The Law of the Seabed Publications on Ocean Development A Series of Studies on the International, Legal, Institutional and Policy Aspects of Ocean Development General Editors Robin Churchill Alex Oude Elferink volume 90 The titles published in this series are listed at brill.com/pood The Law of the Seabed Access, Uses, and Protection of Seabed Resources Edited by Catherine Banet LEIDEN | BOSTON This is an open access title distributed under the terms of the CC BY- NC- ND 4.0 License, which permits any non-­­commercial use, distribution, and reproduction in any medium, provided no alterations are made and the original author(s) and source are credited. Further information and the complete license text can be found at https://creativecommons.org/licenses/by-nc-nd/4.0/ The terms of the CC license apply only to the original material. The use of material from other sources (indi- cated by a reference) such as diagrams, illustrations, photos and text samples may require further permission from the respective copyright holder. Library of Congress Cataloging-in-Publication Data Names: Banet, Catherine, editor. Title: The law of the seabed : access, uses, and protection of seabed resources / edited by Catherine Banet. Description: Leiden ; Boston : Brill Nijhoff, 2020. | Series: Publications on ocean development, 0924–1922 ; volume 90 | Includes bibliographical references. Identifiers: LCCN 2019048170 (print) | LCCN 2019048171 (ebook) | ISBN 9789004391550 (hardback) | ISBN 9789004391567 (ebook) Subjects: LCSH: Ocean bottom—Law and legislation. | Ocean mining—Law and legislation. | Marine resources conservation—Law and legislation. Classification: LCC KZA1390 .L395 2020 (print) | LCC KZA1390 (ebook) | DDC 341.4/55—dc23 LC record available at https://lccn.loc.gov/2019048170 LC ebook record available at https://lccn.loc.gov/2019048171 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 0924-1922 ISBN 978-90-04-39155-0 (hardback) ISBN 978-90-04-39156-7 (e- book) Copyright 2020 by the Authors. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. Koninklijke Brill NV reserves the right to protect the publication against unauthorized use and to authorize dissemination by means of offprints, legitimate photocopies, microform editions, reprints, translations, and secondary information sources, such as abstracting and indexing services including databases. Requests for commercial re-­­use, use of parts of the publication, and/or translations must be addressed to Koninklijke Brill NV. This book is printed on acid-free paper and produced in a sustainable manner. Contents Preface ix Rolf Einar Fife List of Illustrations xiii List of Abbreviations xiv Notes on Contributors xvii Introduction: The Law of the Seabed 1 Catherine Banet part 1 Defining the Seabed 1 Characterizing the Seabed: a Geoscience Perspective 21 Alvar Braathen and Harald Brekke 2 Deep-Sea Ecosystems: Biodiversity and Anthropogenic Impacts 36 Eva Ramirez-Llodra 3 A Short Human History of the Ocean Floor 61 Håkon With Andersen part 2 Delimitation of Jurisdiction over the Seabed and Right to Its Resources 4 Setting Maritime Limits and Boundaries: Experiences from Norway 85 Harald Brekke 5 The Seabed in the High North – How to Address Conflicts? 104 Alexander S. Skaridov 6 Current Human Impact on Antarctic Seabed Environment and International Law 125 Yana Evgenyevna Brazovskaya and Gulnara Flurovna Ruchkina vi Contents part 3 Exploitation of Non-Living Resources from the Seabed beyond National Jurisdiction 7 Commercial Mining Activities in the Deep Seabed beyond National Jurisdiction: the International Legal Framework 139 Joanna Dingwall 8 Framework Legislation for Commercial Activities in the Area 163 Erik Røsæg 9 Maritime Security and Deep Seabed beyond National Jurisdiction 185 Edwin Egede part 4 Exploitation of Marine Biodiversity and Living Resources on the Seabed beyond National Jurisdiction 10 The Rights to Genetic Resources beyond National Jurisdiction: Challenges for the Ongoing Negotiations at the United Nations 213 Tullio Scovazzi 11 Marine Genetic Resources: a Practical Legal Approach to Stimulate Research, Conservation and Benefit Sharing 238 Morten Walløe Tvedt 12 Deep-Sea Bottom Fisheries and the Protection of Seabed Ecosystems: Problems, Progress and Prospects 255 Richard Caddell part 5 Principles Applicable to Sovereign States When Exploiting Seabed Resources within National Jurisdiction 13 Review of National Legislations Applicable to Seabed Mineral Resources Exploitation 287 Saul Roux and Catherine Horsfield Contents vii 14 European Union Law and the Seabed 315 Finn Arnesen, Rosa Greaves, and Alla Pozdnakova 15 China’s Domestic Law on the Exploration and Development of Resources in Deep Seabed Areas 335 Chelsea Zhaoxi Chen 16 Implementation of Article 82 of the United Nations Convention on the Law of the Sea: the Challenge for Canada 371 Aldo Chircop part 6 Building, Operating and Removing Installations on and under the Seabed 17 The Use of Sub-Seabed Transboundary Geological Formations for the Disposal of Carbon Dioxide 397 Nigel Bankes 18 Decommissioning of Offshore Installations: a Fragmented and Ineffective International Regulatory Framework 431 Seline Trevisanut 19 Re-using (Nearly) Depleted Oil and Gas Fields in the North Sea for CO2 Storage: Seizing or Missing a Window of Opportunity? 454 Martha M. Roggenkamp 20 International Investment Law and the Regulation of the Seabed 481 James Harrison 21 Navigating Legal Barriers to Mortgaging Energy Installations at Sea – the Case of the North Sea and the Netherlands 503 Jaap J.A. Waverijn viii Contents part 7 Conflicting Uses or Coexistence, Resolving Mechanisms and Protection Regimes: Towards a More Integrated Approach 22 Crossing the Sectoral Divide: Modern Environmental Law Tools for Addressing Conflicting Uses on the Seabed 527 Rosemary Rayfuse 23 Commercial Arrangements and Liability for Crossing Pipelines, Power Cables and Telecom Cables (Connectors) on the Seabed 553 Lars Olav Askheim 24 Balancing Competing Interests When Building Marine Energy Infrastructures: the Case of the Nord Stream Pipelines 572 David Langlet 25 Liability and Compensation for Activities in the Area 593 Kristoffer Svendsen Index 611 Preface A significant part of global trade, value creation, energy security and interna- tional peace and security depends on the seas and oceans, which cover around 71% of the planet’s surface.1 The same applies to the bulk of internet commu- nications, which rely heavily on submarine cables, and, no less so, to most of the world’s unknown biological resources and biodiversity. A number of chal- lenges and possibilities related to the oceans are highlighted in governmental strategies, including notably the Norwegian Government’s White Paper sub- mitted to the Norwegian parliament in 2017 and the Government’s Updated Ocean Strategy published in 2019.2 There is, in fact, good news as regards the toolbox provided by interna- tional law for policy-­­makers. A comprehensive, unified and universal legal framework exists for ocean and maritime spaces. This framework establishes a system of competencies and possibilities of proactive coordination, further regulation where necessary, and dispute settlement, together with a number of key principles and rules. It successfully promotes and integrates a variety of important goals, which previously could seem irreconcilable. Moreover, any further regulations must be fully consistent with this legal framework and not undermine the existing architecture.3 Instead of lawless black holes, issues of lack of compliance or implementation are unfortunately frequent. This framework did not appear overnight. It builds on a monumental series of building-­­blocks, imagine layer upon layer of legal mortar, stemming mainly from State practice and legislation, treaty- making and case- law. The result- ing masonry is solid. Its most sophisticated expression is found in the United 1 The author is solely responsible for this contribution, which was written before the author assumed his current position. 2 ‘The place of the oceans in Norway’s foreign and development policy’ – Meld. St. 22 (2016–2017) Report to the Storting, <https://www.regjeringen.no/contentassets/1b21c0734b5042e489c242 34e9927b73/en- gb/sved/stm201620170022000engpdfs.pdf>; and ‘Blue opportunities – The Norwegian Government’s Updated Ocean Strategy’, 3 June 2019, <https://www.regjeringen .no/globalassets/departementene/nfd/dokumenter/strategier/nfd_havstrategi_20 19_engelsk.pdf>. 3 See article 311 (2) and (3) of the United Nations Convention on the Law of the Sea, concluded 10 December 1982, entered into force 16 November 1994, 1833 UNTS 396 (UNCLOS). See also, for example, paras. 6–7 of resolution 72/249 adopted by the United Nations General Assembly on 24 December 2017 on an ‘International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’, UN Doc. A/RES/72/249. x Preface Nations Convention on the Law of the Sea (UNCLOS).4 Among its stated aims is to make “an important contribution to the maintenance of peace, justice and progress for all peoples of the world,” The number of parties bound by this convention