One of the innovations of the United Nations Convention on the Law of the Sea 1982, (UNCLOS) is the designation of a zone of the seabed and subsoil as the common heritage of mankind for the purpose of equitable sharing of the resources of the zone. As a result, no State is allowed to assert sovereignty over the zone or claim exclusive rights over its resources.
This zone is called the “Area”, defined in article 1(a) of the UNCLOS as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. The term, “national jurisdiction” defines the parts of the sea over which coastal States have sovereignty or sovereignty rights. In relation to the Area, these would be the territorial sea and the continental shelf.
Article 2 of the UNCLOS defines the sovereignty of a coastal State in relation to the sea, and specifies in sub article (2) that a coastal state’s sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. Article 3 tells us that the maximum limit of the breadth of territorial sea is 12 nautical miles. Accordingly, the first area of national jurisdiction to discount from the seabed to identify the part known as the Area, is the seabed within 12 nautical miles from the baseline determined in accordance with the UNCLOS.
There is a second part to be discounted – the continental shelf, provided for in Part VI of the UNCLOS. It is defined in article 76(1) to comprise “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance”.
It is difficult not to observe that the measurement of both the territorial sea and the continental shelf begins from the same baseline. This brings us to the essential point that, notwithstanding that they are measured from the same baseline, the continental shelf takes effect, in real terms, from 12 nautical miles, the point at which the territorial sea ends. This is the natural result of the different status ascribed to the two zones by the UNCLOS: the territorial sea is an area over which a coastal State has sovereignty, being an extension of its land territory; while, on the other hand, a coastal State only has sovereign rights over its continental shelf for the purpose of exploring it and exploiting its natural resources (article 77(1)), to the exclusion of any claim of sovereignty.
There is a robust historical context to the normative basis of the rights a coastal State has over its continental shelf and how the geographical limit is measured. However, the scope of this commentary would not permit us to explore those areas, except that it suffices to State that, unlike what obtains under article (1) of the 1958 Convention on the Continental Shelf, which measured entitlement by depth, resulting in varied entitlements for coastal States as per their natural prolongation, under the UNCLOS, there is a default uniform entitlement for all States up to a distance of 200 nautical miles, irrespective of natural prolongation. Accordingly, the 200 nautical miles continental shelf entitlement applies to all States. The second part of the seabed to be discounted, therefore, is 200 nautical miles from the baseline from which the territorial sea is measured.
Going by the default or automatic entitlement of 200 nautical miles for all coastal States, here is generally the limit of their national jurisdiction, so that, in the ordinary course of things, the part of the seabed referred to as the Area, begins immediately after 200 nautical miles of the continental shelf. This is however not true for all States, given the provisions of article 76(4) and (5) of the UNCLOS, which, recognising that some coastal States’ continental shelf may naturally prolong beyond 200 nautical miles, create an opportunity for such States to extend their continental shelf, beyond the default position of 200 nautical miles up to 350 nautical miles – extended continental shelf. Coastal States are however unable to unilaterally claim the extension without first seeking and obtaining the recommendation of the Commission on the Limits on the Continental Shelf (CLCS) – Annex II to the UNCLOS.
It is the responsibility of the CLCS to facilitate the implementation of the UNCLOS in respect of the establishment of the outer limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. It is the CLCS that makes recommendations to coastal States on matters relating to the establishment of the outer limits of the continental shelf (article 76(8 of the UNCLOS).
Only recently, the CLCS recommended the extension of Nigeria’s continental shelf by an additional 16,300 square kilometres, which is said to be about five times the size of Lagos. In relation to Nigeria, for example, the limit of national jurisdiction would be the default 200 nautical miles continental shelf entitlement and the additional 16,300 square kilometres. This, as those of other States with extended continental shelf, would be discounted from the seabed, leaving the other parts, sometimes called the abyss due to its deepness, to the “Area”.
Regarding the Area, article 136 of the UNCLOS reserved “the Area and its resources…[as] the common heritage of mankind” and, by article 137 of the UNCLOS, “no State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof”. The provision further excluded the recognition of any such claim or exercise of sovereignty or sovereign rights and excluded the possibility of its appropriation. Article 133 defines the “resources” of the Area to mean all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules.
By article 140, activities in the Area, (which is defined in article 1(3) to mean all activities of exploration for, and exploitation of, the resources of the Area) shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status. The responsibility for this is placed on the International Seabed Authority (ISA), established in section 4 of the UNCLOS.
The ISA was established in 1994 with the specific and exclusive mandate to manage the Area and its resources for the shared benefit of humankind, which includes ensuring the effective protection of the marine environment in the Area, a specific and exclusive competence. Its competence is recognised and reinforced by other international agreements, under the United Nations Convention on the Law of the Sea (UNCLOS), including the Agreement on Marine Biodiversity of Areas beyond National Jurisdiction (BBNJ Agreement).
The Area has a rich deposit of polymetallic nodules (PMN), polymetallic sulphides (PMS), and cobalt-rich ferromanganese crusts (CRFC), for each of which the ISA set the maximum exploration area.
PMN, also called manganese nodules, are rock concretions formed of concentric layers of iron and manganese hydroxides around a core, which is sometimes completely transformed into manganese minerals by crystallization.
PMS contains high concentrations of base metals (copper, zinc, lead) and especially precious metals (gold, silver) in some of these massive sulphide deposits ion some of the massive deposits formed by sulphides, including galena (lead), sphalerite (zinc) and chalcopyrite (copper) that accumulate at and just below the seafloor, ranging from several thousands to about 100 million tonnes.
CRFC are an important potential source for many other metallic and rare earth elements such as titanium, cerium, nickel, platinum, manganese, phosphorus, thallium, tellurium, zirconium, tungsten, bismuth and molybdenum. Crusts are composed of the minerals vernadite (manganese oxide) and feroxyhyte (iron oxide). Moderate amounts of carbonate-fluorapatite occur in thick crusts, while most crusts contain minor quantities of quartz and feldspar. Crusts contain a high content of cobalt, up to 1.7 percent, and large areas of individual seamounts may contain crusts with average cobalt content of up to 1%. These cobalt proportions are much higher than in land-based ores, which range from 0.1 to 0.2 % cobalt. Other than cobalt, the most valuable of the crust metals are titanium, cerium, nickel and zirconium, in that order. The types of metals occurring in cobalt-rich crusts – notably cobalt, manganese and nickel — are used to add specific properties to steel, such as hardness, strength and resistance to corrosion. Between one fourth and one half of cobalt consumption is used by the aerospace industry in superalloys. These metals are also employed in chemical and high-technology industries, for such products as photovoltaic and solar cells, superconductors, advanced laser systems, catalysts, fuel cells and powerful magnets, as well as for cutting tools.
As per its mandate, exploration in the Area may be carried out only by qualified entities under a contract granted by ISA and in accordance with Part XI of UNCLOS, the 1994 Agreement on the implementation of Part XI of UNCLOS and the rules, regulations and procedures of ISA. ISA defines exploration as the searching for minerals; the analysis of the economic potential of mineral deposits construction and testing of recovery systems and equipment, processing facilities and transportation systems; the carrying out of studies of the environmental, technical, economic, commercial and other appropriate factors that must be considered before a decision to proceed to commercial production. Only State parties are permitted to sponsor entities that participate in the exploration and exploitation of the resources of the area.
To cater for the interest of States, principally developing States, that may not have the wherewithal to participate in activities in the area or to sponsor a company with the capacity to do so, developed States applying for exploration contracts are required to divide the total area of application into two parts of equal estimated commercial value. They must provide ISA with survey data and information to substantiate the estimated values. The ISA then allocates one area to the applicant and set aside the other area as “reserved area” to go into a “site bank” where the area will be available for application by developing States or by the Enterprise. The contractors may however decide to offer a future equity interest to the Enterprise in lieu of a reserved area.
Only State parties or contractors sponsored by State parties can be permitted by the ISA to carry out activities in the Area. To this end, article 153 of the UNCLOS and ANNEX III to the UNCLOS specify the basic conditions for prospecting, exploring and exploiting the Area. Article 153 of the UNCLOS, read together with article 4(1) of the Annex, provides that Applicants, other than the Enterprise, shall be qualified if they are State parties, or State enterprises or natural or juridical persons which possess the nationality of State parties or are effectively controlled by them or their nationals, when sponsored by such States, or any group of the foregoing which meets the requirements provided in Annex III and if they follow the procedures and meet the qualification standards set forth in the rules, regulations and procedures of the Authority.
So far, all the applicants for PMS have chosen to offer a future equity interest to the Enterprise in lieu of a reserved area and there are consequently no reserved areas.
In the case of CRFC, only one out of five contractors – the Russian Federation – took the option to contribute a reserved area and contributed 3,000 km2. The remaining contractors offered a future equity interest to the Enterprise.
In all, the ISA has awarded a total of 31 contracts for PMN, PMS and CFC to 22 sponsoring States in the following order: PMN = 19 contracts, PMS =7 contracts and CRFC =5 contracts, respectively.
In specific terms, ISA data shows that: (a) Beijing Pioneer Hi-Tech Development Corporation, sponsored by The People’s Republic of China is exploring for PMN in the Western Pacific Ocean; (b) Blue Minerals Jamaica Limited (BMJ) sponsored by Jamaica explores PMN in Clarion-Clipperton Fracture Zone; (c) China Minmetals Corporation sponsored by The People’s Republic of China, explores – PMN in Clarion-Clipperton Fracture Zone; (d) China Ocean Mineral Resources Research and Development Association, sponsored by The People’s Republic of China, explores PMN in Clarion-Clipperton Fracture Zone; (e) Cook Islands Investment Corporation sponsored by Cook Islands, explores PMN in Clarion-Clipperton Fracture Zone; (f) Deep Ocean Resources Development Co. Ltd, sponsored by Japan explores PMN in Clarion-Clipperton Fracture Zone; (g) Federal Institute for Geosciences and Natural Resources of Germany, sponsored by Germany explores PMN in the Clarion-Clipperton Fracture Zone; (h) Global Sea Mineral Resources NV, sponsored by Belgium explores PMN Clarion-Clipperton Fracture Zone; (i) Government of India, sponsored explores PMN in the Indian Ocean; (j) Interoceanmetal Joint Organization, sponsored by Bulgaria, Cuba, Czech Republic, Poland, Russian Federation and Slovakia explores for PMN Clarion-Clipperton Fracture Zone; (k) the Government of the Republic of Korea, sponsored by Korea explores PMN Clarion-Clipperton Fracture Zone; (l) Marawa Research and Exploration Ltd, sponsored by Kiribati, explores PMN in the Clarion-Clipperton Fracture Zone; (m) Institut français de recherche pour l’exploitation de la mer, sponsored by France, explores PMN in the Clarion-Clipperton Fracture Zone; (n) Nauru Ocean Resources Inc, sponsored by Nauru explores PMN in the Clarion-Clipperton Fracture Zone; (o) Ocean Mineral Singapore Pte. Ltd, sponsored by Singapore explores – PMN in the Clarion-Clipperton Fracture Zone; (p) Tonga Offshore Mining Limited sponsored by Tonga explores in PMN in Clarion-Clipperton Fracture Zone; (q) UK Seabed Resources Ltd – I, sponsored by the United Kingdom of Great Britain and Northern Ireland, explores for PMN Clarion-Clipperton Fracture Zone; (r) UK Seabed Resources Ltd. – II, sponsored by the United Kingdom of Great Britain and Northern Ireland, sponsors PMN in the Clarion-Clipperton Fracture Zone; and (s) Yuzhmorgeologiya, sponsored by the Russian Federation, explores PMN in the Clarion-Clipperton Fracture Zone.
For PMS, there are: (a) China Ocean Mineral Resources Research and Development Association, sponsored by The People’s Republic of China, explores PMS in the Southwest Indian Ridge; (b) Federal Institute for Geosciences and Natural Resources of Germany, sponsored by Germany explores PMS in the Central Indian Ridge and Southeast Indian Ridge; (c) Government of India, sponsored by India explores PMS in the Indian Ocean Ridge; (d) the Government of the Republic of Korea, sponsored by Korea explores PMS in Central Indian Ocean; (e) the Government of the Republic of Poland, sponsored by Poland explores PMS in Mid-Atlantic Ridge; (f) the Government of the Russian Federation, sponsored by the Russian Federation, explores PMS in the Mid-Atlantic Ridge; (g) Institut français de recherche pour l’exploitation de la mer, sponsored by France explores PMS in the Mid-Atlantic Ridge.
For CRFC, there are: (a) Companhia de Pesquisa de Recursos Minerais S.A, sponsored by Brazil explores CRFC in Rio Grande Rise, South Atlantic Ocean; (b) China Ocean Mineral Resources Research and Development Association, sponsored by The People’s Republic of China, explores CRFC in the Western Pacific Ocean; (c) Government of the Republic of Korea, sponsored by Korea, explores CRFC in the Western Pacific Ocean; (d) Japan Oil, Gas and Metals National Corporation, sponsored by Japan, explores CRFC in the Western Pacific Ocean; (e) Ministry of Natural resources and environment of the Russian Federation, sponsored by the Russian Federation, explores for CRFC in the Western Pacific Ocean.
One striking element of this data is that no African State has sponsored activities in the Area, not even by taking advantage of the reserved areas. In fact, ISA data shows that as of September 2023, 1.39 million km2 of reserved area had been allocated to contractors sponsored by developing States, and 887,485 km2 remained available in the site bank for exploration for PMN. The developing States that have taken advantage of reserved areas to sponsor exploration activities for PMN, are China, the Cook Islands, Jamaica, Nauru, Kiribati, Singapore and Tonga.
It is acknowledged that exploration activities in the Area is capital intensive and technologically driven, as has also been shown in an ISA data 79 million dollars was spent on exploration activities between 2014 and 2023. While it is possible to attribute the lack of activities by African States to finances, this may not really be correct, considering the fact that some developing states with smaller economies have managed to sponsor activities in the Area. for context, the size of Nigerian economy is bigger than those of Cook Islands, Jamaica, Nauru, Kiribati, and Tonga, that have sponsored activities in the Area.
In any event, as we have always advocated, African States could combine to pursue a joint sponsorship of activities.
In closing, it is important to remind us at this point that our focus has been the seabed, to the exclusion of the superjacent waters, which divides into the waters of the territorial sea, the contiguous zone, the exclusive economic zone and the high seas. Recognising the separateness of the two zones, article 135 of the UNCLOS provides that “neither this Part [dealing with the Area] nor any rights granted or exercised pursuant thereto shall affect the legal status of the waters superjacent to the Area or that of the air space above those waters”.
Just like the Area, the high seas is the only zone of the superjacent waters that is outside the limit of national jurisdiction. The high seas is also not subject to appropriation, as States are prohibited from proclaiming sovereignty over it, just like the Area. However, there is the fundamental difference in the normative principles that govern their communality. The community rights of the high seas is defined by various “freedoms” as a means of expressing its openness to all States, while the Area is not based on freedoms but on the principle of the common heritage of mankind. Hence, no State has a right to appropriate the resources of the Area to itself, as States are allowed to do respecting the resources of the high seas. This, as we have already seen, is the essence of the ISA.
Amos O Enabulele, PhD
Professor of Public International Law
