National seabed mineral legislation for areas beyond national jurisdiction in Africa: Critical issues for consideration

• Jurisdiction: South Africa
• DOI: https://doi.org/10.47348/JOGA/2021/a2
• Date: 08 April 2021
• Pages: 38-78
• Published date: 08 April 2021
• Author: Nwapi, C.
• Citation: 2021 JOGA 38

https://doi.org/10.47348/JOGA/2021/a2 38

NATIONAL SEABED MINERAL LEGISLATION

FOR AREAS BEYOND NATIONAL

JURISDICTION IN AFRICA: CRITICAL ISSUES

FOR CONSIDERATION

CHILENYE NWAPI†

Commonwealth Secretariat, London

DANIEL WILDE‡

Commonwealth Secretariat, London

Under the auspices of the African Group, African States have been

active participants in the development of the international legal

regime for the exploitation of seabed minerals in the international

seabed area (‘the Area’). However, whilst 30 exploration contracts

have been issued since the adoption of the Exploration Regulations

in 2013, an African State has yet to sponsor a contract. The surprising

lack of an African sponsoring State has led to calls for Africa to join

the host of sponsoring States from other continents. Sponsoring States

are required to develop national legislation to establish the modalities

for the selection of contractors and to ensure that only contractors

with the requisite technical and financial capabilities are selected.

This article undertakes a critical assessment of the pros and cons of

African States becoming sponsoring States and analyses critical

issues that African States should consider when developing national

legislation for seabed mining in the Area. Some of those critical issues

include the types of sponsorship arrangements possible, the fiscal

regime and the institutional framework necessary to ensure that the

sponsoring State effectively discharges the obligations imposed by

sponsorship. Whether African States would be better off standing

aloof from the exploitation of the seabed mineral resources of the

Area while the rest of the world engages therein is debatable. We

observe, however, that the lack of an African sponsoring State has

been a unifying factor for Africa in the negotiation of the Exploitation

Regulations because this factor has ensured that the continent speaks

with one voice.

† PhD (University of British Columbia).

‡ PhD (University of Bath). The views expressed in this article are

entirely those of the authors and do not represent the views of the

Commonwealth Secretariat. The authors thank Nicholas Hardman-

Mountford, Jeff Ardron and Alison Swaddling for their insightful

review of the initial draft of this article.

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2021 JOGA 38

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National seabed mineral legislation for areas beyond national

jurisdiction in Africa: Critical issues for consideration 39

https://doi.org/10.47348/JOGA/2021/a2

[Keywords] Law of the sea, the Area, seabed mining

regulation, sponsoring States, sponsorship arrangements,

African States, International Seabed Authority, Enterprise,

African Group, sustainable development

I INTRODUCTION

African States have recognised the economic importance of

seabed mining for the continent as far back as 1988 in the Kampala

Programme of Action on the Development and Utilisation of

Mineral Resources in Africa (KPA).1 The Programme observed

that ‘sea-bed mining would be a possible future alternative

source of nickel, copper, manganese, cobalt and other minerals

produced in land-based mining operations’.2 However, there

were no further supra-national-level discussions about seabed

mining in Africa for about three decades, despite the adoption of

the 2050 Africa’s Integrated Maritime Strategy (AIMS) in 2014.3

AIMS provides a broad policy and institutional framework

for the sustainable exploitation of Africa’s seas and oceans.

Nevertheless, it largely ignores the importance of seabed

mining as a blue economy sector.4 However, the African Union’s

Agenda 2063, which was launched in the same year as AIMS,

recognises seabed mining as a potential blue economy activity

and a goal was set to ‘commission and complete prospection of

the seabed for minerals and hydrocarbons by 2023’.5 In 2017,

the African Mineral Development Centre, the International

1 See United Nations Economic Commission for Africa (UNECA)

Africa’s Mineral Resources Development and Utilization (UN Doc.

ECA/NRD/TRCDUHRA/9 (1988)) (available at https://repository.

uneca.org/bitstream/handle/10855/5709/Bib-44970.pdf?

sequence=1&isAllowed=y, accessed on 24 May 2020).

2 Ibid at 4.

3 (2016) 1 JOLGA 202.

4 The principal focus of AIMS is the maritime (shipping) industry. Its

closest reference to seabed mining is in connection with the development

of an integrated coastal area management plan in terms of which member

States are expected to ‘harmonize the different sectors pursuing marine

resources exploitation such as […] oil, gas and mineral exploration […]’

(par 88). See further E Egede ‘Institutional gaps in the 2050 Africa’s

Integrated Maritime Strategy’ (2016) 1 JOLGA 1–27 at 19–26.

5 African Union Commission Agenda 2063: The Africa We Want – A

Shared Strategic Framework for Inclusive Growth and Sustainable

Development – First 10-Year Implementation Plan 2014–2023 (2015) 58

(available at www.un.org/en/africa/osaa/pdf/au/agenda2063-first10

yearimplementation.pdf, accessed on 18 June 2020).

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40 JOURNAL OF OCEAN GOVERNANCE IN AFRICA

https://doi.org/10.47348/JOGA/2021/a2

Seabed Authority (ISA), the Norway-based GRID-Arendal and

the Republic of Uganda, with the support of the African Union

Commission, the UN Economic Commission for Africa (UNECA)

and Pew Charitable Trusts, jointly convened a first-of-its-kind

workshop in Kampala, to raise the interest of African States in

the development of mineral resources in Africa’s continental

shelf and the adjacent international seabed area (‘the Area’).6

The workshop also discussed, among other things, the strategies

that African States could utilise to ‘build capacity [and] engage

in deep seabed activities in the Area […]’.7 As a result, the

UNECA argued in 2018 that it was in the strategic interest of

Africa to join other States in participating ‘in the activities

of the international seabed area’8 and the 2019 Africa Blue

Economy Strategy (ABES) boldly recognises the importance

of seabed mining to Africa’s economic transformation.9 ABES

anticipates that seabed mining in the African States’ exclusive

6 See ISA Marine Mineral Resources of Africa’s Continental Shelf

and Adjacent International Seabed Area: Prospects for Sustainable

Development of Africa’s Maritime Domain in Support of Africa’s

Blue Economy (2017) 12 (available at https://isa.org.jm/files/files/

documents/ts20.pdf, accessed on 28 September 2020).

7 Ibid at 40. The workshop discussed other issues that are important to

Africa in connection with seabed mining, including: (1) the importance

of the ISA and other entities created by the LOSC as well as the

significance of the law of the sea and related rules, regulations and

procedures on the sustainable development of the African continent;

(2) best practices regarding marine mineral activities in the world

oceans and the prospects for development of responsible prospecting,

exploration and exploitation activities on the African continental

shelf and adjacent international seabed area; (3) the importance of

the geological, mineral and environmental information to support

decision-making, investment and governance of the African continental

shelf and adjacent international seabed areas; (4) strategies for the

establishment of African Centres of Excellence on seabed mapping

and spatial planning; and (5) possible public–private partnerships and

the prospects and requirements for application for a plan of work for

exploration in the international seabed area by African companies and

governmental agencies, including those from landlocked countries.

8 United Nations Economic Commission for Africa (UNECA) ‘Opportunities

and challenges to bolster sustainable development and socioeconomic

transformation’, Issues Paper, (2018) 19, (available at www.uneca.

org/sites/default/files/uploaded-documents/SROs/EA/HIGH-LEVEL-

SUSTAINABLE-BLUE-ECONOMY-CONFERENCE-2018/the_eca_issues_

paper_nairobi_2018_sbec.pdf, accessed on 25 May 2020).

9 African Union – Inter-African Bureau for Animal Resources Africa Blue

Economy Strategy (2019).

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