Assessment of Stakeholder Options to Participate in Disputes Over Seabed Mining

Abstract

Exploitative mining in the deep seas is coming, and with it will arrive a new wave of international disputes. Numerous stakeholders will be interested in these disputes, such as those seeking to profit from exploitative mining activity; developing states seeking to benefit from equitable sharing of wealth and lessons learned; and environmentalists all over the world worried about environmental catastrophes that could result from such activity. Stakeholders include the mining contractor, the sponsoring state of the contractor, the International Seabed Authority (ISA) created by the UN Convention on the Law of the Sea (UNCLOS) to control mining activity in the deep seas, states (both states parties to UNCLOS and those that are not) and affected communities, which includes Indigenous peoples and climate activists. However, the dispute settlement system of UNCLOS treats these different stakeholders unequally in terms of whether they may be parties to a dispute proceeding and, if so, what claims they may bring. Unsurprisingly, the system excludes non-states parties and non-state entities (apart from the International Seabed Authority and the contractor), such as Indigenous peoples and climate activists, from serving as parties (claimant or respondent) to a dispute. This essay explores the limited ways in which excluded stakeholders nonetheless may be able to participate in a dispute initiated under UNCLOS. Specifically, they may serve as witnesses, experts, or amicus curiae in proceedings before the International Tribunal for the Law of the Sea (ITLOS), the Seabed Disputes Chamber, or a commercial arbitral tribunal. This essay also advocates for the ISA to establish administrative processes for ongoing monitoring and whistleblower complaints. Such processes would allow excluded stakeholders to submit relevant evidence and information that could—and should—be used in any formal dispute settlement processes initiated by those stakeholders who enjoy direct participatory rights.