Regulating the Natural Resources of the Deep Seabed: An Analysis of the UNCLOS Response to the Global Commons

Abstract

The aim of this paper is to provide an analysis and evaluation of the current legal regime governing the exploration and exploitation of the natural resources of the deep seabed, seen as a response to the existing and new challenges set by the global commons. More specifically, deep-sea mining outside of national jurisdiction is the core focus. First, the study concentrates on the concept of global commons, which, applied to deep seabed mining, helps to distinguish some types of negative externalities: market inefficiencies, overexploitation (in line with the popular “tragedy of the commons”), undesirable private costs and environmental damage, as well as a risk of individual appropriation. For these reasons, the deep seabed, seen as a global commons, calls for international regulation. This paper also explores also the recent interest of this concept for international law. Second, the history and tenets of the Common heritage of mankind – the guiding principle of UNCLOS – are described. Its constitutive elements and its international legal force are discussed, reaching the conclusion that the principle as such has not yet reached the status of rule of international customary law, and that UNCLOS constitutes to this day its most elaborated version in treaty law. The precise regime for exploration and exploitation of the deep seabed as well as the institutional framework set forth by Part XI of UNCLOS are subsequently exposed. It is emphasised that no clear geographical scope can be delineated, that the concrete regime for exploitation of the deep seabed is still missing, together with institutional elements. Third, a critical analysis of the regime is conducted, taking into account the current and new trends and challenges, the sources of criticism in scholarship as well as the theoretical insights about the global commons. Critics concentrate on several aspects of the regime, such as legal uncertainty about the elements of the Common heritage principle (namely non-appropriation, use for peaceful purposes, equitable sharing of benefits and institutional system) or safeguards for the marine environment. After that, it is argued that the current framework can be considered as an overall success, despite the fact that it has lost a good deal of its substance as a result of principled disagreements among the international community, and calls for partial implementation and revision before to be given full effect.