The High Seas

It is important to differentiate between seabed mining within the territorial waters of nations and seabed mining in the high seas or ‘the Area’ that lie beyond national jurisdictions. In the case of the high seas, seabed mining is governed by United Nations Convention on the Law of the Sea (UNCLOS) and associated Mining Codes and regulated by the International Seabed Authority. Seabed mining applications that fall within a country’s exclusive economic zone (within national jurisdiction) is regulated by that country’s domestic law. The international deep seabed area (the Area), regulated by the International Seabed Authority comprises about 260-million square kilometres compared with 85-million square kilometres of exclusive economic zones.

Seabed mining in the high seas is regulated by a single organization, the International Seabed Authority. Decisions to grant exploration and mining contracts are determined by the Legal and Technical Commission, an organ of the Council of the International Seabed Authority. The commission currently consists of only 24 members, who are elected by the Council for a period of 5 years. The Commission functions include issuing deep sea exploratory and mining licenses, review of applications for plans of work, supervision of exploration or mining activities and the assessment of the environmental impact of such activities.

The Mining Code is the set of rules, regulations, decisions and procedures issued by International Seabed Authority to regulate prospecting, exploration and exploitation of marine minerals in the international seabed area (defined as the seabed and subsoil beyond the limits of national jurisdiction). The Code falls within the general legal framework established by UNCLOS (1984) and the Implementing Agreement (1994) related to deep seabed mining.

The Commission has identified different types of non-living resources and drawn up plans to regulate the development and mining of each. To date, three types of resources have been regulated by the ISA: polymetallic sulfides (seafloor massive sulfides formed at hydrothermal vents); polymetallic nodules (manganese nodules on abyssal plains); and cobalt-rich ferromanganese crusts that form on seamounts. These regulations include the forms necessary to apply for exploration rights as well as standard terms of exploration contracts.

The International Seabed Authority has, at the date, issued exploratory licenses for seabed mining across 1.2 million square kilometres of ocean floor. It has approved 26 deep sea exploration contracts, made up of the following sponsors:

• 14 contractors sponsored by the Asia-Pacific States
• 7 contractors sponsored by Western European States
• 4 contractors sponsored by Eastern European States
• 1 contractor sponsored by the Group of Latin American and Caribbean States.

Seabed mining in the high seas provides a good indication of the nature, status quo and future of seabed mining. The direction of seabed mining in the high seas will have a direct impact on policy directions of nation states. It is thus of concern that holders of exploration contracts suggest that commercial scale seabed mining will be ready to commence within five years, despite major opposition to seabed mining.