The International Seabed Authority and the Push for Exploitation of Deep Seabed Minerals: Does the Doctrine of Legitimate Expectations Apply?

Abstract

Abstract The International Seabed Authority (or ISA) is nearing a world-first decision: whether to approve, on behalf of humankind, potentially in the absence of regulations, an application for exploitation rights over deep sea minerals. We assess whether an operator, who invested in exploration activities but whose application to mine was refused by the ISA, may successfully take legal action against the ISA based on their ‘legitimate expectations’ to be granted exploitation rights. We find significant obstacles for such a claim. Firstly, the ISA has with contractors a legal relationship that differs from that between sovereign states and foreign investors. Furthermore, exploration contractors assumed the risk of carrying exploration despite knowing that, due to its complex institutional structures, and need to adapt to evolving international norms and new scientific information, the ISA could ultimately decide to proceed in a different direction. Finally, there are sizeable procedural challenges for any prospective claimant against the ISA relying on ‘legitimate expectations’, both in accessing the relevant forum and in identifying an enforceable remedy.