Humankind’s transition to ‘low-carbon economies powered by ‘green energy’ has increased the demand for strategic metals such as Manganese, Nickel, Cobalt, Gold, Silver and rare earth. When coupled with the exhausting land resources, it has resulted in a ‘race to the bottom’, literally. This race to the deep-sea is rooted in the fact that the vast expanse of oceans holds enough of these minerals to power the earth’s factories for centuries, thus, making the seabed a ‘treasure trove’.
The deep-sea is the area of the ocean below 200 meters and covers more than 65% of the earth’s total area, making it the world’s largest environment. These ‘future minerals’ are retrieved from the International seabed area (the ‘Area’), simply defined as “the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction.” Further, the process employed to fetch the minerals from the deep sea is called Deep-sea Mining (‘DSM’). Three types of resources generating interest in DSM are Polymetallic Nodules, Polymetallic Sulphides and, Cobalt-Rich Ferromanganese Crusts.
The International Seabed Authority (the ‘ISA’) regulates the process of DSM and allied activities like exploration, identification and environment impact assessment (‘EIA’). The ISA was founded in 1994 under Part XI of the United Nations Convention on the Law of the Sea (‘UNCLOS’) and it’s 1994 implementing the agreement. The two most important functions of the ISA are (1) allocation of the seabed area to state parties for exploration, and (2) ensuring the protection of the marine environment from harmful effects arisingfrom such activities. Additionally, it is also responsible for developing a legal, financial and technical framework for deep-sea exploration.
The ISA has entered into 15 contracts with 29 contracting parties for and imminent exploitation of these resources. Key players in this industry are China, Japan, Russia, France, South Korea, Germany and India.
There is a catena of technical and economic challenges in DSM. Operating in unexplored, unknown and low light, the high-pressure deep-sea environment makes the mining process so difficult as if it were on the moon. Other than these challenges, DSM also presents two other problems. First is a list of environmental problems associated with it. Concomitantly, the second problem is the frail international law on the subject.
Environmental Problems associated with DSM: An Ocean of Problems
From shipping to fishing to oil drilling, our modern economies are fueled by our oceans. Now, our transition to ‘clean energy’ is leading us to the depths of the ocean. Deep seas ecosystem become even more important as it captures and holds over 1.5 million tons of carbon dioxide from the atmosphere. The DSM industry, although still in its infancy, poses a grave (and irreversible) threat to the deep-sea environment.
Our knowledge of the deep-sea ecosystem is very limited due to extreme conditions. Thus, less than 10% of our oceans are explored and charted to date. Even, the surface of Mars and Venus has been mapped and studied in greater detail. Resultantly, research on the impact of DSM on the seabed and the benthic organism is also very limited and small scaled.
Some major concerns arising from DSM and allied activities are 1) Effect of sediment plumes on benthic organisms; 2) Accidental discharge/leakages or spillage; 3) Tailing dump with heavy metals in case of on-site processing; 4) Effect of light and sound on deep-sea flora and fauna etc.
Evidence, though scant, suggests that in most cases the disrupted ecosystem will take up to hundreds of years to get fully restored. In many cases, such effects can be irreversible as well. Since life in the deep sea is adapted to absolute darkness, silence and poor oxygen levels, light and sound introduced in the environment can impair the ability to detect prey and change migration patterns. Similarly, sediment plumes released in mid-waters can affect visibility and oxygen levels and clog feeder filters in benthic organisms. By the same token, water with heavy metals discharged after processing can get bio accumulated and make its way to humans through food.
The recent accident in the deep sea proves that accidental discharge concern is more than mere skepticism. Large scale DSM risks the extinction of hundreds of species even before their discovery.
Finally, these concerns are further aggravated because of the weak and almost toothless law regulating DSM. This soft approach towards environmental protection can turn tech bestowed utopia into a human-induced catastrophe.
A legal challenge in making DSM sustainable
The UNCLOS governs all the activities undertaken in the oceans and the seas. Therefore, it is often referred to as the ‘constitution for the oceans’. It deals with a vast range of ocean issues with a special focus on the conservation of the marine environment. Specifically, Part XII of the convention calls for cooperation among the States, developing rules and legislation to mitigate pollution, facilitating the transfer of technology etc.
However, the current legal regime is far from perfect and faces a plethora of challenges. The first and foremost legal challenge in preserving oceans is legislating globally unifying and binding law. Unlike manmade boundaries on land and like the atmosphere, the marine environment has no natural boundaries. The entire ‘ocean space’ is one whole, closely interrelated body. Compartmentalizing the oceans into national territory and international waters gives a degree of discretion to States to skirt their obligations. Any activity triggering adverse effects within national territory will affect entire marine system and not just concerned national territory, Thus, in practice, the jurisdictional and spatial approach of law is the same as providing an option to the State parties to pollute or not pollute the oceans. Undoubtedly, this approach enables the polluting entity to bypass their obligation to preserve the oceans – our common heritage.
The second pressing challenge is the employment of general and precautionary language. Such wording reduces the already feeble international law to a toothless tiger. For instance, Article 192 of Part XII of the UNCLOS imposes an unqualified condition in general words that “States have the obligation to protect and preserve the marine environment.” Other phrases used in the convention, such as “as far as practicable”, “in accordance with capabilities”, “as far as possible” etc. negate the practice of these provisions. In context of DSM industry, such wording will rule out the possibility of a commercially responsible management of meaning. Coupled with first challenge, it will also give an easy way out to the polluting parties.
The third challenge faced is an overreliance on law and under reliance on science. In multiple cases, the International Tribunal for the Law of the Sea (ITLOS) relied on tweaking legal principles rather than engaging with evidence. What’s more, the UN General Assembly also decided to develop an instrument to conserve ‘the areas beyond national jurisdiction (ABNJ)’. Such resolve undermines the integrated nature of the oceans and is not only scientifically flawed but also legally and logically handicapped. This challenge should be resolved in timely fashion before DSM projects like Solwara 1 and Solwara 2 falling with Exclusive Economic Zones (EEZ) of Papua New Guinea and other such projects can take off. These projects can have long lasting detrimental effects on the entire marine ecosystem without bearing the responsibility for the same under existing framework.
These challenges ahead of the current law explain the failure of the United Nations Framework Convention on Climate Change (UNFCCC) in curbing the emission of greenhouse gases and removing a garbage patch three times the size of France!
The way forward
The ISA should take the daunting challenges head-on to make the DSM industry environmentally sustainable and commercially viable. The authority not only represents the stakeholder of the industry but is the sole representative of the future generations as well.
It should, therefore, switch to the integration approach from the present fragmentation approach and treat the whole of the ocean space as one entity. Any legal instrument governing mining activities and environmental conservation must be extended to the coastline within national jurisdiction to make such an instrument pragmatic and operational.
It is at this juncture that role of the ITLOS and specifically, the Seabed dispute chamber (Art. 186, UNCLOS) become important. The tribunal must ensure that nations and their entities involved in DSM comply with the rules and regardless of their developmental status, liability must be imposed on the violating parties. It should move towards a science-heavy precautionary approach (used in Southern Bluefin Tunacases) or setting the burden of proof bar high (used in Pulp Mills case).
Likewise, the ISA is authorized to suspend or terminate an exploration contract with a party in case of non-compliance with the regulations. However, the legal framework must emphasize that such suspension does not preclude the party from damages and costs. Undoubtedly, extensive monitoring of the activities is sought and if the need arises, penalizing or even criminalizing certain practices (like intentional dumping of waste, over-extraction, misleading EIA) might ensure better compliance.
In a nutshell, the ISA must strive to develop a globally unifying instrument governing the DSM and allied activities by employing an integrating and multi-faceted approach. The problem of seabed pollution, if not eliminated, can only be mitigated by a thoughtful instrument that extends to the national jurisdiction to balance the delicate ecological balance of the marine ecosystem with needs of the humankind.