position. The first transatlantic submarine was constructed and used during the late 19th century. Since then, the applicability and technology surrounding these cables have increased exponentially. The legislation prescribed in UNCLOS 1994 issues an extensive framework for properly managing subsea cables and has since been developed extensively. Considering specific directives within UNCLOS, the historical theory of the freedom of the seas remains extremely relevant. Preceding the introduction of UNCLOS, contractors and countries have freely laid submarine cables due to their rights inside territorial waters. Following the implementation of stricter maritime boundaries, the rise of the blue economy, and the introduction of EEZs, countries saw a further incentive to lay cables to participate in the digitized realm. Despite substantial legislation surrounding the submarine cable industry and cable owners, there is a lack of consideration from other emerging maritime industries regarding the correct treatment and regard for subsea cables. Other emerging sectors need to consider the intersection with other industries. Before the prospect of deep-sea mining, maritime industries such as shipping and fishing had done dramatic damage and caused serious breakage to subsea cables due to carelessness or improper legislative steps. This has created uncontrolled space for commercial enterprises or countries with profit-based incentives to interfere thoughtlessly with subsea cables. This behavior creates a geopolitical threat as significant industries require proper legal guidance. Submarine Cables — Deep-Sea-Mining: One of the most significant geopolitical threats to submarine cables is the prospect of deep-sea mining. Submarine cables are regulated by the International Cable Protection Committee (ICPC), a non-profit organization founded to protect subsea cables internationally. Due to its non-governmental position, the ICPC cannot impose mandates on countries or independent actors regarding proper care for submarine cables. In addition, the contracts currently being granted for deep-sea mining by the International Seabed Authority only narrowly consider the directives of the International Cable Protection Committee and do not examine the risk that the mining contracts could pose to submarine cables. Submarine cables remain the most reliable and efficient way of transferring electronic information around the globe and are vital infrastructure. The undersea cable management and maintenance process is currently controlled fully by private entities. Therefore, several legal issues arise due to the ambiguity surrounding the cables' construction, repair, and ownership. The United Nations Law of the Sea addresses the needed protection for submarine cables. However, neither the International Seabed Authority nor private companies were involved in the writing processes, making it difficult to discern who should bear the responsibility for maintenance and repair costs. Because member states do not feel the direct impact of the responsibility of managing submarine cable use, the heavy reliance on them often goes underappreciated. It has been noticed that undersea cables can break due to physical causes such as fishing, tsunamis, and underwater earthquakes. However, a threat that needs to be adequately considered is the additional physical threat of deep-sea mining. As of November 2023, the ISA has conducted an informal working group on protecting and preserving the marine environment. Regarding test mining, various ministers discussed the prospect and necessity for experimental deep-sea mining to scope out where deep-sea mining could go forward. Participatory members noted that consultation with submarine cable contractors was necessary because existing cables could only be accounted for with coordination and risk damage.

Dispute Resolution Procedures for Deep-Sea Mining

Considering the current dispute settlement procedures under the United Nations Law of the Sea, the structure follows the mainstream form of international law, sui generis, meaning to each their own kind. The Convention worked to account for the disputes that could potentially arise, and this section asserts that the Convention is responsible for settling any dispute between the participatory entities that could not be rectified independently. The United Nations Law of the Sea provides:

the options of a hearing in the International Tribunal for the Law of the Sea the International Court of Justice (ICJ) an ad hoc arbitration a special arbitral tribunal

Dispute Resolution Procedures: Deep Submarine Cables vs. Deep-Sea Mining

Consider a possible dispute when a state is engaged in deep-sea mining on the high seas but then directly damages or breaks a submarine cable laid within the EEZ of a sovereign coastal state. After accounting for this dispute, it is clear the dispute resolution does not adequately account for both sides and that this is a one-sided resolution procedure because it is only relevant to the coastal state and its activities. Therefore, a coastal state could not claim against another state or entity operating on the high seas, regardless of the damage it caused within its Exclusive Economic Zone. In addition, if a coastal state were to cause damage or show poor conduct in an area not classified as an EEZ. Due to the weak dispute resolution procedures enacted in UNCLOS, it is unclear whether a dispute resolved independently by the entities or by the procedures under UNCLOS fully account for which states should be held accountable. Another area for improvement with the limited jurisdiction framework surrounding deep-sea mining about submarine cables is the existing complexity of the submarine cable industry. The United Nations Law of the Sea has allowed all states to lay submarine cables. However, most of the cables constructed are owned by private companies, making it more difficult to trace the cable's routes across the ocean and producing challenges for predicting outcomes with deep-sea mining and the location of sediment plumes. This makes it difficult for intergovernmental agencies, like the ISA, to access them. Submarine cable contractors should make their respective cable paths widely available so private mining companies can access the information to ensure the best safeguarding measures possible if deep-sea mining goes ahead. Due to the contemporary practice of deep-sea mining, it will require flexibility within the industry to adjust its practice.

International Seabed Authority Legislative Actions

The International Seabed Authority has yet to solidify or publish regulations concerning exploiting mineral categories relevant to the current exploration processes. The ISA has three acting bodies: the Legal and Technical Commission (LTC), the Council, and the Assembly. Working together, these groupings must formulate and present drafts of regulations, conversing in hopes of producing legislation that accounts for all entities who wish to participate in deep-sea mining. There have yet to be agreed on environmental standards across the industry for deep-sea mining or how the ISA will effectively consider and grant exploitation contracts to deep-sea miners. The United Nations Law of the Sea relies on the ISA to create adequate measures to ensure granted exploitative contracts account for and uphold environmental, technical, and financial standards. Contrarily, the ISA recognizes its responsibility but needs to catch up in composing an adequate framework while simultaneously bearing the responsibility to UNCLOS.

What could be done to produce a more robust regulatory framework and enhance resolution procedures?

As previously mentioned, the Convention provides a two-tier judicial system. The reason for the establishment is to account for all dispute procedures. The first tier is when parties settle their dispute independently through conciliation. If the parties fail to do this, both participants must submit to the dispute their choice of dispute procedure. If the cases are settled independently by those partaking, it may result in a settlement being reached that does not follow the United Nations Law of the Sea as closely as it should, resulting in variation of the resolutions. This could be detrimental as severe environmental offenses could occur and be overlooked. That is not to say UNCLOS' judiciary is without its shortcomings. It is also subject to significant limitations during dispute settlement procedures. Firstly, it should be compulsory that an independent tribunal hear all dispute cases, regardless of whether state parties previously settled them. This is because in major maritime industries, such as deep-sea mining, the consequences for settling incorrectly or partially are unprecedented, especially concerning environmental harms. Therefore, a secondary court's requirement for disputes to be considered would provide uniform outcomes and the highest level of environmental protection when considering deep-sea mining. In addition, there are numerous gaps in the current dispute settlement process.

Specifically, consider the relationship between the International Seabed Authority and independent bodies. Despite this, no adequate or existing dispute settlement procedures can be used when maritime industries collide. This is because a dispute resolution procedure situation that concerns the preservation of the ocean beyond the national jurisdiction of coastal states is not written within the United Nations Law of the Sea. In regards to deep-sea mining, it should be clarified who will take ownership for potential environmental damage caused to the ocean and seabed and who should take responsibility for damage or breakage of a sea cable. Finally, a foundational framework that addresses the intersectionality of the multi-functionality of the ocean should be established.