Mwenda, Kenneth --- "Deep Sea-Bed Mining Under Customary International Law" [2000] MurdochUeJlLaw 18; (2000) 7(2) Murdoch University Electronic Journal of Law

Deep Sea-Bed Mining Under Customary International Law

Author:	Kenneth Mwenda LLB, BCL, MBA, PhD, DBA, FCI, FRSA World Bank
Issue:	Volume 7, Number 2 (June 2000)

Contents

• Introduction
• Salient features of treaty law and customary international law
• The Continental Shelf Convention 1958
• The Law of The Sea Convention 1982
• Practice of The United States of America
• Jurisprudential arguments
• Conclusion
• References
• Books
• Articles

"The recent campaigns against U.S. signature of two major global treaties - one banning landmines, the other establishing the International Criminal Tribunal - are not, in themselves, particularly remarkable. Lamentable, perhaps, but hardly unusual. After all, the Senate has yet to ratify a languishing Law of the Sea Convention that was substantially rewritten by the world just to get us aboard."
Newsletter of the American Society of International Law, Sept.-Oct. 1998, notes from the President, p.1.

Introduction

1. This paper examines the legal basis, if any - under customary international law - of states permitting their nationals to engage in deep sea-bed mining. Much has been said on the developments relating to treaty law on deep sea-bed mining (see for example, Nelson: 1995), yet the position under customary international law remains inconclusive. In this paper, an argument is advanced that there is no right under customary international law for states to make unilateral claims to a right to explore and exploit resources of the sea-bed in the high seas. The 'common heritage of mankind' doctrine, which is postulated under the United Nations Law of the Sea Convention 1982 and a doctrine which enshrines a collective means of exploring and exploiting resources of the sea-bed, must be seen as the guiding principle upon which further developments under international law should proceed.

2. This first part of the paper examines salient features of both treaty law and customary international law. The second part looks at the practice of maritime powers such as the United States of America whilst the third part addresses some jurisprudential arguments on the topic.

   Salient features of treaty law and customary international law

3. For a long time, the bed and sub-soil of the high seas remained free from regulation by multilateral treaties. It was not until the coming into existence of the Law of the Sea Convention 1982 that there was some significant effort by the international community to recognise a regulatory framework to govern exploration and exploitation of minerals in the deep sea-bed. Against this background, it is important to stress that article 2 of the High Seas Convention 1958 provides as follows:

   "The High Seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty."

4. Article 2 sets out the following freedoms of the High Seas:

   (a) Freedom of navigation.
   (b) Freedom of fishing.
   (c) Freedom to lay submarine cables and pipelines.
   (d) Freedom to fly over the high seas.
   

5. Although these freedoms are enjoyable by both coastal states and landlocked states, the High Seas Convention 1958 says nothing about deep sea-bed mining. In spite of this, the international community has not been deprived of multilateral means to regulate deep sea-bed mining. The doctrine of 'common heritage of mankind', as enshrined in the Law of the Sea Convention 1982, can be traced to two important UN General Assembly resolutions. The first of these resolutions was Resolution 2574 (see Brooke 1984: 379, Mashayekhi 1985: 229). This resolution, passed with 62 votes in favour and 28 against (developed states mainly), declared that pending the establishment of an international regime for the deep sea-bed, states and persons, physical or judicial, were bound to refrain from all activities of exploitation of the resources of the sea-bed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction and no claim to any part of that area or its resources were to be recognised.

6. A year later, in 1970, despite the continued disagreement over the kind of regime that was to govern the deep sea-bed, Resolution 2749 of the UN General Assembly was passed (Churchill and Lowe 1988: 180). The General Assembly Committee on Peaceful Uses of the Sea-Bed adopted Resolution 2749 of 17th December, 1970 with 108 votes and 14 abstentions. The abstentions came mainly from the Eastern bloc and this included states such as the Soviet Union. In general, Resolution 2749 contained a declaration of principles governing the seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction. The resolution represented a substantial consensus concerning:

   (i) the area shall not be subject to appropriation by States or by natural or legal persons.
   (ii) an international regime should be created to govern the management of the natural resources.
   (iii) the area shall be open to use for exclusively peaceful purposes.
   

7. Relying on Resolution 2749, a number of developing countries in Africa and Latin America considered the resolution as having declared a moratorium on the exploitation of resources on and in the sea-bed. In a letter dated 29th August 1980, from the Chairman of the Group of 77 to the President of the third UN Conference on the Law of the Sea, it was argued:

   "The Declaration of principles affirms the existence of an international Area free from State Sovereignty, which cannot be subject to appropriation by any means, by States or private persons. This Area constitutes the Common Heritage of Mankind, and its resources must be exploited for the benefit of mankind as a whole and, in particular, of developing countries."

8. Thus, to a large extent, the declaration of 1970 cannot just be reduced to mere representations of the political will of developing countries. Rather, the consensus drawn at the General Assembly continued to attract active compliance by developing countries. Indeed, these countries viewed the declaration as having formed a moratorium on the matter. Hence, the Chairman of the Group of 77 declared in his letter: "The principle of the common heritage of mankind is a customary rule which has the force of a peremptory norm."

9. It is interesting to note that article 53 of the Vienna Convention on the Law of Treaties 1969 defines a 'peremptory norm' (i.e. jus cogens) as follows:

   "...a peremptory norm of general international law is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."

10. Although some publicists have attempted to place peremptory norms into categories, such efforts deal only with the form and not the substance of a peremptory norm. Article 53 of the Vienna Convention on the Law of Treaties 1969 clearly spells out that a peremptory norm is one which does not allow for any form of derogation under international law. Here, the only scope for speculation is on examples of such a norm. Hitherto, we have examined the relevant provisions of the High Seas Convention 1958 and we have examined the two UN resolutions on deep sea-bed mining. We have also addressed the official correspondence from the Chairman of the Group of 77. Further, an analysis was made on jus cogens to see if it applied to deep sea-bed mining. We now turn to examine the relevant provisions of the Continental Shelf Convention 1958.

    The Continental Shelf Convention 1958

11. Article 1 of the Continental Shelf Convention provides that the continental shelf refers to:

    "(a) the sea-bed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of superjacent waters admits of the exploitation of the natural resources of the said areas;
    (b) to the sea-bed and subsoil of similar submarine areas adjacent to the coasts of islands."

12. Unlike the definition of continental shelf found in the Law of the Sea Convention 1982 (art. 76), the definition in article 1 of the Continental Shelf Convention 1958 does not place distance limitations on the outer limit of the shelf. Therefore, under the Continental Shelf Convention, as long as the floor of the high seas adjacent to the territorial sea is exploitable it would be treated as part of the continental shelf. An important implication here is that this definition permits states to claim large parts of the deep sea-bed as part of their continental shelf. For example, the US (which is a party to the 1958 Continental Shelf Convention) declared in the Truman Proclamation 1945 (the proclamation is the formal basis of the term 'continental shelf':

    "the Government of the US regards the natural resources of the subsoil and the sea-bed of the Continental Shelf beneath the high seas but contiguous to the coasts of the US as appertaining to the US, subject to its jurisdiction and control."

13. Indeed, the provisions of the Continental Shelf Convention that have been discussed above replicate the Truman Proclamation of 1945. To what extent, then, does the US continue to write her international law in the corridors of the international community? Or is international law free from the influence of powerful states? It is submitted that the Continental Shelf Convention 1958 provides only for slight deviations from the Truman Proclamation on matters pertaining to rights of coastal states over the continental shelf. The convention grants coastal states sovereign rights, and not jurisdiction, over resources on and in the continental shelf. The absence of any provisions permitting the coastal state to exercise jurisdiction over the continental shelf, in contrast to sovereign rights, is important in that it accommodates the sovereign rights of landlocked states and other coastal states. To illustrate, article 5 of the Continental Shelf Convention 1958 refers to restrictions on unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea or fundamental oceanographic research. Indeed, landlocked states and other coastal states would ordinarily desire to enjoy such rights and the Continental Shelf Convention 1958 provides for their protection.

    The Law of The Sea Convention 1982

14. Culminating from the work of the third UN Conference on the Law of the Sea, which reflects to a large extent provisions of the two General Assembly resolutions that have already been discussed above, article 153 of the Law of the Sea Convention 1982 provides for a legal framework for exploring and exploiting resources on and beneath the bed of the high seas. Activities in the 'Area' are to be organised, carried out and controlled by the 'Authority' which is the competent body in as far as regulating deep sea-bed mining and exploitation of resources is concerned. Article 153(2) permits the 'Enterprise', an organ of the Authority, to exploit and explore resources in the Area. Similarly, state parties to the Law of the Sea Convention 1982, in association with the Authority, and state enterprises or natural or juridical persons which possess the nationality of state parties or are effectively controlled by them or their nationals, when sponsored by such states may exploit the Area in association with the Authority.

15. To strengthen the role of the Authority, article 136 provides that the Area and its resources are the common heritage of mankind. Further, article 137 adds that no state can claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any state or natural or juridical person appropriate any part thereof. Consequently, no such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognised. The same treaty provision further strengthens the common heritage doctrine by providing that all rights in the Area are vested in mankind as a whole, and on whose behalf the Authority shall act. These treaty provisions are not subject to reservations by any state party. Indeed, article 309 of the Law of the Sea Convention 1982 prohibits reservations to provisions of the convention. This means that the doctrine of common heritage applies to all state parties to the convention. In a sense, and given that the doctrine of common heritage of mankind has now acquired the status of a well recognised norm under customary international law, can it not be said that this doctrine - which does not allow derogation (under the Law of the Sea Convention) - is a peremptory norm? What is clear, however, is that under the 1982 Convention the Area and its resources are regarded as common heritage of mankind. As a result, they are both not susceptible to unilateral state appropriation. The Area and its resources can, none the less, be explored and exploited by state parties to the Law of the Sea Convention 1982 in accordance with provisions of the convention; that is, as authorised by the International Sea Bed Authority.

    Practice of The United States of America

16. The US Government has argued, time and again, that deep sea-bed mining is a freedom of the high seas under customary international law (see generally Morell: 1992; see also Kronmiller: 1981). Under this view, the US contends that its nationals enjoy a right of access to seabed minerals and that this right can only be altered by the US's acceptance of a different legal regime through the processes of conventional or customary international law. As Henkin et al (Henkin, Pugh, Schchter, Smit 1993: 1314), observe:

    "Under the law of the United States, a citizen of the United States may engage in activities or exploration for, or exploitation of, the mineral resources of the area of the sea-bed and subsoil beyond the limits of national jurisdiction only in accordance with a license issued by the Federal Government pursuant to law or international agreement."

17. The 1980 Seabed Act of the US affirms that 'it is the legal opinion of the US that exploration for and commercial recovery of hard mineral resources of the deep sea-bed are freedoms of the high seas', but denies any claim to 'sovereign or exclusive rights or jurisdiction over sea-bed minerals'. Instead, the Act treats nodules as analogous to high seas fisheries, title to which has historically rested upon capture.

18. Although the High Seas Convention 1958 does not specify that deep sea-bed mining is a freedom of the high seas, writers such as Morell (see generally Morell: 1992) observe that the US has argued that deep sea-bed mining is a freedom of the high seas under article 2 of the High Seas Convention 1958. Article 2 of that convention provides that every freedom of the high seas must be exercised 'with reasonable regard to interests of other states in their exercise of the freedom of the high seas.' The US has placed greater emphasis on 'reasonableness' here, arguing that deep sea-bed mining is a reasonable use of the high seas. In so doing, the US continues to claim that deep sea-bed mineral exploration and exploitation constitute a reasonable use of the high seas.

19. While deep sea-bed mining is not expressly provided for under the 1958 High Seas Convention, it is certainly not prohibited by that treaty either. In the S.S. Lotus case (cited in almost every standard text on international law), it was held that restrictions on the exercise of maritime jurisdiction must be established 'by the most conclusive evidence.' The US has relied on this position in their interpretation of the High Seas Convention. Similarly, and as will become clearer in the latter parts of this paper, proponents of the legal vacuum theory with respect to deep sea-bed mining have relied on the Lotus case. That said, the US has itself declined to subscribe to the legal vacuum theory, remaining insistent on the interpretation of 'reasonableness' in article 2 of the High Seas Convention 1958 (see generally Morell: 1992).

20. What further strengthens the argument made by the US on unilateral appropriation of resources of the sea-bed is that the US has had some special arrangements made for it come on board the UN Law of the Seas Convention 1982 (see the 1994 Agreement Relating To The Implementation of Part XI of the UN Convention on the Law of the Sea). Indeed, there are now two important routes through which provisions of the 1982 Law of the Sea Convention can be avoided by states that are not parties to the convention. These routes are as follows:

    (i) The first ground of avoidance is the regime on the continental shelf which provides that the shelf extends to a breadth of 200 nautical miles from the baseline from which the territorial sea is measured. This regime permits non-state parties to the Law of the Sea Convention 1982 to claim a greater breadth of the Continental Shelf based on the 'exploitability test' under the Continental Shelf Convention 1958.
    (ii) The legal framework governing the International Sea Bed Authority is only found under the Law of the Sea Convention 1982 and this entails that non-state parties to the convention are not bound by decisions of the International Sea Bed Authority.

    Jurisprudential arguments

21. Publicists such as Garry Knight and Craig Walker (see generally Morell: 1992) have argued that deep sea-bed mining is governed by the legal vacuum theory. This theory promulgates that if there is an occurrence that is not covered by existing international law, then the state affected by this transpiration is free to formulate rules to meet the problems thus created. In this sense, the proponents of the legal vacuum theory assert that:

    (a) the regime of the high seas as a res communis does not provide a sufficiently stable legal basis for extensive development and competing claims,
    (b) the provisions of the Continental Shelf Convention 1958 relating to the definition of the outer limit of the shelf area is in need of clarification.

    As regards the latter argument, the Law of the Sea Convention 1982 provides an option of a 200 miles (that is, breadth wise) Economic Exclusive Zone that may be of the same breadth as the Continental Shelf. However, the alternative option under the 1982 Convention replicates the exploitability criteria under the Continental Shelf Convention 1958.

22. As submitted earlier, states such as the US have declined to subscribe to the legal vacuum theory. Indeed, it would be wrong to say there is a legal vacuum in international law concerning deep-sea bed mining. There is no doubt that the doctrine of common heritage of mankind found under the Law of the Sea Convention 1982 is a refinement of Grotius' principle of res communis of the high seas. Grotuis argued that the sea is and has always been res communis, noting that its legal status was determined by a law derived from nature, 'the common mother of us all, whose bounty falls on all and whose sway extends over those who rule nations.' Morell (see generally Morell: 1992) observes that a reformulation of the Grotian res communis principle would thus emphasise that the oceans, as a collective resource of the world community, may be used freely for any purpose, provided such use does not impair the interests of others users. Where such impairment occurs, use of the sea must be allocated through regulation express or implied, by the international community. It is this reformulation of Grotius' principle that the Law of the Sea Convention 1982 caries.

23. Under the Law of the Sea Convention 1982, in contrast to Morell's view, regulation is not either implied or express, but rather mandatory. In essence, the idea of res communis, the doctrine of common heritage of mankind and the relevant UN General Assembly resolutions (that have already been discussed above) have in a way moulded some form of customary international law. This feature is evidenced by the position of developing states - as we have noted above - in the official correspondence from the Group of 77. Indeed, it is not true to say there is a legal vacuum in the area of deep seabed mining. Even before the Law of the Sea Convention 1982 came into force (in 1994) several states considered themselves already bound by provisions of that treaty. Thus, the principle of res nullius, suggesting that everything in the high seas is open to effective occupation cannot be sustained in the absence of title which has historically vested in the coastal state or the claimant. As Henkin et al (Henkin, Pugh, Schchter, Smit 1993: 1314) observe on the customary international law position applying to non-state parties to the Law of the Sea Convention 1982:

    "... no state may claim or exercise sovereignty or sovereign or exclusive rights over any part of the sea-bed and subsoil beyond the limits of national jurisdiction, or over its mineral resources, and no state or person may appropriate any part of that area."

    Conclusion

24. This paper has argued that there is no right under customary international law for states to make unilateral claims to a right to explore and exploit resources of the sea-bed in the high seas. Although this view was advanced, Henkin et al (Henkin, Pugh, Schchter, Smit 1993: 1314) maintain that:

    "...(b) unless prohibited by international agreement, a state may engage, or authorise any person to engage, in activities of exploration for and exploitation of the mineral resources of that area, provided that such activities are conducted

    
    (i) without claiming or exercising sovereignty or sovereign or exclusive rights in any part of that area, and
    (ii) with reasonable regard for the right of other states or persons to engage in similar activities and to exercise the freedoms of the high seas;

    (c) minerals extracted in accordance with paragraph (b) become the property of the mining state or person."

25. It must be pointed out, however, that the position taken by Henkin et al here is highly characteristic of US ideology and its sympathisers. Without being an apologist, this paper takes strong exception to such bourgeois outlooks. Indeed, developing countries have argued time and again, and in line with the underlying thesis in the study, that there is no right under customary international law for states to make unilateral claims to a right to explore and exploit resources of the sea-bed. These countries have argued without exception - and it can now be admitted - that the doctrine of common heritage of mankind has crystallised into jus cogens, and that any enactment of municipal law by a state to permit its nationals to engage in unilateral deep sea-bed mining contravenes international law. Some superficial cynics will, however, readily warm up to the fact that although customary international law is usually created by state practice, coupled with opinno juris, it is difficult to see what practice there has been in the case of a prohibitive rule. All in all, it is now submitted that:

    (i) Should it always be the US, and its sympathisers, to tell the world what the position is in international law on any matter? But, when will they ever listen?

    (ii) There is no legal justification in customary international law for states to permit their nationals to engage in unilateral deep-sea bed mining. Territorial powers of state sovereignty extend only to the outer limit of the territorial sea but not beyond that maritime zone. Indeed, the coastal state does not have sovereignty over the continental shelf, although it enjoys only sovereign rights therein.

    (iii) Exceptions to the above views are as follows:

    (a) States that have been persistent objectors to the common heritage doctrine (assuming that they can prove that that rule has not yet reached the standard of jus cogens) will not be bound.
    (b) If it can be shown that the doctrine of common heritage has not yet crystsallised into jus cogens, then treaty law can used by states to alter their position in international law e.g. the US can claim parts of the high seas floor and subsoil as part of its continental shelf, making an argument based on the exploitability test under the 1958 Continental Shelf Convention. This means developing countries will be disadvantaged as they often lack advanced technology to exploit resources in areas such as the deep sea-bed.

    (iv) It is proposed that the acceptable way in which to explore and exploit resources of the deep sea-bed is through the International Sea-bed Authority under the Law of the Sea Convention 1982. Under the Law of Treaties Convention 1969, non-state parties to a treaty may accept to be regulated by provisions of a particular treaty, and so states that are not parties to the Law of the Sea Convention 1982 can benefit from the adoption of this position.

* LL.B, BCL, MBA, Ph.D., DBA, FCI, FRSA, Rhodes Scholar, Advocate of the High Court for Zambia, formerly Law Lecturer in the University of Warwick (UK), and presently with the World Bank, Washington D.C., USA. The interpretations and conclusions expressed in the paper are entirely those of the author. They do not necessarily represent the views of the World Bank, its executive directors, or the countries they represent.

References

Books

Churchill R.R. and Lowe A.V., The Law of the Sea, 2nd edition, Manchester: Manchester University Press, 1988.

Henkin L., Pugh R.C., and Smit H., International law: cases and materials, St. Paul, Minnesota: West Publishing Co., 1993.

Luard E., The control of the sea-bed, Heinemann: London, 1994.

Markus S., Common heritage or common burden: the United States position on the development of a regime for deep sea-bed mining in the Law of the Sea Convention, New York: Oxford University Press, 1989.

Morell J.B., The law of the sea: an historical analysis of the 1982 treaty and its rejection by the United States, London: Jefferson NC, 1992.

Patil J.S, Legal regime of the sea-bed, New Delhi: Deep & Deep Publications, 1981.

Articles

Brooke R., "The current status of deep sea-bed mining, Virginia Journal of International Law, Vol. 24, (1984).

Burton S., "Freedom of the seas: International law applicable to deep seabed mining claims," Stanford Law Review, Vol. 29 (1977)

Charnley J., "US Provisional application of the 1994 Deep Seabed Agreement," The American Journal of International Law, Vol. 88 (1994).

Joyner C., "Legal implications of the concept of the common heritage of mankind," International and Comparative Law Quarterly, Vol. 35 (1986).

Mashayekhi M., "The present legal status of deep-seabed mining," Journal of World Trade Law, Vol. 19 (1985).

Oxman B., "The 1994 Agreement and the Convention," The American Journal of International Law, Vol. 88 (1994).

Nelson, L.D.M., "The New Deep Sea-Bed Mining Regime," The International Journal of Marine and Coastal Law, Vol. 10, No. 2, (1995).

Welling C., "Mining of the deep seabed in the year 2010," Louisiana Law Review, Vol. 45 (1985).

Young R., "The legal regime of the Deep-Sea floor," The American Journal of International Law, Vol. 62 (1986).