Eligibility criteria for deep sea mining activities in the Area: effective and enforceable?

Beyond the boundaries of national jurisdiction, the deep seabed and subsoil constitute ‘the Area’, which is governed by a comprehensive international regime that mainly regulates exploration and exploitation activities. The Area and its mineral resources are designated as ‘the common heritage of mankind’ and detailed rules on who can do what in this maritime zone have been adopted. With regard to who can access the Area (and the reserved areas within), it is clear that both States and non-state actors are formally eligible. However, the specific conditions that have been laid down – or at least the current implementation thereof – are surrounded by problematic issues that seem to undermine the fundamental principles of the international deep seabed regime. At the centre of it all is the ambiguous concept of ‘effective control’, which appears to invite different interpretations and consequently facilitates legal loopholes for applicants to exploit. This chapter analyses the applicable eligibility criteria, identifies the most prominent issues and suggests possible corrections.