Ochoa: Contracts on the Seabed

Christiana Ochoa (Indiana Univ., Bloomington - Law) has posted Contracts on the Seabed (Yale Journal of International Law, forthcoming). Here's the abstract:

Four million square kilometres of seabed within the sovereignty of Pacific Island nations are currently under contract for mineral exploration or exploitation. Over a million additional square kilometres of the non-sovereign seafloor are licensed for such use. Historically, these licenses have served to establish “squatters’ rights” in anticipation of a distant future when the industry would develop the machinery to exploit oceanic mineral wealth. That moment has arrived, with the first seafloor mining machines rolling off production lines in 2015-2016. Indeed, but for failed financing, the first seabed mine would now be operating in the territorial ocean waters off the shores of Papua New Guinea.

Governance mechanisms have not kept pace with the scientific and industrial innovation. Few countries have developed laws, regulations, or even voluntary agreements governing this activity, and none adequately address the known effects of seafloor mining or provide contingency plans for the unknown and currently unknowable effects of this new technology. Local communities and civil society organizations in the South Pacific have called for outright bans on the activity, fearing grave and unpredictable harms to the marine environments with which they have vital economic and societal relationships. Governments, too, are scrambling. While some have called for moratoria, and a few have been moving at top speed to enact seabed mining legislation, most governments contemplating seabed mining have failed to enact anything. They have not declared a moratorium, nor have they enacted legislation or created the statutory, regulatory and administrative structures necessary to support seafloor mining, and to mitigate potential harms.

This article addresses the urgent need for strong contracts between governments that plan to allow seabed mining as a path to economic development and the companies interested in accessing the valuable natural resources on the seabed within these countries’ sovereign control. Especially for countries with little experience with land based mining, or with thin regulatory infrastructure for seabed mining, such contracts will be indispensable in ensuring that countries considering permitting seabed mining receive the economic benefits they have been promised, while also safeguarding the ocean on which the countries and their populations traditionally rely for their well-being.