A potential conflict may arise in the case of natural resources lying across limits
of national jurisdiction, i.e. bordering both maritime spaces of the continental shelf
and the Area. Art. 142 UNCLOS specifies that “activities in the Area, with respect to
resource deposits in the Area which lie across limits of national jurisdiction, shall be
conducted with due regard to the rights and legitimate interests of any coastal State
across whose jurisdiction such deposits lie”.
71 In such scenarios, the Convention
would favor coastal states, not the international community. This is the view
espoused by the authoritative Virginia Commentaries to UNCLOS, according to
which coastal state rights and jurisdiction over the resources of the continental shelf
have primacy over those of the Area.
72 That problem would only exist in the case of
shared reservoirs of hydrocarbons, which occur beneath the seabed and generally
respect no artificial boundaries, whereas minerals such as polymetallic nodules or
sulfides occur on the ocean floor and allow for a more accurate division prior to
exploitation.
On the issue of environmental protection standards, although the standards to be
adopted by the ISA may be used as parameters for coastal states, nothing in the
Convention impedes coastal states from adopting stricter standards for authorizing
and monitoring exploitation of outer continental shelf resources. The question is,
however, whether coastal states can adopt less protective standards to the outer
continental shelf than those in place for the Area. These questions are answered on a
superficial manner in this item, as a following chapter will dwell into the specificities
of coastal state jurisdiction over the outer continental shelf.
In case an environmental damage originates from activities in the Area, the
coastal state may seek compensation, but not from the ISA, as it enjoys immunity
from legal process in the territory of parties to the Convention.
73 The respondent will
likely be the contractors operating the mining field, and, under specific circumstances, the respective sponsoring states. The latter have the obligation of due
diligence to ensure compliance by sponsored contractors with the terms of the
contract and the provisions of the Convention, among which environmental protection rules of Parts XI and XII. Liability emerges for the sponsoring state provided it
failed to fulfill its duties under the Convention, namely the obligation to take national
measures to supervise and enforce the activities of sponsored contractors.
74 On their
side, contractors assume the risks of deep-sea operations and are the first in line for
compensation in the aftermath of an environmental harm.
71 Art. 142, UNCLOS, on the rights and legitimate interests of coastal states.
72 Nordquist et al. (2002), p. 947.
73 Art. 177, UNCLOS, on the privileges and immunities of the Authority, stipulates that “to enable
the Authority to exercise its functions, it shall enjoy in the territory of each State Party the privileges
and immunities set forth in this subsection”. Among the immunities held by the ISA in face of states
parties is the immunity from legal process, as affirmed by Art. 178 UNCLOS.
74 ITLOS Responsibilities and obligations of States sponsoring persons and entities with respect to
activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber),
Advisory Opinion, 1 February 2011, ITLOS Reports 2011, at 11, para. 242.
5.3 The Outer Continental Shelf and the Area
125
of national jurisdiction, i.e. bordering both maritime spaces of the continental shelf
and the Area. Art. 142 UNCLOS specifies that “activities in the Area, with respect to
resource deposits in the Area which lie across limits of national jurisdiction, shall be
conducted with due regard to the rights and legitimate interests of any coastal State
across whose jurisdiction such deposits lie”.
71 In such scenarios, the Convention
would favor coastal states, not the international community. This is the view
espoused by the authoritative Virginia Commentaries to UNCLOS, according to
which coastal state rights and jurisdiction over the resources of the continental shelf
have primacy over those of the Area.
72 That problem would only exist in the case of
shared reservoirs of hydrocarbons, which occur beneath the seabed and generally
respect no artificial boundaries, whereas minerals such as polymetallic nodules or
sulfides occur on the ocean floor and allow for a more accurate division prior to
exploitation.
On the issue of environmental protection standards, although the standards to be
adopted by the ISA may be used as parameters for coastal states, nothing in the
Convention impedes coastal states from adopting stricter standards for authorizing
and monitoring exploitation of outer continental shelf resources. The question is,
however, whether coastal states can adopt less protective standards to the outer
continental shelf than those in place for the Area. These questions are answered on a
superficial manner in this item, as a following chapter will dwell into the specificities
of coastal state jurisdiction over the outer continental shelf.
In case an environmental damage originates from activities in the Area, the
coastal state may seek compensation, but not from the ISA, as it enjoys immunity
from legal process in the territory of parties to the Convention.
73 The respondent will
likely be the contractors operating the mining field, and, under specific circumstances, the respective sponsoring states. The latter have the obligation of due
diligence to ensure compliance by sponsored contractors with the terms of the
contract and the provisions of the Convention, among which environmental protection rules of Parts XI and XII. Liability emerges for the sponsoring state provided it
failed to fulfill its duties under the Convention, namely the obligation to take national
measures to supervise and enforce the activities of sponsored contractors.
74 On their
side, contractors assume the risks of deep-sea operations and are the first in line for
compensation in the aftermath of an environmental harm.
71 Art. 142, UNCLOS, on the rights and legitimate interests of coastal states.
72 Nordquist et al. (2002), p. 947.
73 Art. 177, UNCLOS, on the privileges and immunities of the Authority, stipulates that “to enable
the Authority to exercise its functions, it shall enjoy in the territory of each State Party the privileges
and immunities set forth in this subsection”. Among the immunities held by the ISA in face of states
parties is the immunity from legal process, as affirmed by Art. 178 UNCLOS.
74 ITLOS Responsibilities and obligations of States sponsoring persons and entities with respect to
activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber),
Advisory Opinion, 1 February 2011, ITLOS Reports 2011, at 11, para. 242.
5.3 The Outer Continental Shelf and the Area
125