The international community’s responsibility
Doing things betterWith many onshore oil, gas and ore deposits now more or less exhausted, the pressure on offshore resources is increasing. Oil and gas have been produced offshore for decades, and companies began extracting these fossil resources in deep water some time ago. By contrast, ore extraction from the seabed has not yet begun. Disasters such as the Deepwater Horizon oil rig explosion and numerous tanker incidents have highlighted the dangers of offshore oil production and transportation. But onshore too, mining, quarrying and oil production are destroying rainforests and human settlements and polluting soils and rivers. The challenge now is to prevent degradation on this scale from occurring in the marine environment in future by ensuring that marine resource extraction is safe and clean.
Humankind’s most comprehensive treatyThe primary instrument governing the protection of seas is the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS was adopted at the 1982 UN Conference on the Law of the Sea and came into force, after protracted negotiations, in 1994. It is the “constitution for the seas”. The most comprehensive international treaty ever concluded, it establishes rules for all types of use: navigation, fishing, oil and gas extraction, seabed mining, marine conservation and marine scientific research. To date, 165 states and the EU have signed and ratified the Convention. UNCLOS establishes the general obligation for states parties to protect the marine environment, which is then elaborated in more detail in specific regulations for the various types of use. UNCLOS applies in principle to all maritime zones and to all states which, by ratifying the Convention, agree to be bound by this legal regime. However, states’ jurisdiction and powers to implement legislation vary in each of the maritime zones. The following legal zones are distinguished: TERRITORIAL SEA: The territorial sea – the 12-mile zone – is the sovereign territory of the coastal state. Activities in this maritime zone are governed by the laws and regulations adopted by the coastal state. Coastal states that have ratified UNCLOS must ensure that their legislation is in line with its provisions. EXCLUSIVE ECONOMIC ZONE (EEZ): The exclusive economic zone starts at the seaward edge of the territorial sea and extends to a distance of 200 nautical miles (approximately 370 km) from the coastal baseline. The EEZ is therefore sometimes known as the 200 nautical mile zone. The seabed and the water column form part of the EEZ. Unlike the territorial sea, this zone does not form part of the coastal state’s sovereign territory. However, each coastal state has exclusive rights to exploit the natural resources there, such as oil and gas, minerals and fish stocks. Other nations may only exploit these resources with the coastal state’s consent. Re-source extraction in the EEZ is governed by the legis-lation adopted by the coastal state, which must be in line with UNCLOS provisions. For other types of use, particularly shipping, the principle of freedom of the high seas applies in the EEZ as well.
- 4.1 > The United Nations Convention on the Law of the Sea divides the sea into various legal zones, with the state’s sovereignty decreasing with increasing distance from the coast. Every state has a territorial sea, not exceeding 12 nautical miles, which extends from the baseline. In the territorial sea, the sovereignty of the coastal state is already restricted, as ships of all states enjoy the right of innocent passage through it. In the exclusive economic zone (EEZ), which extends for up to 200 nautical miles from the coastal baseline, the coastal state has exclusive rights for the purpose of exploring and exploiting the natural resources, whether living or non-living, of the waters. This means that it is entitled to exploit any oil and gas fields, mineral resources and fish stocks found here. On the continental shelf, which is defined as the natural prolongation of a country’s land territory and may extend beyond the EEZ, the coastal state has sovereign rights for the purpose of exploring and exploiting the natural resources, whether living or non-living, on or under the seabed.
- CONTINENTAL SHELF: The continental shelf comprises the seabed that extends, with a steep or gentle gradient, outward from the coastal baseline and constitutes the natural geological prolongation of the coastal state’s land territory. The continental shelf is of particular economic relevance as it is here that large oil and gas fields, gas hydrates and massive sulphides are found. The “inner continental shelf” has the same spatial scope as the EEZ (200 nautical miles). In some cases, the continental shelf drops to such a depth that it forms part of the deep ocean floor. However, in many parts of the world, there are regions in which an outer continental shelf is geologically identifiable which starts within the EEZ and stretches beyond the 200 nautical mile limit, thereby extending the coastal state’s sphere of influence. The state may apply to establish these extended outer limits of its continental shelf by submitting scientific evidence to the Commission on the Limits of the Continental Shelf (CLCS) in New York. The Commission then makes a binding recommendation on recognition of this outer limit, which may not exceed 350 nautical miles from the baseline. Alternatively, a coastal state may request recognition of an outer limit up to 100 nautical miles seawards – and in some cases even more – from the 2500 metre isobath as the extension of its continental shelf beyond the limits of the EEZ.
Deep sea The deep sea refers to the totally dark layers of the ocean below around 800 metres. On some coasts and continent shelves, the transition from the land to deep sea is so abrupt that a depth of 800 metres or more is reached within the EEZ. The coast of Japan is just one example.
- HIGH SEAS: After the 200 nautical mile limit is the maritime zone known as the high seas. No state may subject any part of the high seas to its sovereignty. The high seas are open to all states. Nonetheless, regula-tions apply to the exploitation of the resources of the high seas. Fishing, for example, is regulated by Regional Fisheries Management Organizations (RFMOs), which set a Total Allowable Catch for individual species. By contrast, just one organization – the International Seabed Authority (ISA) established by the United Nations – is responsible for controlling the allocation and exploita-tion of resources in and on the seabed. The Authority’s jurisdiction extends to all mineral resources of the seabed beyond national jurisdiction, which UNCLOS defines as the common heritage of mankind. In simple terms, then, a distinction can be made between national and international maritime zones. The ISA has jurisdiction over marine mining in international waters, including – at least in theory – oil and gas production. However, oil and gas fields are mainly found in the EEZs, so the extraction of these resources in international waters is not an issue at present.
UNCLOS – a long time in the makingWhereas gas and oil fields are mainly located in the EEZs, high-yield manganese nodules and, to some extent, cobalt-rich crusts and massive sulphide deposits are found in the high seas. Experts often use the term “the Area” to denote the seabed, ocean floor and subsoil in international waters beyond the limits of national jurisdiction. For many years, the allocation of the Area’s seabed resources was a contentious issue for the international community, and this was one of the main reasons why UNCLOS did not enter into force until 1994, 12 years after its adoption by the UN Conference on the Law of the Sea. UNCLOS was conceived in the 1970s, which was a time of great change in two respects. Firstly, with the discovery of extensive manganese nodule deposits in the Pacific, the sea seemed to be a vast repository of natural resources which were there for the taking. Secondly, many former French, British and Portuguese colonies had become sovereign states and were now seeking to cement their political and economic independence, inter alia by asserting their claims to marine resources. Accordingly, in 1982, UNCLOS initially provided for the establishment of an International Seabed Authority (ISA), which in turn was to set up a body, known as the “Enterprise”, to serve as the ISA’s own mining operator. The idea was that benefits would be shared equitably among the various states. Under the Convention, the industrialized countries would share their scientific knowledge and mining technology free of charge for the benefit of all. The former colonies and developing countries ratified UNCLOS immediately, but there were protests from the industrial nations.
- 4.2 > The island state of Nauru is the world’s smallest republic. With an area of around 20 square kilometres, it is roughly twice the size of Capri.
- In subsequent years, the modalities for a future marine mining regime were renegotiated in order to achieve a consensus on UNCLOS. Among other things, the requirement for no-cost technology transfer was dropped, and the establishment of an “Enterprise” was postponed indefinitely. These new rules and amendments were finally incorporated into the 1994 Agreement on Implementation, which supplements the Convention. Today, the rules and regulations contained in the Convention and the Agreement are implemented by three international bodies:
- the International Tribunal for the Law of the Sea (ITLOS) in Hamburg;
- the Commission on the Limits of the Continental Shelf (CLCS), which decides on the extension of individual states’ exclusive economic zones;
- the International Seabed Authority (ISA), which controls seabed mining in the Area.
Clear rules for marine miningThe Convention and the Agreement establish a legal framework formulated in general terms. They do not provide any detailed instructions for practical action. The ISA has thus adopted regulations for each of the three types of mineral resources found in “the Area” – manganese nodules, cobalt-rich crusts and massive sulphides – with detailed provisions on the mining of these resources. At present, these regulations only cover the first two phases of marine mining, i.e. prospecting and exploration. As prospecting merely involves general seismic surveying of the seabed by ship, with minimal ground sampling, prospecting activities simply have to be disclosed to the ISA. Exploration, on the other hand, involves intensive seabed sampling and therefore requires a licence from the ISA. Regulations for commercial exploitation do not exist as yet; a draft regulatory framework for exploitation of manganese nodules is expected in 2016 at the earliest. The absence of a regulatory regime for exploitation is due in part to a number of unresolved environmental issues. Intensive exploration is under way in various areas, and scientists on research vessels are constantly collecting new information about seabed habitats. The findings will feed into the future exploitation regime, which should be in place long before mining of manganese nodules starts. No country currently has any specific plans to begin nodule exploitation. >