国际海底区域采矿活动与铺设海底电缆之间适当顾及义务的履行

The Implementation of “Due Regard” Between Mining Activities and Submarine Cables in the International Seabed Area

随着国际海底区域(下文简称“区域”)内采矿活动的发展,以及铺设在“区域”之上的海底电缆数量的增加,未来二者出现冲突的可能性大增。虽然《联合国海洋法公约》规定了采矿活动和铺设海底电缆之间负有对等的适当顾及义务,但未言明如何具体履行该义务。目前在采矿活动和铺设海底电缆之间履行适当顾及义务,主要有物理隔离和冲突协调两种方案。前一种方案的优势是便于采矿活动承包者和海底电缆作业者具体执行,但障碍在于如何划设间距或保护区,因为采矿活动承包者都不愿意牺牲自己的合同区来划设间距或保护区。后一种方案的优势在于个案分析具有灵活性,但不足之处是具体活动实施者可能难以就实际措施达成协议,从而虚置适当顾及义务。此外,实现两类活动之间的适当顾及,不能仅仅依靠“区域”内矿物资源开发规章,还需要两个行业之间的沟通对话,以及各国的国内措施。

With the development of mining activities in the International Seabed Area(hereinafter referred to as “the Area”) and the increasing number of submarine cables, it is likely to raise conflicts between mining activities and submarine cables. The United Nations Convention on the Law of the Sea provides reciprocal “due regard” between mining activities and submarine cables. However, there is no provision for the implementation of it. At present, there are two approaches to implement “due regard”: one is physical separation, the other is conflicts coordination. The advantage of physical separation lies in the convenience of the operators and contractors to implement “due regard” so as to obtain certainty for both activities. But the difficulty of physical separation lies in how to establish separation distances or submarine protection zones in contract areas where contractors are reluctant to make concession. The advantage of conflicts coordination is flexibility arising from case-by-case solution. However, conflicts coordination may not facilitate operators and contractors to agree on practical measures in concrete cases, which would empty the obligation of “due regard” in the end. Moreover, the “due regard” among mining activities and submarine cables cannot be realized only by Exploitation Regulations, but also the dialogue between two industries as well as domestic measures of States.