![Sample our Engineering & Technology journals, sign in here to start your access, latest two full volumes FREE to you for 14 days]({"type":"image" , "src" : "/sda/5933/TOC-Subject-Sample-2021-Engineering-Tech.jpg"})
Abstract
The current transition period from exploration to exploitation in deep seabed mining (DSM) has witnessed efforts on the part of the international community to draft regulations for the exploitation of mineral resources in the Area. The production of the “Draft Exploitation Regulations” has been a priority theme in recent International Seabed Authority (ISA) sessions. Although discussion in reducing environmental impacts has been central to the progressive instrument, some liability gaps and approaches to close such gaps have not come up with desirable solutions. Against this background, the paper underscores the need for an Environmental Compensation Fund (the Fund) to bridge these gaps under the DSM regime. The paper argues that the three provisions about the Fund envisaged in the Draft Exploitation Regulations fall short of adequate deliberation and operational details. To bridge up the liability gaps, some critical issues in operating the Fund need to be carefully considered regarding the establishment, purpose, contributions, and claims for compensation. The paper suggests that the ISA may take the key elements of existing compensation funds, inter alia, the IOPC Funds to improve the operation and function of this Fund.
Notes
1 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 3 [UNCLOS], article 136.
2 Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea (ISBA/21/A/2, 3 June 2015), paragraph 54.
3 UNCLOS, article 153 (1).
4 UNCLOS, article 153 (2).
5 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Case No. 17, Advisory Opinion (ITLOS Seabed Disputes Chamber Feb. 1, 2011), 50 ILM 458 (2011) [SDC Advisory Opinion], paragraph 200.
6 SDC Advisory Opinion, paragraph 66.
7 SDC Advisory Opinion, paragraphs 178 and 203.
8 Article 253(3) of the UNCLOS stipulates “[w]ith the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall co-operate in… development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds.”
9 SDC Advisory Opinion, paragraph 209.
10 The ISA has been updated its draft exploitation regulations for several versions since 2014. “Draft Exploitation Regulations” in this paper refers to the latest version released by the ISA in March 2019 (ISBA/25/C/WP.1) unless otherwise specified. Regarding ongoing development and updating versions of regulations on exploitation of mineral resources in the Area, see https://www.isa.org.jm/legal-instruments/ongoing-development-regulations-exploitation-mineral-resources-area.
11 A list of knowledge gaps, see ECORYS, Study to Investigate State of Knowledge of Deep Sea Mining, Interim report for the European Commission (28 March Citation2014).
12 UN Doc A/CONF.151/26/Rev 1 vol I, [14 June 1992] 3.
13 UNCLOS, Annex III, article 22.
14 Draft Exploitation Regulations, Annex X, section 7.
15 UNCLOS, Annex III, article 4(4); SDC Advisory Opinion, paragraph 118.
16 SDC Advisory Opinion, paragraph 201. Joint and several liability means a claimant may recover all the damages from any of the liable parties regardless of their individual share of the liability.
17 SDC Advisory Opinion, paragraph 201.
18 SDC Advisory Opinion, paragraph 203.
19 For example, Nautilus Minerals, one of the world’s first seafloor miners, officially went bankrupt in November 2019. See Nautilus Minerals officially sinks, shares still trading at https://www.mining.com/nautilus-minerals-officially-sinks-shares-still-trading/.
20 Draft standard and guidelines on the form and calculation of an Environmental Performance Guarantee developed by the Legal and Technical Commission, https://isa.org.jm/files/files/documents/Environmental%20Performance%20Guarantee%20-Final.pdf.
21 UNCLOS, article 162 (1).
22 1992 Fund Convention originated from the 1971 Fund Convention, which was issued in Brussels, 18 December 1971, in force 16 October 1978, 1110 UNTS 57, amended by Protocol, London, 19 November 1976, not yet in force, 16 ILM 621 (1977); 1984 Protocol, 25 May 1984, not yet in force; 1992 Fund Protocol, 27 September 1992, in force 30 May 1996, IMO LEG/CONF.9/16 [1992 Fund Convention], article 26.
23 SDC Advisory Opinion, paragraph 179.
24 ISA, Rules of procedure of the legal and technical commission, rule 43.
25 1994 Implementing Agreement, Annex, section 9, article 7 (a).
26 ibid.
27 1994 Implementing Agreement, Annex, section 9, article 1.
28 1992 Fund Convention, article 4 (4).
29 SDC Advisory Opinion, paragraph 181.
30 The obligation of flag State is of due diligence specified by the ITLOS in its Advisory Opinion in Case No.21. See ITLOS, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) (2015), ITLOS Reports 2015, No.21 at 4.
31 Brussels International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, in force 19 June 1975, 973 UNTS 3; amended by the 1976 Protocol, 19 November 1976, in force8 April 1981, 16 ILM 617 (1977); 1984 Protocol, 25 May 1984, not in force, 23 ILM 177 (1984); and 1992 Protocol, 27 November 1992, in force 30 May 1996, IMO LEG/CONF.9/15 [1992 CLC]. The 1992 Liability Protocol replaced the 1984 Protocol and entered into force after it had been ratified by at least four states each with not less than 1 million units of gross tanker tonnage (the 1984 Protocol required ratification by six such states). 1992 CLC, article 3(1);1992 Fund Convention, article 10.
32 Convention of 31st January 1963 Supplementary to the Paris Convention of 29th July 1960, as amended by the additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982 (Brussels Supplementary Convention), articles 3(b) and 12. The 1963 Convention and the 1964 Additional Protocol entered into force on 4 December, 1974. The 1982 Protocol entered into force on 1 August, 1991. The 2004 Protocol has not yet entered into force.
33 UNCLOS, article 136.
34 UNCLOS, article 160(2)(e). Regarding the UN scale of assessments, see UN A/RES/73/271.
35 UNCLOS, article 140(2).
36 UNCLOS, Annex III, article 13(1)(a).
37 UNCLOS, article 160(2)(f), (g), article 162(2)(o).
38 SDC Advisory Opinion, paragraph 94.
39 SDC Advisory Opinion, paragraph 87.
40 SDC Advisory Opinion, paragraphs 95 and 96.
41 SDC Advisory Opinion, paragraph 95.
42 SDC Advisory Opinion, paragraph 96.
43 Draft Exploitation Regulations, Schedule, Use of terms and scope.
44 SDC Advisory Opinion, paragraph 179.
45 This is also subject to the development of BBNJ regime.
46 SDC Advisory Opinion, paragraph 179.
47 SDC Advisory Opinion, paragraph 180.