Deep sea deadline: The rush to mine the deep sea
Exploring the issues of regulating deep sea mining following the Republic of Nauru’s request to the International Seabed Authority to formulate rules for exploitation of the mineral resources in the ‘Area’.
Article 1(1) of the United Nations Convention on the Law of the Seabed (UNCLOS) defines the ‘Area’ as the seabed, ocean floor and subsoil thereof, beyond the limits of national jurisdiction. Article 136 confirms the deep seabed and its resources to be the ‘common heritage of mankind’, requiring mining activities to be carried out for the ‘benefit of mankind as a whole’ as per Article 140. As such, pursuant to Article 137, sovereignty claims cannot be made over resources in the Area and States are prohibited from conducting unilateral deep seabed mining activities.
The International Seabed Authority (ISA), as custodian of the ‘Area’, is an autonomous, international organisation established under Article 156 UNCLOS and is chartered with the responsibility of controlling the exploration for and exploitation of mineral-resource related activities within the deep sea, beyond national jurisdiction.
Deep sea mining (DSM) refers to the processes of retrieving metal-rich resources from the ‘Area’. Several parts of the Area are rich in rare earth elements, making its exploitation highly desirable and potentially profitable for mining companies. DSM companies are interested in the exploitation of polymetallic nodules found on Abyssal plains, seafloor massive sulphide deposits surrounding hydrothermal vents and the cobalt-rich ferromanganese crusts of underwater mountain ranges, for mineral gain. Although contested, it is argued that the mineral resources provided by DSM could facilitate the development of greener economies, as they are utilised in the production of beneficial technology such as electric car batteries and sustainable energy production. The successful transition to renewable energy is estimated to require three billion tonnes of minerals and metals alone.
Articles 145 and 194 of Part XII UNCLOS, requires the ISA to ensure the protection of the marine environment throughout their activities. Further affirmed by their 2018 Strategic Plan and 2019 High-Level Action Plan which comply with Goal 14 of the 2030 SDGs, the ISA is required to develop, implement and review their regulatory framework to ensure the best environmental practices. This effectively demands a balance between economic exploitation and environmental protection.
The deep sea remains mankind’s least explored geographic area and so the true impact of DSM cannot be accurately predicted. Primary concerns include unknown biodiversity loss, habitat destruction through mining technologies and high pollution risks, including both the release of toxic substances and noise pollution, which is detrimental for marine mammals in particular. Thus, a question mark is cast as to whether the ISA can comply with Articles 145 and 194 whilst regulating DSM.
Implementing mitigation methods to minimise the consequences of DSM on biodiversity and prevent serious and irreversible harm to the marine environment is advisable. One possible approach is avoidance, which means establishing protected areas where no anthropogenic activity occurs. Another is minimisation, which requires establishing un-mined biological corridors and relocating animals from the site of activities to areas where no activity can take place. Lastly, restoration, which entails the assisted recovery of damaged ecosystems, is also suggested. Nevertheless, it remains difficult to predict if these methods can successfully restore or mitigate the impacts on the marine ecosystem.
The Republic of Nauru’s request
Despite environmental concerns, increasing demand for minerals and metals has led to an increased interest in exploration of the seabed’s mineral resources. While the ISA has adopted rules and regulations on exploration, having already entered into 31 exploration contracts with 15 companies, exploitation regulations remain in a draft stage. Some countries consider the technology to be sufficiently mature to begin exploitation and are eager to commence.
On 25 June 2021, Nauru activated the ‘two-year rule’ under the 1994 Implementing Agreement of UNCLOS Part XI, Section 1(15) of the Annex. This required the ISA to finalise exploitation regulations for the ‘Area’ within two years. The Agreement also requires the ISA to consider and ‘provisionally approve’ all plans of work, should they exceed the deadline. This has put the ISA under significant pressure to complete the exploitation regulations, despite the considerable uncertainties that remain.
This triggers several legal concerns. Firstly, the conflicting two-year rule and the precautionary principle. The latter principle prohibits States from claiming scientific uncertainty to avoid responsibility for environmental damages. Allowing States to pursue DSM whilst being unaware of the potential environmental impacts, contravenes this principle. Secondly, the acceptable threshold of harm in assessing ‘plans of work’ remains unclear at present with no overarching environmental strategy. The draft regulations vaguely reference terms like ‘best available scientific evidence’ and ‘best environmental practices’, without proper definitions. Moreover, current rules rely on Environmental Impact Assessments (EIA) for environmental protection, which are only generically regulated. There is additionally little experience in conducting DSM specific EIAs. Marine experts are therefore demanding a pause in DSM until more scientific knowledge is available.
Finally, the financial terms of exploration contracts remain unresolved. Article 140 UNCLOS requires that activities in the ‘Area’ shall be carried out for the benefit of all mankind, thus taking into consideration the interests and needs of developing States. The 1994 Implementation Agreement Annex Section 9(7) also refers to the equitable sharing of financial and other economic benefits derived from activities in the ‘Area’. The financial terms must be carefully designed to adequately comply with both.
The way ahead
Following growing opposition to DSM, the ISA faces criticism over its rush to develop the regulations before the deadline of 9 July 2023. To this end, the ISA has released a statement that, ‘the challenge now is to make the transition to exploitation, which must reflect best international standards and practices as well as agreed principles of sustainable development’.
This is a crucial moment for the future of the deep sea and its interconnected ecosystems. This issue demands substantial focus to ensure the sustainable governance of the ‘Area’ and its resources. As powerful economic forces support mining, it will likely go ahead. The ISA seems equally eager to initiate DSM, claiming that it could contribute to the achievement of several SDGs, especially related to poverty, economic growth and climate change. The crux of the issue remains that if the Mining Code ends up being a work of haste, the oceans may suffer permanent damage.