The compromised international legal regime for deep seabed mining and a possible solution from China’s legislative perspective

Abstract

The principle of the common heritage of mankind (CHM principle), as enshrined in Part XI of the United Nations Convention on the Law of the Sea, is the fundamental principle of sharing the resources of the international seabed area. The International Seabed Authority (the Authority) is the international institution that implements Part XI of the Convention and has the dual task of managing the exploration and exploitation of resources in the international seabed area and protecting the marine environment. This article dives into a deep analysis of the problems that have arisen in the course of the development of the sharing mechanism for resources in the international seabed area by the Authority, and further engages in the discussion on China’s domestic legislative strategies for the mechanism for sharing of resources in the international seabed area. It is argued in this article that China’s domestic deep-sea legal regime is an important part of global deep-sea governance, and has the potential to apply a ‘corrective’ function to the ‘institutional misalignment’ that occurs in the operation of the international seabed regime with the aim of promoting the sharing of resources in the international seabed area.

Keywords:

• international seabed area
• common heritage of mankind
• sharing mechanism
• the Enterprise
• China’s legislative strategies
• reserved areas

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 Art 136 of the Convention.

2 The Authority was established on 16 November 1994, under the United Nations Convention on the Law of the Sea, with its headquarters in Kingston, Jamaica, and is primarily responsible for the organisation and control of activities in the international seabed area, in particular the management of international seabed resources.

3 China Ocean Mineral Resources Research and Development Association (COMRA), China Minmetals Corporation (CMC) and Beijing Pioneer High Technology Development Corporation signed exploration contracts with the Authority for polymetallic nodules in 2001, 2017 and 2019 respectively; COMRA also signed resource exploration contracts with the Authority for polymetallic sulphides and cobalt-rich ferromanganese crusts in 2011 and 2014. Hao Shen, ‘Developing China’s Legal Regime for International Deep Seabed Mining – The Present and Future’ (2021) 52(1) Ocean Development & International Law 20

4 Jonna Dingwall, International Law and Corporate Actors in Deep Seabed Mining (OUP 2021) 86–95

5 Aline Jaeckel, Jeff A. Ardron, and Kristina M. Gjerde, ‘Sharing Benefits of the Common Heritage of Mankind – Is the Deep Seabed Mining Regime Ready?’ (2016) 70 Marine Policy 198

6 Art 137, para 2, 153, para 1, 156–185 of the Convention

7 Art 137, para 1, of the Convention

8 Art 140, para 1, 144, 148 of the Convention

9 Art 145 of the Convention is generally considered to be the general enabling provision of the Convention for the adoption of environmental protection control measures by the Authority. Aline Jaeckel, ‘An Environmental Management Strategy for the International Seabed Authority?’ (2015) 30 The Legal Basis, The International Journal of Marine and Coastal Law 93

10 UNGA, UN Doc A/C.1./PV.1516, 1 November 1967, para 8

11 Jennifer Frakes, ‘The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise?’ (2003) 21 Wisconsin International Law Journal 413; A. Kiss, ‘The Common Heritage of Mankind: Utopia or Reality?’ (1985) 40 International Journal 423

12 Arvid Pardo, ‘Law of the Sea Conference – What Went Wrong’ in Robert L Friedheim (ed), Managing Ocean Resources: A Primer (Westview Press 1979) 139

13 Art 170, para 1, of the Convention

14 Art 170, para 2, of the Convention provides that the Enterprise, within the limits of the international legal personality of the Authority, shall have the legal capacity set out in the statute contained in annex IV. The Enterprise shall act in accordance with this Convention, the rules, regulations and procedures of the Authority and the general policies established by the Assembly, and shall be subject to the direction and control of the Council

15 ISBA/24/C/12, Considerations Relating to a Proposal by the Government of Poland for a Possible Joint-Venture Operation with the Enterprise, <https://isa.org.jm/files/files/documents/iba24c-12-en.pdf> accessed 9 January 2023

16 Summary of the Twenty-Eighth Annual Session of the International Seabed Authority (First Part): 16–31 March 2023 <https://enb.iisd.org/international-seabed-authority-isa-council-28-summary> accessed 25 June 2023

17 Art 153 of the Convention, Annex III, Art 8 and 9

18 Regulations 16–20 of the Polymetallic Sulphides Regulations

19 Lu Hao, Interpretation of the Law of the People’s Republic of China on Exploration and exploitation of Deep Seabed Resources (China Legal Publishing House 2017) 67

20 Dingwall (n 4) appendix 2

21 Jaeckel, Ardron and Gjerde (n 5) 201

22 Klaas Willaert, Regulating Deep Sea Mining: A Myriad of Legal Frameworks (Springer 2021) 36

23 ISBA/20/C/18 (9 July 2014), para 13

24 Section II, art 2 of the Annex to the Implementation Agreement

25 Aline Jaeckel, ‘Benefitting from the Common Heritage of Humankind: From Expectation to Reality’ (2020) 35 International Journal of Marine and Coastal Law 660

26 Dingwall (n 4) 144

27 Andrea Bianchi, ‘On Power and Illusion: The Concept of Transparency in International Law’ in Andrea Bianchi and Anne Peters (eds) Transparency in International Law (CUP 2013) 6; UNGA, UN Doc A/Res/66/288 (27 July 2012), para 76, 228, <www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_66_288.pdf> accessed 15 March 2020

28 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447 (Aarhus Convention); Rio Declaration, principle 10

29 Aline Jaeckel, The International Seabed Authority and the Precautionary Principle Balancing Deep Seabed Mineral Mining and Marine Environmental Protection (Brill Nijhoff 2017) 261

30 Jaeckel (n 29) 260

31 Exploitation Regulations (Draft) Article 89

32 Willaert (n 22) 39

33 Jaeckel (n 29) 261

34 Jeff A. Ardron, ‘Transparency in the Operations of the International Seabed Authority: An Initial Assessment’ (2018) 95 Marine Policy 324

35 Zhongfa Ma, ‘On the Improvement of the Legal System of International Technology Transfer in Response to Climate Change’ The Jurist (2011) 5 (in Chinese)

36 Klaas Willaert, ‘The Enterprise: State of Affairs, Challenges and Way Forward’ 131 Marine Policy (2021) 104590

37 Zhiwen Li and Qi Lv, ‘The Harmonization of Ideals and Realities of Technology Transfer Rules in the International Seabed Area’ Political Law Series (2018) 2 (in Chinese)

38 Jiajun Lin and Zhiwen Li, ‘Exploring the Mechanism of Commercialization of Deep-Sea Technology’ (2018) Pacific Journal 7 (in Chinese)

39 Shuming Wang and Guolei Yang, ‘Research Progress on Concepts and Themes of Deep-Sea Govenance: Based on the Interpretation of Deep-Sea Politics and Policy Research Literature’ (2022) 4 Journal of Ocean University of China (Social Sciences) 50–59 (in Chinese)

40 Art 1, China’s DSM Law. See generally for an analysis of China’s DSM Law: Hao Shen, ‘International Deep Seabed Mining and China’s Legislative Commitment to Marine Environmental Protection’ (2017) 10(2) Journal of East Asia and International Law 489; Nengye Liu and Rakhyun E. Kim, ‘China’s New Law on Exploration and Exploitation of Resources in the International Seabed Area of 2016’ (2016) 31 International Journal of Marine and Coastal Law 692; Guobin Zhang and Pai Zheng, ‘A New Step Forward: Review of China’s 2016 Legislation on International Seabed Area Exploration and Exploitation’ 73 Marine Policy (2016) 244

41 Klaas Willaert, ‘Crafting the Perfect Deep Sea Mining Legislation: A Patchwork of National Laws’ 119 Marine Policy (2020) 104055

42 Hao Shen, ‘The Next Step of Devising China’s Legal Regime for Deep Seabed Mining – The Environmental Regulation under China’s Deep Seabed Mining Law’ (2018) 46(3) Coastal Management 210

43 Zitai Zhang, ‘Thoughts on Constructing China’s Legal System for Exploration and Exploitation of Deep Seabed Resources’ (2017) 11 Academic Journal of Zhongzhou 53 (in Chinese)

44 Status of the Draft Regulations on Exploitation of Mineral Resources in the Area and a Proposed Roadmap for 2022 and 2023 <https://isa.org.jm/files/files/documents/ISBA_26_C_44.pdf> accessed 20 February 2022

45 ISBA/28/C/24

46 Shen (n 3) 39

47 Zhang (n 43)

48 Shen (n 3) 32–39

49 In the current (draft) Exploitation Regulations, regulation 11 provides that the Secretary-General shall make the environmental plan (including the environmental impact assessment, the environmental management and monitoring plan and the closure plan) publicly available on the Authority’s website for a period of 60 days and invite written comments from members of the Authority and stakeholders in accordance with the relevant guidelines. This is a significant improvement in the transparency of information provided by the Authority

50 Klaas Willaert, ‘Transparency in the Field of Deep Sea Mining: Filtering the Murky Waters’ (2022) 135 Marine Policy 104840