ABSTRACT
The United Nations Convention on the Law of the Sea (UNCLOS) sets the guidelines for the care of the world’s oceans. This article will review UNCLOS and how it shapes issues determining the scale on which the International Seaboard Authority (Authority) will or will not authorize deep-sea mining of resources in what has been designated in UNCLOS as the Area. Information about the legal framework of UNCLOS in the Area will be reviewed, ocean ecosystems and preservation of marine life considered, and information learned from other types of mining on land considered. It is suggested that the Authority may be assisted by creating an organ to gather and assess information on this question and that of the overall protection and preservation of the marine environment.
This article will add to a better understanding of Deep-Sea Mining as the Authority grapples with this issue with a view to ensuring protection and preservation of the sea and its ecosystems.
Part 1:Introduction
The United Nations Convention on the Law of the Sea, (UNCLOS)[1] establishes the objectives for humankind’s care of the sea. At an International Seabed Authority meeting in Jamacia in July, 2023, it was discussed whether Deep-Sea mining would be approved and, if approved, when rules would be put in place to allow mining to commence. This article will review the legal framework of UNCLOS for that part of the sea designated as the Area. It will look at the legal rules in place for the International Seaboard Authority (Authority) for its decision whether to authorize Deep-sea mining in the Area. It will also be considered how this matter fits the overall objectives of UNCLOS governance of the Oceans and the marine environment. The article suggests the Authority may be assisted in its work by creating a subsidiary organ or organs to gather and assess information on the impact of deep sea mining and the protection and preservation of marine ecosystems and marine environment.
Part 2: The UNCLOS Preamble
The preamble of the United Nations Convention on the Law of the Sea, adopted in 1982, (UNCLOS) indicates, in part, that the convention, while recognizing the sovereignty of States, desires to establish a legal order for the seas and oceans, which will facilitate international communication, and will promote the peaceful use of the seas and oceans , the equitable and efficient utilization of their resources, the conservation of resources, and the study, protection and preservation of the marine environment. The preamble goes on to say that the codification and progressive development of the sea achieved in the Convention will contribute to the strengthening of peace, security, cooperation, and friendly relations among all nations in conformity with the principles of justice and equal rights and will promote economic and social advancement of all peoples of the world, in accordance with the purposes and principles of the United Nations set forth in the Charter. Based on the concepts outlined in its Preamble, UNCLOS sets out laws and provides complex rules which govern how the oceans of the world and their resources can be used.
These laws and rules are of assistance to the International Seabed Authority as it works toward its determinations as to whether authorizations will be provided for deep sea mining or whether a moratorium will be put in place due to unknown effects of mining on the conservation of living resources and ensuring the protection and preservation of the marine environment.
In July, 2023, 168 member States met in Jamacia to discuss the risks of mining for minerals in the Area . No consensus was achieved, and the matter has been set over to 2025 to follow the issue and development of regulations by the International Seabed Authority as well as to respond to new information regarding marine ecosystems and scientific advances in both mining and care of the marine environment. In addition to calls to open applications for deep-sea mining, there are calls for a moratorium on mining on the sea floor.
The International Seaboard Authority will need to consider studies that suggest it is unnecessary to exploit minerals from the seabed and that the risks of doing so exceed the benefits to humanity.[2] It may be useful for the Authority to consider the provisions of UNCLOS for the Area using the holistic approach adopted by Thomas Berry in his book, the Great Work: Our Way Into the Future, where he wrote about the interaction of humankind and the natural world.[3]
The Authority will also need to consider how those who have signed and ratified UNCLOS will interact with those who have signed but not ratified UNCLOS, as this will have an impact on whether companies from those countries can apply for mining authority. One example is the United States, that takes its own approach to Deep- Sea Mining. [4] Other States adopt different positions, China and other countries support the advancement of deep-sea mining, with a group of countries and Non-Governmental Organizations opposing it. [5]The confusion that presently exists between national and international activities for both exploration and exploitation of deep-sea resources has been recognized and there have been suggestions for steps to be taken, one of which is to have one body handle these matters.[6]
This article will review information about these questions and provide examples of information about harmful effects that have occurred in on-land resource exploitation and mining.
Part 3: An Example of One Country’s National and International Position on Deep-Sea Mining
Given this article focuses on the question before the International Seabed Authority regarding deep-sea mining in the Area, it will not cover the complete the complex regime of UNCLOS. Regarding a Country or State’s’ national rights for deep- sea mining, such rights are provided in accordance with customary law of the sea and provisions of UNCLOS. With these rights, there are obligations to properly care for and not damage the marine environment.[7] The article will not review positions taken by the States for their national deep sea mining activities or their positions on deep sea mining outside their jurisdictions.
This article will, however, refer to the position taken by one country regarding the exercise of its national jurisdiction to engage in deep-sea mining, as well as its position on deep sea mining in areas outside its jurisdiction. This country, Canada has taken a clear position in relation to this matter.[8]
Ministers of Natural Resources Canada and Fisheries, Oceans, and the Canadian Coast Guard, indicated protection of marine ecosystems to be paramount. Their Statement refers to federal legislation in place to protect the environment and biodiversity. It refers to Canada’s position for protection of its domestic waters and specifically refers to protection standards that prohibit industrial activities such as mining and bottom trawling in protected areas. It also indicates that Canada has made investments in ocean health.
Their Statement indicates that Canada does not have a domestic legal framework that would permit seabed mining. It goes on to state that, in the absence of a rigorous regulatory structure, it would not authorize seabed mining in areas under its national jurisdiction.
It comments on the need for a precautionary and eco-system based approach to deep-sea mining and emphasizes that due diligence needs to be exercised in decision making regarding seabed mineral activity.
Their Statement set out that there is a requirement for a significant knowledge base on ocean environments, and an understanding of the potential impacts from seabed mining. The statement emphasizes that decisions must be informed by science and made for the effective protection of marine ecosystems. It is also noted that the decisions should take account of the environmental, economic, and social effects of the mining activity. It is also written that Indigenous Peoples, industry, provinces and territories, civil society, including non-governmental agencies need to be engaged on Canada’s seabed governance.
The Ministers’ Statement also addresses seabed mining outside areas in Canada’s national jurisdiction. It sets out that seabed mining should only take place in the case where protection of the marine environment can be provided by ensuring there is a rigorous regulatory structure in place that applies precautionary, and an ecosystem based approach. It specifies the importance of this approach being science based and transparent. As well, there is reference to the need for an inspection mechanism which can test effective compliance.
The Statement reviews work that has been done by Canada including its Protection, Production and Prosperity document, Global Biodiversity Framework, and its commitment to a High Seas Treaty. The Statement refers to the International Seaboard Authority and the Authority’s role to set standards and procedures to ensure the marine environment will not be seriously harmed. The Ministers conclude their Statement by indicating that Canada will “ …uphold the principles, rights, duties, and obligations in the United Nations Convention on the Law of the Sea and negotiate in good faith on regulations to ensure that seabed activities do not harm the marine environment and are carried out solely for the benefit of humankind as a whole.”[9]
The example of Canada’s national domestic waters position and for ocean areas beyond its jurisdiction provides one vision of one country’s national and international commitments. Similar statements will be made by other world countries which will impact the decision of the International Seaboard Authority on deep-sea mining as it proceeds with its determination.
Part 4: International Deep- Sea Mining – The Legal Framework
4.1 The Area
UNCLOS indicates the Area is the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. It goes on to say that no State can claim or exercise sovereignty of any part of the Area or its resources. Should that take place it will not be recognized under international law.[10]
4.2 Sections of Part XI
Section 1 of Part XI sets out general principles regarding resources in the Area, and minerals when recovered from Area. This is defined in Article 133.
Section 2 establishes principles governing the Area and its resources and the legal status and conduct of States acting in the Area. Of importance is Article 139 which sets out the responsibility of States Parties for damage caused by failure to carry out its responsibilities under this Part.
These provisions establish principles governing the Area and its resources and the legal status and conduct of States acting in the Area. Of importance is Article 139 which sets out the responsibility of the States/Parties for damage caused by failure to carry out its responsibilities under this Part. Illustrating its recognition of the importance of scientific knowledge in dealing with resources and minerals, articles are written about marine scientific research and transfer of technology and scientific knowledge. In particular, Artiles 145 and 147 deal with the protection of the marine environment, and Article 146 the protection of human life.
Section 3
The section provides detailed provisions for the development of resources in the Area. While recognizing potential use of resources in the Area, Article 150 indicates resources are to be used in an orderly, safe and in accordance with sound principles of conservation and avoidance of waste. These concepts are accompanied by detailed provisions in the section about the use of the resources. This includes responsibility for States to ensure they exercise effective control over activities by their State enterprises, persons, or the entities they sponsor.[11]
Section 4:
To handle the marine environment at the seabed and its resources in the Area, the International Seabed Authority was established in 1994. As part of its mandate, it has been determined that no authorization for sea-bed mining would be given until rules and regulations are put in place.
The makeup and duties of the Authority are further explained in Section 4. It consists of States/Parties of UNCLOS. It organizes and controls activities in the Area including administering its resources. The general provisions of the section provide that the Authority will recognize the sovereign authority of its members and will act in good faith under international law.
The section establishes the principal organs of the Authority, the Assembly, Council, and the Secretariat. As well, Article 170 establishes the Enterprise, to carry out activities directly in the Area as indicated in Articles 170 and 153(2). This includes the responsibility for the transporting, processing, and marketing of minerals recovered from the Area.
The Assembly is made up of all member States. It sets general policies for the Authority. The Council is composed of specified member states as set out in Article 161 which considers geographic location and economic interests. Its acts as the executive organ of the Authority and its duties are set out in detail in Article 162.
These organs of the Authority have decision making and operating authority to deal with activities in the Area. This article asks whether there may be a need for one more organ specifically to review matters relating to deep-sea mining in order to answer the many questions that have arisen about the need for deep sea mining in the Area, the recently identified ecosystems that have been identified, potential harm that can be caused by deep sea mining and economic and social questions for areas in which deep sea mining would occur.
Showing the scope of the Authority’s powers, specific Articles of Part 3 are referred to. First, Article 156(5) that indicates the Authority may establish such regional centers of offices as it deems necessary for the exercise of its functions. Second, Article 157(2), which provides that the powers and functions of the Authority are those expressly conferred on it by the Convention, including such incidental powers, consistent with the Convention, which are implicit in and necessary for the exercise of powers and functions with respect to activities in the Area.
This power is further illustrated in Article 158, which sets out provisions to facilitate the work of the Authority and its ability to address the deliberations required relating to the matter of Deep-Sea mining in the Area. As previously indicated, it sets out the principle organs of the Authority, the Assembly, the Council, the Secretariat, and the Enterprise.
It also provides the Authority the opportunity to create another organ to assist it in its deliberations. This opportunity is created by Article 158(3) which indicates that “…such subsidiary organs as may be found necessary may be established in accordance with this Part.”[12] Thus, the Article can be used by the Authority to establish an organ to review matters it deems necessary for its determinations on Deep-sea mining such as instructing experts to provide scientific information about new ecosystems, and for environmental management systems to protect those ecosystems. As well, it could look at potential environmental harm, and obtain evidence about the economic, and social effects of Deep-Sea Mining in specified regions.
Additional subsections include financial arrangements of the Authority, legal status, privileges and immunities, and suspension of the exercise of rights and privileges of members which illustrates the power the Authority to ensure the objective of the Convention are followed by members.
Knowing the role of the Authority, it is worthwhile to return to Section 3 to review how its provisions relate to the Authority. This article highlights three areas.
The first area is Article 150(e ) that indicates activities in the Area need to be carried out with a view to increased availability of the minerals derived from the Area as needed in conjunction with minerals derived from other sources (emphasis added). This is an important factor to be taken in account by the Authority in its decisions regarding authorizing extraction and production of minerals from the Area.
The second area is the extensive power of the Authority. In addition to the provision in Article 137 that indicates the Authority acts on behalf of humanity as a whole regarding rights to the resources in the Area, it is also set out that minerals recovered from the Area, may only be alienated in accordance with Part XI based on the rules, regulations, and procedures of the Authority.
The final area is provision to monitor activities of the development and use of resources taken from the Area. This material is relevant only should the Authority authorizes Deep-Sea Mining. The two Articles that establish these monitoring provisions are reviewed in this article with the caveat that they are only relevant should deep-sea mining be approved by the Authority.
The monitoring provisions are found in Articles 154 and 155. The first is Article 154, which establishes periodic reviews every five years from the entry into force of the UN Convention. These reviews require the Authority to review the manner in which the international regime of the Area established in this Convention has operated. It allows recommendations to be made for other organs to be put in place to improve the regime established in Part XI. This, along with Article 158(3) gives the Authority considerable scope to handle the operation of activities in the Area and to appoint subsidiary organs when required.
Article 155, provides the second monitoring provision. It requires a Review Conference to take place fifteen years after the earliest commercial production commences under an approved plan of work in the Area.
Part 5: Exploration Regulations and Management Systems
An organization, Managing Impacts of Deep Sea Resource Exploitation (MIDAS) reviewed regulations put in place by the Authority for prospecting and exploration of specific minerals in the Area, an Environmental Management Plan for the Clarion-Clipperton Zone, and regulations for the guidance of contractors for the possible environmental impacts from exploration of the minerals in the Area.[13] In its review it acknowledges the sensitivity of the Authority to possible harmful effects on marine ecosystems and methods suggested to address these situations. It writes about the requirements of State Parties to seek approval of the Authority for plans of work and financial and technical requirements required.
It also reviews the responsibilities and obligations of sponsoring State Parties established in a decision of the Seaboard Disputes Chamber of the International Tribunal for the Law of the Sea, where it was determined that a sponsoring State must exercise a high degree of “due diligence” in its activities. First, the entity it sponsors must comply with UNCLOS and with the Authority’s regulations. The article outlines the specific aspects which fall within the “due diligence” requirement. It does not mention there being an independent authority to monitor these activities. This may provide an opportunity for the Authority to create an organ for that purpose.
Part 6: The Marine Environment and its Ecosystems
The impact deep-sea mining could have on the marine environment and sea-bed ecosystems was a matter of contention at the July, 2023 International Seaboard Authority meeting. An example of these concerns is provided by a video published by the World Economic Forum about risks to the marine environment associated with deep-sea mining. [14] Within the context of UNCLOS, this is an important consideration to be addressed in relation to the law of the sea and the provisions of UNCLOS.
Part XII of UNCLOS deals with protection and preservation of the Marine Environment. It is the duty of the Authority to comply with the provisions in this Part in making decisions about any mining activity in the ocean. This Part emphasizes the importance of obtaining scientific evidence about the marine environment and sets out that State Parties are to share technology. It highlights the need to stop pollution of the ocean and for there to be global and regional cooperation for protection and preservation of the marine environment. This extends to notification of imminent or actual damage to be provided to States affected and the development of plans to deal with pollution and damage.
Research shows new ecosystems are being found in the deep-sea and that scientists are learning about previously unknown marine species. This has caused several Countries to seek a moratorium on deep-sea mining for the time required to assess the impact deep-sea mining could have on these ecosystems. Other Counties and actors take the position that laws and regulations can be put in place to allow the extraction of important minerals from the deep-sea.
Based on reports at the time of the International Seaboard Authority meeting in Jamacia, issues as to the environmental impact requires further discussion. There wasn’t closure on the rules and regulations to be put in place for mining activities or whether deep-sea mining should proceed. [15] Discussions will continue at the next International Seaboard Authority Meeting on this matter.
News reports show proponents of deep sea mining and those who question the uncertainty of the impact is will have on the marine environment. For example, one book on Deep Sea Mining discusses outstanding issues regarding mining and metallurgical extraction.[16] These issues expand given new information about the complexity of marine ecosystems both in the deep sea and how mining would impact other marine life.
This article does not provide answers to the dilemma facing the International Seaboard Authority. It provides insight about how the work of the Authority can conform with the objectives of UNCLOS and provides information to illustrate the challenges the International Seaboard Authority is facing when addressing the matter of deep-sea mining in what has been said to be one of the last frontiers of earths bounties that can be used for the benefit of humankind. This frontier continues to provide challenges as to whether humankind can develop methods to protect and preserve the marine ecosystems that play a part of the earth’s system of climate and species management.[17]
Part 7: Insights from Resource Exploitation and Mining on Land
While one cannot use mining and resource exploration of resources such as oil and gas, coal, and minerals such as gold, to show with certainty problems that could occur with deep-sea mining, these practices do shed light on areas which should be considered in the assessment of whether to proceed with deep-sea mining, and the legal and regulatory systems to protect the marine environment should it proceed. [18]
Research illustrates the environmental impacts from the oil and gas industry, and gold mining include disruption of migratory pathways, degradation of animal habitats, noise, release of air and chemical pollutants.[19]
Organizations that have written about the potential negative effects of deep-sea mining have raised concerns about similar effects occurring to an ecosystem with which people do not yet fully understand.
Part 8: Settlement of Disputes and Advisory Opinions,
Section 5 of Part XI deals with the establishment of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea. Section 5 provides Member States and the Authority with a clearly defined jurisdiction for the Seabed Disputes Chamber. It also provides provisions which govern the manner in which this jurisdiction is to be exercised.
Part 9: Overseeing Activities in the Area.
Given the ongoing development of knowledge about marine ecosystems and the UNCLOS focus of protection of both marine life and resources, a suggestion is for a new UNCLOS organ to assist the Authority in its deliberations and determinations. This would create a body with duties similar to the Intergovernmental Panel on Climate Change (ICPP), an objective and transparent group to review and assess expert opinion on evolving scientific, technical, and socioeconomic information regarding risk of harmful impacts on marine ecosystems of any extraction activities in the Area.[20]
This new organ could be created for purposes similar to those for which the Intergovernmental Panel on Climate Change (IPCC) was created to address climate change, but in this case it would provide the Authority with regular scientific assessment on marine ecosystems in the Area, the implications and impact of Deep-Sea Mining on these ecosystems and marine life, risks associated with deep-sea mining, and possible adaptation and mitigation options should Deep-sea mining be authorized.
Another matter where assistance may be valuable is determining what aspects of UNCLOS have become customary international law. [21] The body could also review the confusion in deep-sea mining activities taking place in national and international waters.[22]
Part 10. Conclusion
Research conducted for this article shows additional information is required prior to the Authority being in a position to proceed with establishing the required rules, regulations and management systems required to proceed with deep-sea mining activities should the international community proceed with this activity. The International Seaboard Authority, and potentially, its subsidiary organs will also need to clarify the confusion between national and international activities for both exploration and exploitation of deep-sea resources. With this, UNCLOS can ensure it can manage resources in the Area for the benefit of humankind and protect and preserve the marine environment.
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