UNCLOS and Investor Claims for Deep Seabed Mining in the Area: An Investment Law of the Sea?

Abstract

Foreign capital has increasingly become involved in the exploration for deep sea minerals in the Area. Foreign-owned companies have received the sponsorship of their state of incorporation, as required by UNCLOS to be granted an exploration contract by the International Seabed Authority. Sponsoring states’ policies toward such foreign-owned entities may go further than the mere implementation of UNCLOS obligations by pursuing national objectives such as better environmental protection or greater financial benefits for the local population. However, international law confers certain protections to foreign investment by binding states to respect an international minimum standard of treatment. Various UNCLOS provisions incorporate those guarantees, which could consequently be litigated through the dispute settlement system in Part XI of the convention. Yet, only the contractors’ state of nationality and the Authority have, under the convention, the required standing to do so.