Teodora IACOB*
University of Bucharest, Tilburg University
Abstract: This paper examines the liability of States sponsoring deep-seabed mining activities in areas beyond national jurisdiction under the framework of the United Nations Convention on the Law of the Sea, touching upon its parallel nature to the liability of the sponsored contractor. The clarification of the liability regime for deep-seabed mining operations is crucial given the growing interest in their commencement and the associated legal, environmental, and governance challenges. The research builds upon the relevant provisions of the Convention and their interpretation as outlined in the 2011 Advisory Opinion of the Seabed Disputes Chamber. For these purposes a doctrinal legal research approach was utilised. The article concludes that the liability of Sponsoring States – which have both procedural and substantive obligations in this field – is fault-based and secondary to that of the sponsored entities. The analysis also highlights the need for a strict liability regime for contractors, which would eliminate the need for residual liability of Sponsoring States.
Key-words: Law of the Sea, Deep-Seabed Mining, State Sponsorship System, Liability.
Introduction
The increasing global interest in deep-seabed mining (DSM) has reignited complex legal debates about the liability and accountability of Sponsoring States. As such, the core issue that this paper addresses is the liability regime applicable to Sponsoring States under the United Nations Convention on the Law of the Sea (UNCLOS). Clarifying this regime is even more important now, given that the international community approaches the potential beginning of commercial DSM activities taking place in the ‘Area’ under the auspices of the International Seabed Authority (ISA), which is close to finalising the long-awaited ‘Mining Code’, which is the name afforded to the collection of rules, procedures, standards, and guidelines that ISA is drafting for regulating the prospecting, exploration, and exploitation of marine minerals from the ‘Area’.[1]
Existing literature so far has made significant contributions in outlining the general framework of Sponsoring States’ liability, especially following the 2011 Advisory Opinion delivered by the Seabed Disputes Chamber (SDC) on the matter of Sponsoring States’ responsibilities and duties with respect to DSM (Anton et al. (2011)[2] and Tanaka (2013)[3]). Nevertheless, legal discourse remains divided over critical problems, including the scope of Sponsoring States’ responsibility, the nature of the sponsored contractors’ liability (Xue et al. (2022)[4]), and the possibility of residual liability in cases where the private entities cannot completely compensate for the harm caused (Anton (2011)[5]).
This contribution builds upon that body of work by conducting a doctrinal legal analysis of relevant UNCLOS provisions, international jurisprudence, ISA regulations, and academic opinions on the matter, taking the internal perspective.[6] The research methodology involves a thorough literal, purposive, and contextual interpretation of the analysed legal sources. Especially when interpreting UNCLOS provision the approach of the paper follows closely the imperatives of Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT).[7]
The key findings of the research evince that Sponsoring State liability under UNCLOS is secondary to the one of the sponsored entities and fault-based, contingent on the finding of a violation, damage, and a causal link between the breach and the harm caused. The paper also highlights that the current liability framework still has some gaps – primarily the discussion about residual liability of Sponsoring States. These could be efficaciously addressed through the institution of a strict liability regime on the part of the private contractors, coupled with the establishment of a financial compensation fund, as suggested by the SDC in its 2011 Advisory Opinion, potentially under ISA’s control.
1. Deep Seabed Mining and the State Sponsorship System
There is more and more interest from States and corporations around the Globe to start deep-seabed mining (DSM) in areas beyond national jurisdiction – which have the status of global commons under public international law -, i.e. the High Seas and the ‘Area’. The ‘Area’ is important in the context of DSM because it is the place where the mineral resources to be mined lie, even though ships and specialised mining equipment will also operate in the High Seas. Therefore, while the mining activities involve technology operating both in the High Seas (the water column above) and on the deep seafloor, the legal and regulatory focus is largely on the ‘Area’. In this sense, interesting to note is that, even though the ‘Area’ represents approximately 50% of the total ocean floor[8], nowadays, it is […] one of the most regulated geographies in the world[9].
The International Seabed Authority (ISA), established under Part XI UNCLOS, is the autonomous international organisation responsible for regulating and managing all mineral-related activities in the ‘Area’ for the common good of humankind.[10] Its mandate is to award exploration and exploitation contracts, create rules and procedures for DSM, promote and preserve marine environmental protection in the ‘Area’, and provide equitable and fair distribution of the financial and other economic benefits arising from exploitation of resources in the ‘Area’. In recent years, the main objective of ISA’s work was the commencement of commercial DSM. In this vein, the Authority is nearing completion of the Mining Code – a consolidated version of rules, regulations, and procedures for DSM[11] -, but some strive for this process to be ceased and a moratorium on DSM be imposed until more scientific evidence about its impact becomes clear.[12]
DSM has some potential advantages. Its advocates argue that it would deliver critical minerals such as cobalt, nickel, copper, and rare earths, needed to shift towards renewable energy technology worldwide, including batteries, wind turbines, and electric vehicles.[13] Some also suggest that it could put an end to human rights violations and environmental abuses committed by corporations which mine on land. There is also the opposing view that focusing on DSM could put additional pressure on the economy of developing states which is largely dependent on terrestrial mining, such as the Democratic Republic of the Congo (DRC). This link with international human rights law is even further complicated by the fact that the extracted seafloor minerals would be utilised to manufacture expensive electronic and computer goods, mainly directed towards Global North economies. In this sense, provided that DSM is effective, the price of such metals and minerals would drop, hurting even more the economy and political landscape of Global South nations, thus making the situation considerably more difficult for the people living and working there.[14]
However, DSM is also accompanied by enormous risks and uncertainties. Environmental concerns are particularly emphasized in this case, as mining operations would pose the risk of disturbing fragile deep-sea ecosystems, some of which are insufficiently understood and may harbour endemic species found nowhere else – The environment of the Area has importance for activities other than mining. For instance, deep in the hydrothermal vent ecosystems of the Area may lay life forms that still await discovery and development of options for energy, food, and medicine for present and future generations.[15]. This special biome, so understudied, could be irreversibly affected also by light pollution caused by the submersible mining equipment bringing artificial brightness in otherwise complete dark ecosystems.[16] Moreover, noise pollution – which could disrupt the rhythms and behaviours of acoustic-dependent marine species –[17], as well as greenhouse gas emissions – especially because of the energy-intensive operations of mining vessels and support infrastructure –[18] are also concerns associated with the beginning of large-scale DSM. In essence, long-term ocean health impacts are largely unknown. Furthermore, the absence of social legitimacy of the DSM process has been highlighted as another important impediment to its commencement.[19]
For the purposes of exploration and exploitation of seabed resources of the ‘Area’, Part XI UNCLOS establishes a dual framework, as outlined in Article 153. This framework comprises two main components: the Enterprise and the state sponsorship system. On the one hand, the Enterprise is going to be an organ of the International Seabed Authority (ISA) specifically endowed with the legal capacity to directly conduct activities in the ‘Area’ – especially commercial exploitation of the seafloor polymetallic nodules, polymetallic sulphides, and cobalt-rich ferromanganese crusts. The state sponsorship system, on the other hand, allows activities to be undertaken by UNCLOS State Parties themselves, by natural or juridical persons sponsored by UNCLOS State Parties, or by any consortium/group of such entities.[20] More precisely, activities in the ‘Area’ can be carried out by these private entities if they have the nationality of State Parties or are effectively controlled by them or their nationals. The notion of effective control is crucial to the correct application of this rule. However, in practice, there are two approaches to defining the concept of effective control: regulatory control (the main factor is the place of incorporation or of registration of the sponsored entity) and economic control (which state has overall economic control over the sponsored legal person). Taking only the regulatory control stance can have the undesired consequence of shell companies becoming ISA contractors. On the contrary, the economic control dimension gives effect to UNCLOS Part XI’s provisions which envisage the nationality and the effective control requirement as distinct alternative conditions, allowing for a situation of two sponsoring states to exist. Subsequently, understanding the requirement of effective control both from a regulatory and an economic perspective is essential for its proper functioning.[21]
In accordance with Article 4 of Annex III to UNCLOS, any UNCLOS State Party to the Convention – which, under Article 156(2) UNCLOS, is automatically an ISA Member State – may act as a Sponsoring State for DSM operations, but there is no duty to sponsor a national entity or corporate group.
In this sense, with regard to the sponsorship system which is the only feasible way in which DSM could begin in the next years, it has been demonstrated in literature that: “state sponsorship for DSM in the Area is similar to, but distinct from, the ‘flag State’ regime established by UNCLOS to ensure State responsibility for, and national legislation to govern, any ship on the high seas. The ISA ‘State sponsorship’ system thus ensures there is always a State that is accountable to the rest of the international community for any ISA contractor’s conduct. This is particularly important given that the Area and its resources are outside of any national jurisdiction and are designated the Common Heritage of Humankind.”[22].
The sponsorship relationship is entrenched in the certificate of sponsorship issued by the Sponsoring State to the sponsored entity, underlining the formal character of this relationship. UNCLOS specifically regulates the sponsorship relationship, prescribing that [t]he criteria and procedures for implementation of the sponsorship requirements shall be set forth in the rules, regulations and procedures of the Authority, in Annex III, article 4(3). Nonetheless, this does not directly entail that the sponsoring State should not be allowed to include in its domestic law provisions concerning the issuance of a certificate of sponsorship if it finds it necessary.[23]
As such, the sponsorship system is a way to give effect to the principle of common heritage of humankind, to which the ‘Area’ and its resources belong, and on which ISA’s mandate is concentrated.[24] This transpires from the 2011 International Tribunal for the Law of the Sea Advisory Opinion – the role of the sponsoring State is to contribute to the common interest of all States in the proper implementation of the principle of the common heritage of mankind by assisting the Authority and by acting on its own with a view to ensuring that entities under its jurisdiction conform to the rules on deep seabed mining.[25] However, the main objective[26] of establishing such a sponsorship structure was to reach fulfilment of applicable obligations, since it enables states to oversee contractors and ensure compliance with relevant rules and duties.[27] This approach was necessary, given that international treaty obligations – under public international law – are binding exclusively upon states, while private entities are subjects of national law. In this context, as a derogation from the general rule that states are not liable for conduct of private persons, the responsibility of the State for activities of a sponsored entity may arise, even if this specific regime does not provide for the attribution of the activities of the entity to the sponsoring State.[28]
2. Essential Obligations of Sponsoring States
The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea has ruled in the 2011 Advisory Opinion that DSM Sponsoring States have two types of obligations based on UNCLOS, the 1994 Agreement, and existing ISA Regulations: the obligation to ensure that the sponsored entities comply with all relevant applicable provisions and direct obligations. The obligation to ensure will be first addressed with a focus on its dual function as both a duty and a liability shield. Then, from the list of direct obligations, the most pertinent to the current discussion is the duty of providing recourse for compensation, which will be further detailed. The other direct obligations identified by the Seabed Disputes Chamber in the 2011 Advisory Opinion on the matter – although not an exhaustive list -, are: the obligation to apply the precautionary approach, the obligation to apply the ‘best environmental practices’ principle, the obligation to assist the International Seabed Authority in its task to control activities in the ‘Area’ (for the benefit of the humankind), and the obligation to adopt measures ensuring the provision of guarantees in the event of an emergency order by the International Seabed Authority for protection of the marine environment.[29] These have intentionally been omitted in order to maintain a focused analysis of the Sponsoring States’ liability regime.
2.1. Obligation to Ensure
The main obligation of Sponsoring States is to ensure that the sponsored persons operate in complete conformity with all applicable provisions of UNCLOS, the 1994 Implementation Agreement, and the regulations adopted by the International Seabed Authority (ISA). This important duty lies at the heart of the sponsorship system and gives effect to one of its principal objectives, as explained above.[30]
The obligation imposed on Sponsoring States is one of conduct rather than of result. States are required to exercise the necessary due diligence, meaning they must adopt all reasonable measures to ensure that the sponsored entity abides by all relevant international norms, and they must do so in good faith. Being a due diligence obligation, it is subject to a high level of state discretion, which softens its enforcement. Importantly, the standard of due diligence is dynamic and develops in line with scientific and technological advancements, being susceptible to evolutionary interpretation.[31]
This obligation to ensure comprises both procedural and substantive aspects. Procedurally, Sponsoring States shall adopt regulatory, legislative, and administrative measures necessary to secure compliance by sponsored actors.[32] Substantively, they must ensure that the entities that they sponsor fulfil all environmental and technological standards established by ISA regulations and applicable treaty provisions.[33] Sponsoring States cannot meet their obligation merely by entering into a contract with the sponsored person; instead, they have to also ensure that the contractor’s duties are enforceable under the national legal system.[34]
Several states have enacted domestic legislation to regulate DSM activities and fulfil their obligations as Sponsoring States. For instance, the Nauru Seabed Minerals Authority Act 2024[35], the Cook Islands Seabed Minerals Act 2019[36], and Fiji’s International Seabed Mineral Management Act 2013[37] are eloquent examples. These legal instruments reflect the how these prospective Sponsoring States understood to implement their obligation to take legislative measures to ensure compliance by sponsored entities, enabling them to exercise effective control and secure adherence by the contractors to international standards. Interestingly, these pieces of legislation resemble substantially, which is due to the support they have received from the same initiative, namely the SPC-EU Deep Sea Minerals Project, implemented by the Pacific Community (SPC) with backing from the European Union (EU).[38]
Functionally, the due diligence obligation is also a liability shield for Sponsoring States. By demonstrating that they have taken all the reasonable steps to ensure compliance by the sponsored organisations, Sponsoring States can prevent or restrict liability for damages arising in the course of their sponsored persons’ activities in the ‘Area’. Enacting effective domestic laws and administrative regulations, having functioning monitoring systems in place, and having enforcement mechanisms can serve as protection and evidence that the Sponsoring State has acted with sufficient due diligence to comply with this obligation.
2.2. Obligation to Provide Recourse for Compensation
The obligation is enshrined in Article 235(2) UNCLOS and expects from Sponsoring States to put in place procedural and substantive rules regulating claims for damages before their courts, so that affected parties have due recourse to compensation for potential harm caused by sponsored entities in the course of activities in the ‘Area’.[39]
This obligation is intrinsically connected to the contractor’s obligation to provide reparation for any damage, as per Article 22, Annex III UNCLOS. Principle 4(1) of the International Law Commission Rules concerning Transboundary Harm mandates in an analogous manner that states should take all necessary measures to ensure that prompt and adequate compensation is available for victims, and the practice around this could serve as a basis for applying this obligation.[40]
While some disputes related to activities in the Area fall outside the jurisdiction of domestic courts, the Seabed Disputes Chamber’s compulsory jurisdiction – as stated in Articles 187 and article 289(2) UNCLOS – does not absolve Sponsoring States from taking the required steps to ensure that the internal mechanisms available ensure prompt and sufficient compensation.[41]
A noteworthy example of a domestic implementation of this obligation is found in Fiji’s Seabed Mineral Management Act, where the High Court is granted jurisdiction to conduct proceedings establishing liability and offering expeditious and adequate compensation to affected parties in the event of unlawful damage caused by DSM activities.[42] Another important example of a country which has transposed this obligation into the specific domestic legislation is the Federated States of Micronesia. As such, this obligation is evident in the corroboration of two sections of the Seabed Resources Act, namely Section 102 subsection (2) paragraph (c), Section 104 paragraph (d), and Section 107 paragraph (b) subparagraph (vi).[43]
3. Consequences of a Breach of States’ Obligations regarding Deep-Seabed Mining: Liability and State Responsibility
Liability of the sponsoring state was the gist of the second question answered by the Seabed Disputes Chamber in its 2011 Advisory Opinion. As per Article 139(2) UNCLOS, there are three conditions for establishing liability: the existence of damage, the wrongful act – residing in the failure of the state to fulfil its obligations -, and a causal link between the damage and the state’s action or omission. Thus, a Sponsoring State is liable for damage caused by its own inability to meet its responsibilities (which is the reason why strict liability is excluded[44]), without having any opportunity to exempt itself from the liability by invoking that it is not the DSM operator. In this sense, the Sponsoring State cannot be hold accountable unless an unlawful act attributable to it is identified under international law (fault-based liability).[45] Therefore, strict liability of the Sponsoring State is excluded and the SDC explicitly ruled out it out in the 2011 Advisory Opinion.[46] A Sponsoring State shall make use of all reasonable, good-faith measures to ensure the sponsored contractor follows the rules, but it is not automatically liable if harm is caused. In other words, if it has taken all necessary and appropriate measures to secure sponsored entities’ abidance, as mandated in Article 153(4), and Annex III, Article 4(4) UNCLOS, the state can be absolved of liability.[47] If no material damage occurs, the Sponsoring State cannot be held liable under UNCLOS, because damage is a necessary condition for liability, but under general public international law, a State may still be accountable for committing an internationally wrongful act, such as infringing a treaty obligation, without causing physical harm. This distinction establishes a two-track approach to Sponsoring States’ responsibility: under the UNCLOS regime, liability will only be incurred if breach, damage, and causal link between the two are demonstrated; under customary international law, a breach of an international obligation alone may suffice to establish State responsibility regardless of whether or not any physical damage has been inflicted.[48]
In case of multiple sponsorship, the liability of the sponsoring states is joint and several[49], but between the contractor and the sponsoring state, the liability regimes function in parallel, without jointness and severability[50]. Given that the state has a secondary role, the main liability belongs to the sponsored entity and International Seabed Authority, whereas a subordinate liability, commensurate to its role, rests with the Sponsoring State.
With respect to the locus standi, UNCLOS and the Seabed Disputes Chamber are silent on the matter, making the general rules on state responsibility applicable.[51] Hence, an injured state or a third party could raise the liability sponsoring states, which creates risks of international litigation before the International Court of Justice or International Tribunal for the Law of the Sea, as well as the possibility of the state to face unprecedented attempts at litigation at the domestic level, by private entities and other non-state actors (for instance, non-governmental organisations with marine environmental protection interests).[52] There are states which have incorporated in their national legislation on DSM indemnity clauses for the Sponsoring State, leaving the liability issue completely to the sponsored entity, but this only excludes residual liability of the Sponsoring State; it does not shield the state from being held accountable for its own contribution to the failures which generated the harm. An example of such a national provision is Section 84 paragraph (3) of the Tongan Seabed Minerals Act, which reads as follows: “A Sponsored Party shall at all times keep the Kingdom indemnified against all actions, proceedings, costs, charges, claims and demands which may be made or brought by any third party in relation to its Seabed Mineral Activities.”.[53]
4. Why Strict Liability for Contractors shields Sponsoring States from Residual Liability
There exist differing views on whether the Sponsoring State has residual liability for the damages not covered by the private entity. It is argued that, although contractors and sponsoring States share parallel and independent liabilities, Sponsoring States should be held residually liable if sponsored entities lack sufficient financial resources or insurance coverage, especially in the event of catastrophic environmental harm, to compensate for the harm that they produced with the occasion of DSM activities.
In the 2011 ITLOS Advisory Opinion, the SDC clarified this, stating that the liability regime established by article 139 of the Convention and in related instruments leaves no room for residual liability[54]. The arguments supporting this view were founded upon the independence between the liability of the contractor and the state’s liability, which does not make the Sponsoring State responsible for harm caused by the sponsored entity, but rather only for its own failure to comply with its duties.[55] The SDC also addressed the problem of the potential uncompensated rest of the damage by recommending the creation of a trust fund by ISA, precisely for that purpose.[56]
However, some voices in literature still point towards strong incentives for introducing residual liability of the Sponsoring State in relation to environmental harm produced by the sponsored company, relying on extra-UNCLOS environmental protection rules, since the level of uncertainty regarding the extent of the negative impact of DSM on the ‘Area’ is alarmingly high.[57] These opposing perspectives on the issue reveal a structural vulnerability. Even when Sponsoring States exercise due diligence, they may face indirect risks from legal liability gaps and the impossibility of sponsored entities to compensate for the harm fully. The principle of the Common Heritage of Humankind, enshrined in UNCLOS, binds the ISA and its Member States to protect the marine environment – which is an erga omnes obligation.[58] Under public international law, as opposed to inter partes obligations, erga omnes duties are owed to the whole international community, they derive from a public interest, and they are characterised by non-reciprocity and collectiveness.[59] This typology of obligations has been defined by the ICJ for the first time in the Barcelona Traction Case: In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State […]. By their very nature the former are the concern of all States. […] all States can be held to have a legal interest in their protection; they are obligations erga omnes.[60] Thus, if harm occurs without complete compensation, the international community may hold Sponsoring States morally or politically accountable, regardless of their legal standing.
These are pressing and valid concerns. Nevertheless, residual liability of Sponsoring States is, as ruled by the Seabed Disputes Chamber, not necessary, and it can be avoided by employing a two-fold legal solution: a regime of strict liability imposed on the sponsored contractors – which bear the primary burden of accountability as per article 22 UNCLOS -, and operationalisation of a trust fund by ISA, for a better coverage of possible damages.[61]
Firstly, under a non-fault liability regime, contractors would be liable for environmental harm regardless of fault or negligence. This would ensure clear and predictable liability allocation, reducing uncertainty for sponsoring States, while closing existing compensation gaps and minimising the potential need for Sponsoring States’ residual liability. Moreover, converting the existing regime into a strict liability one from the perspective of sponsored entities would align DSM regulation with liability frameworks in comparable sectors, such as oil pollution, hazardous waste management, and nuclear energy, where strict liability is the norm due to the high environmental risks involved.[62]
Secondly, as anticipated, in order to be fully effective, this strict liability regime should be supported by concrete financial mechanisms in the form of establishing a compensation fund and imposing mandatory insurance for the sponsored contractors. Combining these two measures would ensure that compensation is available even if a contractor becomes insolvent. The trust fund could be managed by ISA and be constituted with mandatory contributions from all the actors directly involved in DSM.[63]
Conclusion
In conclusion, the United Nations Convention on the Law of the Sea liability regime for Sponsoring States constitutes a complex and balanced legal framework, which is carefully constructed to reconcile the facilitation of conducting deep-seabed mining activities in the ‘Area’, with the need to protect and preserve the marine environment in areas beyond national jurisdiction. In this respect, the 2011 Advisory Opinion of the Seabed Disputes Chamber has unravelled a fault-based, secondary liability regime of Sponsoring States. As shown, Sponsoring States are liable only for potential breaches of their international obligations, rather than for the acts of the sponsored entities. This liability regime upholds the notion of state responsibility, a foundational principle of public international law and equally acknowledges the reality of the practicalities of regulating private actors operating in global commons.
Critical to this liability regime is the double set of obligations incumbent upon Sponsoring States: the procedural obligation to ensure their sponsored contractors are compliant with all relevant international rules, and the substantive obligation to give effect to the right to fair compensation in their domestic legal systems. These obligations are viewed as an instrument to ensure that the principle of the common heritage of humankind is genuinely respected. At the same time, the legal framework purposely excludes strict liability of Sponsoring States.
The risk of a liability gap, when a contractor lacks the necessary financial capacity to compensate potential environmental damage, has raised the question of whether Sponsoring States should retain residual liability. It is clear, as demonstrated above, that residual liability of Sponsoring States is not necessary if a system of strict liability of the contractors is imposed and adequate financial protection mechanisms are required, in the form of the obligation of private actors involved in deep-seated mining to have compulsory insurance and the operationalisation of a trust fund. In this regard, a strict liability regime for contractors not only provides legal certainty but it can also protect Sponsoring States. In essence, this liability regime reflects an effort to structure a governance system which is fair, enforceable, and flexible to properly address the multiple challenges of deep-seabed resource exploitation. As the international community inches closer to the point where large-scale commercial deep-seabed mining is imminent, the success of this regime depends upon ongoing and innovative legal development, responsible state practice, and vigilant monitoring by the International Seabed Authority. Furthermore, going forward, ensuring that this liability regime continues to be responsive to changing ecological, economic, and technological conditions will be vital for encouraging sustainable economic development and protecting the ocean areas beyond national jurisdiction for the benefit of present and future generations.
* Student at Tilburg University, The Netherlands, and at the Faculty of Law, University of Bucharest, teodora.iacob@drept.unibuc.ro, t.iacob@tilburguniversity.edu.
The opinions expressed in this paper are solely the author’s and do not engage the institution he/she belongs to.
[1] International Seabed Authority (ISA), The Mining Code, www.isa.org.jm/the-mining-code/, last visited on 01/06/25.
[2] Donald K. Anton et al., Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17): International Environmental Law in the Seabed Disputes Chamber, ANU College of Law Research Paper, No. 11-06, 2011.
[3] Yoshifumi Tanaka, Obligations and Liability of Sponsoring States Concerning Activities in the Area: Reflections on the ITLOS Advisory Opinion of 1 February 2011, Netherlands International Law Review, vol. LX, 2013.
[4] G. Xue et al., The United Nations Convention on the Law of the Sea, Part XI Regime and the International Seabed Authority: A Twenty-Five Year Journey, Brill, 2022.
[5] Donald K. Anton, The Principle of Residual Liability in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea: The Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17), JSDLP–RDPDD, vol. 7, no. 2, 2011.
[6] T. Hutchinson et al., Defining and Describing Doctrinal Legal Research, Deakin Law Review, vol. 17, no. 1, 2023, pp. 83-101.
[7] Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, arts. 31-33.
[8] United Nations Environment Programme, Deep-Sea Mining – Issue Note, 6 May 2024, p. 7.
[9] Antonio Elian Lawand Junior, Legal Aspects of the Recovery of Areas Degraded by Mining in the International Seabed, SpringerBriefs in Law, 2023, p. 49-50.
[10] United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397 (UNCLOS), art. 157.
[11] Chris Pickens et al., From what-if to what-now: Status of the deep-sea mining regulations and underlying drivers for outstanding issues, Marine Policy, vol. 169, 2024.
[12] Zachary Douglas et al, Legal Opinion in the Matter of a Proposed Moratorium or Precautionary Pause on Deep-Sea Mining Beyond National Jurisdiction, 2023.
[13] James R. Hein et al., Critical Minerals in Marine Mineral Deposits, Nature Reviews Earth & Environment, vol. 1, 2020, p. 158.
[14] Aaron Schwabach, A Hole in the Bottom of the Sea: Does the UNCLOS Part XI Regulatory Framework for Deep Seabed Mining Provide Adequate Protection against Strip-Mining the Ocean Floor?, Virginia Environmental Law Journal, 2021, p. 10.
[15] Donald K. Anton, The Principle of Residual Liability in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea: The Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17), JSDLP–RDPDD, vol. 7, no. 2, 2011, p. 256–257.
[16] Jeffrey C. Drazen et al., Challenges of Deep-Sea Mining, Science, vol. 359, no. 6371, 2018, p. 582–583.
[17] Rob Williams et al., Noise from deep-seabed mining may span vast ocean areas, Science, vol. 377, no. 6602, p. 157-158.
[18] Luise Heinrich et al., Mind the gap and close it: Regulating greenhouse gas emissions from deep-sea mining in the Area, Marine Policy, vol. 160, no. 105929, p. 1-9.
[19] Aline Jaeckel et al., Deep seabed mining lacks social legitimacy, Ocean Sustainability, vol. 2, no. 1, 2023, p. 3.
[20] Earth Negotiations Bulletin (ENB), Report on the International Seabed Authority Sessions, 2019.
[21] Samantha Robb et al., Effective control and state sponsorship in deep seabed mining, Marine Pollution Bulletin, vol. 209, 2024, p. 3, 12–13.
[22] Ibid., p. 2.
[23] Ibid., p. 319
[24] Watson Farley & Williams, Deep Seabed Mining Insights: The Role and Rights of Sponsoring States under the UNCLOS Regime, 2023
[25] Responsibilities and Obligations of States with respect to activities in the Area, Advisory Opinion (Case No. 17, ITLOS), 1 February 2011, ITLOS Reports 2011, p. 10, para. 226.
[26] Ibid.
[27] X. H. Oyarce, Sponsoring States in the Area: Obligations, liability and the role of developing States, Marine Policy, vol. 95, 2018, p. 317.
[28] Ibid., 317-318.
[29] Responsibilities and Obligations of States with respect to activities in the Area, Advisory Opinion (Case No. 17, ITLOS), 1 February 2011, ITLOS Reports 2011, p. 10.
[30] Ibid., paras. 107-108.
[31] Ibid., paras. 110-111, 117.
[32] Ibid., paras. 218-219.
[33] Donald K. Anton et al., Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17): International Environmental Law in the Seabed Disputes Chamber, ANU College of Law Research Paper, No. 11-06, 2011, p. 10.
[34] Responsibilities and Obligations of States with respect to activities in the Area, Advisory Opinion (Case No. 17, ITLOS), 1 February 2011, ITLOS Reports 2011, paras. 78, 223–224.
[35] Government of Nauru, Nauru Seabed Minerals Authority Act no. 13 of 20 August 2024.
[36] Parliament of the Cook Islands, Seabed Minerals Act no. 5 of 2019.
[37] Government of Fiji, International Seabed Mineral Management Decree No. 21 of 12 July 2013, Government of Fiji Gazette 14(68), 2576.
[38] Tomoko Kakee, Deep-sea mining legislation in Pacific Island countries: From the perspective of public participation in approval procedures, Marine Policy, vol. 117, 2020, 103881.
[39] Responsibilities and Obligations of States with respect to activities in the Area, Advisory Opinion (Case No. 17, ITLOS), 1 February 2011, ITLOS Reports 2011, para. 140.
[40] International Law Commission, Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, Report of the International Law Commission on its Fifty-eighth session – UN Doc A/61/10 (2006).
[41] G. Xue et al., The United Nations Convention on the Law of the Sea, Part XI Regime and the International Seabed Authority: A Twenty-Five Year Journey, Brill, 2022, p. 230–231.
[42] Government of Fiji, International Seabed Mineral Management Decree No. 21 of 12 July 2013, Government of Fiji Gazette 14(68), 2576.
[43] Federated States of Micronesia, Seabed Resources Act, Public Law no. 20-102 (2014), Congressional Act no. 20-91.
[44] Responsibilities and Obligations of States with respect to activities in the Area, Advisory Opinion (Case No. 17, ITLOS), 1 February 2011, ITLOS Reports 2011, para. 189.
[45] Linlin Sun, International Environmental Obligations and Liabilities in Deep Seabed Mining, Cambridge University Press, 2023, p. 275.
[46] Responsibilities and Obligations of States with respect to activities in the Area, Advisory Opinion (Case No. 17, ITLOS), 1 February 2011, ITLOS Reports 2011, para. 189.
[47] Linlin Sun, International Environmental Obligations and Liabilities in Deep Seabed Mining, Cambridge University Press, 2023, p. 272-273.
[48] Alexander Proelss and Robert C. Steenkamp, Liability Under Part XI UNCLOS (Deep Seabed Mining), in P. Gailhofer et al. (eds.), Corporate Liability for Transboundary Environmental Harm, Springer, 2022, p. 564–565.
[49] Responsibilities and Obligations of States with respect to activities in the Area, Advisory Opinion (Case No. 17, ITLOS), 1 February 2011, ITLOS Reports 2011, para. 192.
[50] Ibid., para. 200.
[51] Linlin Sun, International Environmental Obligations and Liabilities in Deep Seabed Mining, Cambridge University Press, 2023, p. 296.
[52] Deep Sea Conservation Coalition, Risky Business: Liability for Deep-Sea Mining Sponsoring States, Fact Sheet 9, November 2024, p. 2.
[53] Kingdom of Tonga, Seabed Minerals Act, Legislative Act no. 10 of 20 August 2014.
[54] Responsibilities and Obligations of States with respect to activities in the Area, Advisory Opinion (Case No. 17, ITLOS), 1 February 2011, ITLOS Reports 2011, para. 204.
[55] Ibid., para. 202-204.
[56] Ibid., para. 209.
[57] Donald K. Anton, The Principle of Residual Liability in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea: The Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17), JSDLP–RDPDD, vol. 7, no. 2, 2011, p. 242–257.
[58] P. Weckel, The Obligation of States to Protect and Preserve the Marine Environment. Summary of the general report, Institut du Droit Économique de la Mer, 2023.
[59] E.-E. Fasia, No Provision Left Behind – Law of the Sea Convention’s Dispute Settlement System and Obligations Erga Omnes, The Law and Practice of International Courts and Tribunals (Brill Nijhoff), vol. 20, pp. 519, 528-531.
[60] Case Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase, Judgment) [1970] ICJ Reports, p. 3, para. 33.
[61] Yavuz Arda Yakut, Why Should a Strict Liability Regime be Adopted for Deep-Seabed Mining Contractors?, EJIL: Talk! – Blog of the European Journal of International Law, 16 May 2025.
[62] Alexander Proelss and Robert C. Steenkamp, Liability Under Part XI UNCLOS (Deep Seabed Mining), in P. Gailhofer et al. (eds.), Corporate Liability for Transboundary Environmental Harm, Springer, 2022, p. 564.
[63] J. Zhou and L. Xiang, Framework and rethink of the Environmental Compensation Fund for the international seabed area, Frontiers in Marine Science, vol. 10, 2023.