Public participation in the context of deep sea mining: Luxury or legal obligation?

Abstract

Beyond the boundaries of national jurisdiction, the ocean floor and its minerals are governed by a comprehensive international regime, which determines by whom and under what conditions these natural resources can be prospected, explored and exploited. The main principles are set out in the United Nations Convention on the Law of the Sea and the 1994 Implementation Agreement, while more detailed rules are included in specific regulations of the International Seabed Authority (ISA). The ISA has issued rules for the first phases of deep sea mining activities (prospecting and exploration), but has yet to adopt exploitation regulations. A draft version is however being developed and provides a good indication of the current state of play. With regard to transparency and public participation, significant improvements can be identified, but considering the influence of NGOs and their crucial role as watchdogs, the power of third-party stakeholders can still be deemed fairly limited. This article analyzes the existing principles and available options regarding transparency, public participation and access to justice in all phases of deep sea mining activities, identifies the main weaknesses and suggests possible corrections, all the while assessing whether such provisions should be considered a luxury or rather the implementation of an enforceable legal obligation.