Liability Issues for Deep Seabed Mining Series

About the series

The Liability Issues for Deep Seabed Mining project was developed by the Centre for International Governance Innovation (CIGI), the Commonwealth Secretariat and the Secretariat of the International Seabed Authority (ISA) to assist in clarifying legal issues of responsibility and liability underpinning the development of exploitation regulations for the deep seabed. CIGI, in collaboration with the ISA Secretariat and the Commonwealth Secretariat, in 2017, invited leading legal experts to form the Legal Working Group on Liability for Environmental Harm from Activities in the Area to discuss liability related to environmental damage, with the goal of providing the Legal and Technical Commission, as well as members of the ISA with an in-depth examination of potential legal issues and avenues.

Papers in the series cover the following topics: the current legal architecture for liability/responsibility under the United Nations Convention on the Law of the Sea; the scope of activities covered under a liability regime; the responsible parties; the potential claimants; the range of recoverable damages; and the appropriateness of using insurance and compensation funds to ensure adequate resources for compensation. CIGI Senior Fellow Neil Craik coordinated the development of the paper series.

Members of the Legal Working Group

The group consists of Alfonso Ascencio-Herrera, Christopher Brown, Eden Charles, Neil Craik, Tara Davenport, Elie Jarmache, Hannah Lily, Ruth Mackenzie, Stephen E. Roady, Andrés Sebastián Rojas, Dire Tladi and Guifang (Julia) Xue.

The designations employed, as well as the content and presentation of material in these publications do not imply the expression of any opinion whatsoever on the part of the Secretariat of the International Seabed Authority or the Commonwealth Secretariat, including, inter alia, concerning the legal status of any country or territory or of its authorities, or concerning the delimitation of its frontiers or maritime boundaries.

In the Series

Development of a liability regime for deep seabed mining should be responsive to the practical realities of organizational practices and structures to ensure injured parties have legal recourse to seek compensation for environmental damages. Under the United Nations Law of the Sea Convention, contractors engaged in deep seabed mining activities and the states that sponsor those contractors bear primary responsibility for environmental harm arising from their respective roles in mining and oversight.
This paper reviews the legal and institutional frameworks associated with the use of compensation funds, insurance and other forms of security as part of the broader liability scheme for environmental damages. The compensation funds designed and implemented in the fields of oil pollution, nuclear accidents, hazardous and noxious substances transport, and the Antarctic have been summarized and examined. Possible applicability of these compensation mechanisms to deep seabed mining activities is considered. 
This paper explores the various issues related to identifying claimants that have a sufficient legal interest to bring a claim for damage arising out of activities in the area beyond national jurisdiction (standing) and whether such claimants have access to a dispute settlement forum to adjudicate such claims, be it an international court, tribunal or national courts (access).
This paper examines how legal liability for damage arising from seabed mining is currently handled in the national laws of countries who sponsor seabed mineral activities in international waters. The paper explores how sponsoring state laws form a crucial part of the international legal liability regime for seabed mining and highlights some apparent gaps in the current statutory framework.
This paper examines the existing approaches taken in establishing the degree of fault required to impose liability for environmental harm in international law, with a specific focus on identifying the key considerations in establishing a standard of liability for deep seabed mining activities. The paper considers the standard of liability for state behaviour under the law of state responsibility and on operators through international legal regimes on civil liability, as well as detailing the use of liability exceptions and liability caps across various regimes.
A critical component of the development of international rules governing the exploitation of deep seabed minerals is ensuring that, in the event of harm to the environment, persons and property, there are appropriate rules and procedures ensuring that adequate and prompt compensation be paid to address those losses. The unique features of the deep seabed mining regime, including the complicated mix of state and non-state entities involved in the activities, and the status of the seabed area beyond national jurisdiction (“the Area”) as — to use the language of the United Nations Convention on the Law of the Sea — the “common heritage of mankind,” raise new and complicated legal issues.