protection of the marine environment
38 and the conduct of marine scientific
research.
39
UNCLOS could not possibly regulate in full detail matters pertaining to the
protection and preservation of the marine environment in the Area, as the extent of
technical methods and challenges associated with ocean mining were unknown at
the time of its conclusion. For this reason, the ISA was given the task to adopt
appropriate rules, regulations and procedures to fulfil its mandate.
40 The recent
developments at the ISA in respect of the so-called “Mining Code”,
41 including
the Exploitation Regulations and, eventually the Environmental Regulations and the
Seabed Mining Directorate Regulations, demonstrate the important role of this
international body in international rule-making.
In discussing the current state of the law in regard to conservation and sustainable
use of the oceans in areas beyond national jurisdiction, we cannot ignore the
importance of the 2011 Advisory Opinion by the Seabed Disputes Chamber of the
International Tribunal for the Law of the Sea on the responsibilities and obligations
of States sponsoring persons and entities with respect to activities in the Area.
42
Some considerations in that advisory opinion have made their way to the draft
regulations and will continue to provide useful clarifications in the future, including
on notions related to liability and attribution.
43
However, concerns may arise as to liability and compensation in cases of
transboundary damage arising in the Area and moving to national jurisdictions, or
vice versa. This goes well beyond the environmental risks of the mining activity
itself, and includes all hazards associated with transport and mooring of mining
equipment to the harvesting site, and those related to the processing of minerals and
waste management. As the risks are diverse and the potential damage may be
indiscriminate, different legal regimes, both in terms of maritime zones and of
uses of the ocean, may have a role to play.
Such concerns are also present in the specific case of the continental shelf beyond
200 nautical miles. There is a delicate balance to be struck between conservation and
sustainable use, particularly given that sovereign rights over the resources of the
continental shelf beyond 200 nautical miles do not include rights over the water
column above. Coastal States parties to UNCLOS have invested a significant amount
of resources when preparing submissions to the Commission on the Limits of the
Continental Shelf.
44 The international community, through the United Nations and,
specifically, the United Nations Office of Legal Affairs, has provided the
38 Art. 145, UNCLOS.
39 Art. 143(2), UNCLOS.
40 Art. 145, UNCLOS.
41 See http://www.isa.org.jm/mining-code.
42 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion,
1 February 2011, ITLOS Reports 2011, p. 10.
43 See, e.g., Tanaka (2013).
44 See http://www.un.org/Depts/los/clcs_new/clcs_home.htm.
17 The Conservation and Sustainable Use of the Ocean in Areas Beyond National. . .
329
38 and the conduct of marine scientific
research.
39
UNCLOS could not possibly regulate in full detail matters pertaining to the
protection and preservation of the marine environment in the Area, as the extent of
technical methods and challenges associated with ocean mining were unknown at
the time of its conclusion. For this reason, the ISA was given the task to adopt
appropriate rules, regulations and procedures to fulfil its mandate.
40 The recent
developments at the ISA in respect of the so-called “Mining Code”,
41 including
the Exploitation Regulations and, eventually the Environmental Regulations and the
Seabed Mining Directorate Regulations, demonstrate the important role of this
international body in international rule-making.
In discussing the current state of the law in regard to conservation and sustainable
use of the oceans in areas beyond national jurisdiction, we cannot ignore the
importance of the 2011 Advisory Opinion by the Seabed Disputes Chamber of the
International Tribunal for the Law of the Sea on the responsibilities and obligations
of States sponsoring persons and entities with respect to activities in the Area.
42
Some considerations in that advisory opinion have made their way to the draft
regulations and will continue to provide useful clarifications in the future, including
on notions related to liability and attribution.
43
However, concerns may arise as to liability and compensation in cases of
transboundary damage arising in the Area and moving to national jurisdictions, or
vice versa. This goes well beyond the environmental risks of the mining activity
itself, and includes all hazards associated with transport and mooring of mining
equipment to the harvesting site, and those related to the processing of minerals and
waste management. As the risks are diverse and the potential damage may be
indiscriminate, different legal regimes, both in terms of maritime zones and of
uses of the ocean, may have a role to play.
Such concerns are also present in the specific case of the continental shelf beyond
200 nautical miles. There is a delicate balance to be struck between conservation and
sustainable use, particularly given that sovereign rights over the resources of the
continental shelf beyond 200 nautical miles do not include rights over the water
column above. Coastal States parties to UNCLOS have invested a significant amount
of resources when preparing submissions to the Commission on the Limits of the
Continental Shelf.
44 The international community, through the United Nations and,
specifically, the United Nations Office of Legal Affairs, has provided the
38 Art. 145, UNCLOS.
39 Art. 143(2), UNCLOS.
40 Art. 145, UNCLOS.
41 See http://www.isa.org.jm/mining-code.
42 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion,
1 February 2011, ITLOS Reports 2011, p. 10.
43 See, e.g., Tanaka (2013).
44 See http://www.un.org/Depts/los/clcs_new/clcs_home.htm.
17 The Conservation and Sustainable Use of the Ocean in Areas Beyond National. . .
329