Customary Status of the International Seabed Authority: The US Perspective
About the Author: Mr. Mayank Jain is a 3rd year B.A. LL.B (Hons.) student at O.P. Jindal Global University.
Image by Official U.S. Navy Page available here.
Under Paragraph 6 of the United Nations Convention on the Law of the Sea (UNCLOS) Preamble, the area of the seabed is regarded as res communis, i.e., the common heritage of mankind. This essentially means that all resources that can be explored and exploited in the seabed area, like polymetallic nodules and sulphides, are for the benefit of the global community. The 1994 Agreement, which covers the implementation of Part XI of UNCLOS, created the International Seabed Authority (ISA) for this purpose. The ISA was created with the intent to (i) control all forms of exploration and exploitation activities in the seabed area and (ii) protect the marine environment from the harmful effects of deep seabed mining.
The biggest shortcoming of the ISA is the fact that the body to date has only been able to issue exploration contracts; no actual seabed mining activity has taken place. Thus, the regulatory framework envisioned under this body is merely theoretical and is yet to manifest into reality. To conduct deep seabed mining, prior permission must be granted by the ISA. Annex III Art. 3 of UNCLOS sets out two preconditions to conduct deep seabed mining: (i) there must be a State party, and (ii) approval must be taken from the regulatory body. This means that mere signatories are disenfranchised from carrying out mining projects under the UNCLOS regime. Furthermore, Art. 137 of UNCLOS prohibits unilateral seabed mining, thus, making ISA approval mandatory. To fulfil the objective of the common heritage of mankind, Art. 140 of UNCLOS states that the ISA must distribute any financial or other economic benefits derived from the activities in the seabed region to other nations.
Analysing the US Model
This piece primarily aims to analyse the following question: do the rules of the ISA’s mining regime create any legally binding obligations for non-state parties or signatories? Art. 38(1)(b) of the Statute of the International Court of Justice lists international customs as a source of law. The International Court of Justice (ICJ) in the North Sea Continental Shelf case concluded that for a rule to be deemed as customary international law, it must envisage two elements: (i) consistent and wide State practice, and (ii) opinio juris, i.e., following such a rule because it is presumed to create legally binding obligations.
In Eritrea-Ethiopia Claims Commission, the Commission adopted the “nearly universal acceptance” as the standard for determining whether an impugned rule had customary status. The International Law Commission (ILC) has noted that the number of parties to a treaty may be a significant factor in determining whether a particular rule in the instrument reflects customary status. Many States that do not support the regime also argue that deep seabed mining outside the Convention would not only be viable but also not legal. Ever since the implementation of Part XI, there has been overwhelmingly consistent State conduct evidencing prohibition of unilateral seabed mining. This regime has also allowed for all claims regarding seabed mining to be dealt under a centralised system.
Leaving aside the exception of Kosovo, nearly 165 countries have acceded to UNCLOS, around 150 of those countries have ratified the 1994 Agreement, and nearly 30 States sit as observers at ISA. Even the mere observer status is testimony to the fact that these States recognise the existence and the functions to be carried out by ISA. Art. 7(1) of the 1994 Agreement provided for provisional application of the agreement for certain actors including those that were signatories to the 1994 Agreement. The United States of America (US) was also granted this provisional status as it had shown its partial interest in the regime by signing the agreement. The US believed that the 1994 Agreement intended to restructure the mining regime on the free market concept, which is in line with the US narrative that the common heritage of mankind is analogous to private economic activity. However, the failure of the US to ratify the Convention resulted in the expiry of their provisional application on 16 November 1998. The US still actively engages in the working of the ISA as an observer.
The empirical case study of the US helps to answer whether the mining regime has gained customary status. Art. 34 of the Vienna Convention on the Law of the Treaties highlights the sovereign independence and equality of States by stating that a Convention creates no legal obligations or rights for a State which has not consented to such an instrument, i.e., the State is a Non-State Party (NSP). One such NSP is the US which, despite participating heavily in the negotiations leading to the formulation of the UNCLOS, decided not to ratify it due to its apprehensions of a breach of its sovereignty. It is imperative to observe how the US has responded to the guidelines that have been formulated by ISA.
The US has made it clear that the regulatory mining regime that purports the concept of the common heritage of mankind of seabed resources is against the essence of private economic activity. The US enacted the Deep Seabed Hard Mineral Resources Act, 1980 (Act) to explore and exploit seabed mineral resources. The US has granted licenses under the Act to a corporation called Lockheed Martin; however, the company has expressed concerns that it would be unable to carry out any activity in the seabed area because the legal rights of that area are protected under the UNCLOS, which includes the ISA. Even the organisation that administers the Act, US National Oceanic and Atmospheric Administration (NOAA), along with the Department of State have acknowledged the concerns of Lockheed Martin of requiring international security of tenure. Surprisingly, both NOAA and the Department believe that the US would have to accede to the UNCLOS to maintain international security.
The US position became amply clear in 2017 when the time came to renew the mining licenses of the various organisations. NOAA stated that, (i) the purpose of the Act was to allow deep seabed mining activities pending the US ratification of UNCLOS, and (ii) the Act may give organisations rights domestically but not internationally, as the USA fails to go through the internationally recognised process mandated by the ISA for State parties to the UNCLOS. Hence, this creates a dilemma for license holders under the Act, as their legal right does not exist in the real world. This makes it clear that even despite being an NSP, the US has actively regarded the mining regime vis-à-vis the ISA, as an inherently legal obligation. Resultantly, to conduct deep seabed mining, Lockheed Martin holds two contracts through its United Kingdom (UK) subsidiary (UKSRL). This has been possible as the UK is a State party to UNCLOS and State parties do have the power under the Convention to sponsor private corporations to conduct seabed mining activities under the ISA.
An analysis of the US case demonstrates that even NSPs view the ISA regulations to be legally binding. Furthermore, under the US Act, a Deep Seabed Revenue Sharing Trust Fund was created with the intention of sharing the extracted resources with the international community. This Trust Fund fulfils a very similar purpose which is enshrined in the Preamble of the UNCLOS and for which the ISA was created: the common heritage of mankind. Assessing the situation from the viewpoint of the sole NSP, i.e., the US, it can be reasonably assumed that ISA approval when it comes to seabed mining is the non-regression standard. This means that at a point in time if a State adopts any precautionary strategy other than requisite ISA approvals before conducting deep seabed mining, the same would be insufficient and not conform to international standards. The purpose of ISA was never to mitigate all forms of harm that are accrued as a result of deep seabed mining activities but to control and regulate the harm caused to the marine environment.
It is difficult to say that the sole model of an NSP such as the US following ISA regulations is sufficient to prove the customary status of the Authority. Furthermore, the lack of implementation of these contracts by ISA cast a doubt on the legal status of the regime. A question that also requires due consideration is whether States which lack the technological and capital capability to conduct deep seabed mining activity, irrespective of their obedience to the UNCLOS, regard the ISA to have a legal authority. Nevertheless, post the implementation of the ISA contracts in the near future, a clearer picture regarding the customary character of the regime would be carved out. If this mining regime envisaged under the UNCLOS can become a source of law under Art. 38(1)(b) of the Statute of the International Court of Justice, it would be a boon for the protection of the marine environment as well as the industrial sectors dependent on seabed resources.