DEEP-SEA LAW AND ORDER

Deep-sea mining and defining where state boundaries are drawn at sea are two matters that have kept international lawyers and diplomats busy for decades.

Deep-sea mining as a matter for international jurisdiction has been discussed, debated, and revisited for decades – requiring fresh consideration every time new discoveries and advances are made. Additionally, determining continental shelf boundaries is at times contentious and tricky to negotiate fairly.

Andrew Serdy, Professor of the Public International Law of the Sea at the University’s Institute of Maritime Law, has followed the legal matters throughout his career.

The Deep Seabed Mining Regime

Outlining the Deep Seabed Mining Regime, Andrew said: “It’s a regime that was originally designed about 50 years ago in the expectation that deep-sea mining was imminent – which it turned out not to be. Every few years, it becomes ‘imminent’ once more, and that is happening again now.”

The regime, which was originally drawn up to regulate mining for manganese nodules, relates to international jurisdiction – any mining that occurs more than 200 miles from land, or, alternatively, beyond where the seabed belonging to the continental shelf of a state ends. The International Seabed Authority operates under and oversees the regime.

More recently, the Mining Code has been negotiated, which incorporates three sets of regulations on prospecting and exploration (rules for the production phase are not yet in place) for the three minerals that are of interest to deep-sea miners: seafloor massive sulphides, cobalt crusts, and manganese nodules.

“There are about 30 contracts that various government and private sector bodies have signed with the International Seabed Authority, which governs deep-sea exploration,” said Andrew.

As interest in deep-sea mining grows, the need for an agreement on how profits will be shared is also growing. “Any profits are to be shared between parties to the United Nations Convention on the Law of the Sea, but there is not yet an agreement on a formula for sharing,” said Andrew.

Another issue to be addressed is genetic resources.

“Genetic resources are of almost as much interest as mineral resources,” explained Andrew. “But they weren’t yet known when designing the original regime, and so the International Seabed Authority has no power to regulate the exploration and mining of genetic resources. So, about 15 years ago, the process began towards reaching international agreement on what’s called Biodiversity Beyond National Jurisdiction. In 2017 negotiations started, but there remains a lack of agreement between developed countries and the developing world.”

Continental shelf boundary making

When states are neighbours – either opposite or adjacent – and their continental shelf entitlements overlap, under the law of maritime delimitation it is necessary to draw a boundary to separate them.

“If states are adjacent on land, agreement on where to draw the line out to sea is often simple to reach,” explained Andrew. “But it’s harder when opposite states are separated by water. If they can’t agree a boundary between themselves via a treaty, there is a process by which they can take the matter to an international court or tribunal.”

Since the 1980s, there have been at least a dozen legal cases between pairs of countries deciding their maritime boundaries. Four of these involved continental shelf boundaries going beyond 200 miles from their land territories: Bangladesh and Myanmar; Bangladesh and India; Ghana and Cote D’Ivoire; and Kenya and Somalia.

Andrew added: “There is an interesting case happening at the moment between Nicaragua and Colombia, who are not actually neighbours. Nicaragua has a very long physical continental margin extending to its east, which potentially comes within 200 miles of the Colombian coast – and therefore within Colombia’s exclusive economic zone. The issue is, does the 200-mile entitlement of the nearer state automatically trump the entitlement of the state more than 200 miles away? Arguments on this aspect of their dispute were the subject of a recent hearing before the International Court of Justice, and we eagerly await its ruling.”