Law of the sea and investment protection in deep seabed mining
Pecoraro, A. (2019). Law of the sea and investment protection in deep seabed mining. Melbourne Journal of International Law 20(2): 1-42
In: Melbourne Journal of International Law: Melbourne. ISSN 1444-8602, more
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| Abstract |
An essential feature of the United Nations Convention on the Law of the Sea ('UNCLOS') is the designation of the seabed beyond national jurisdiction (`the Area) as the 'common heritage of mankind', with the creation of the International Seabed Authority (ISA) to allocate mining rights therein. The only private persons that may conclude a contract with the ISA and conduct extractive activities in the Area are those which are sponsored by their state of nationality or control. Currently, among those contractors, there are various corporations owned by nationals from states other than their sponsor. UNCLOS and its related instruments impose certain direct obligations on sponsoring states, including a duty of due diligence to ensure that deep-sea miners respect their own obligations owed to the ISA. This may require the frequent adaptation of national legislation to attain, for example, higher levels of environmental protection. This article suggests that international investment law is relevant to the relation between the contractor and its sponsoring state. Arguably the contractors ' foreign shareholders are investors protected by international investment law, and deep-sea mining activities may constitute, in certain circumstances, an investment in the territory of the sponsoring state. In fact, investment tribunals have flexibly interpreted the investment treaty requirement of territoriality, upholding their jurisdiction over investments that are inclusive of transactions located beyond host state borders. However, it is unclear how international norms protecting investments might be interpreted and applied in the peculiar context provided by the common heritage of mankind. |
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