Deep seabed mining risks irreversible damage, monopolisation and exploitation.
By Pradeep A. Singh, University of Bremen
The world’s ever-growing appetite for metals has pushed the mining sector to search for new potential sources, putting the extraction of deep-sea minerals on the horizon.
A race is now on between those that regulate deep sea mining and those hoping to extract its riches.
Deep seabed mining is generally at depths greater than 200 metres, and possibly beyond 5,000 metres, an area that despite incremental improvements in scientific understanding over the last few decades, remains poorly understood.
Scientists do know that commercial-scale deep seabed mining can cause substantial, long lasting and potentially irreversible (on human timescales) impacts on the marine environment and its food web.The United Nations Convention on the Law of the Sea 1982 (UNCLOS), a widely ratified multilateral treaty, covers the various maritime zones and the corresponding rights and obligations of states — including ensuring the protection and preservation of the marine environment.
Beyond the limits of seabed areas within national jurisdictions (200 nautical miles from the coastline) lies the international seabed, otherwise known as the Area, where a unique and dedicated legal regime created under UNCLOS exists.
The Area and its mineral resources are legally designated as the common heritage of humankind. Access is via an international organisation created under UNCLOS known as the International Seabed Authority (ISA). The ISA administers the mineral resources of the Area — both rules related to exploration and ensuring the marine environment is protected from such activity.Over the last two decades, the ISA has adopted regulations for the exploration of three mineral deposits – polymetallic nodules, polymetallic sulphides and cobalt-rich ferromanganese crusts, which contains high-grade metals such as copper, nickel, iron, and zinc – and has already awarded 31 exploration contracts (as of 1 January 2022). The majority of these contracts are for the exploration of polymetallic nodules in the nodule-rich region of the Clarion-Clipperton Zone in the Pacific Ocean.
But no exploitation contracts have so far been awarded because the ISA is yet to adopt exploitation regulations. It has been negotiating the draft text since 2019.
The ISA is under pressure to finalise exploitation regulations after the Republic of Nauru triggered a two-year deadline provision in June 2021. If this deadline is not met, any pending exploitation applications will still need to be considered despite the absence of regulations. The pandemic has affected the ability to have in-person negotiations and many crucial matters still need to be resolved over a short time period. The ISA’s transition from exploration to exploitation deserves close scrutiny as its implications could be far-reaching – once exploitation activities are allowed to commence, it could be difficult to reel things back.
The current models of payment for commercial mining incentivises mining operators by imposing low rates that fail to take into account the natural capital value of the deep ocean and provide fair compensation to humankind for losses incurred. The ISA and its member states must agree on an appropriate mechanism for the equitable sharing of benefits derived from deep seabed mining in the Area before allowing exploitation to commence.
While ISA member states may directly apply to the ISA for mining contracts, they can also choose to sponsor state-owned enterprises or nationally-based private entities, or foreign companies that are under the effective control of the state(s).
In recent years, developing countries, particularly small island states, have increasingly sponsored locally registered companies that are wholly owned or controlled by foreign companies to conduct exploration activities. These sponsored entities essentially operate from developed countries but have been granted access to reserved areas, or sites with commercial value that have been set aside exclusively for developing countries under UNCLOS, and do not appear to be under the effective control of the sponsoring state.
One example is The Metals Company (formerly DeepGreen), a foreign company that obtained exploration rights over three separate contract areas that are all located within reserved areas.It did this through wholly-owned subsidiaries and other arrangements with locally-based companies, under the sponsorship of Nauru, Tonga and Kiribati respectively, without being named in any of the ISA contracts. Left unchecked, such sponsorship practices could pave the way for exploitation monopolies.
Some sponsoring states may also lack the capacity to supervise exploitation works, may impose lesser environmental conditions, or simply form a relationship of convenience as opposed to a partnership. And by agreeing to sponsor an entity, sponsoring states expose themselves to potential responsibility under international law and could stand to be liable for environmental damage caused by the sponsored entity.
In future, the ISA should foster greater involvement of developing countries in its work by enhancing training and capacity building efforts, as well as facilitating transfers of technology from developed countries to developing countries. The ISA should also expedite the operationalisation of its own entrepreneurial organ, the Enterprise, which was established under UNCLOS to be the vessel through which all states, including and especially developing ones, can participate in seabed exploration and exploitation.
Some say it’s necessary to mine the seabed in order to secure the metals required for clean energy to tackle climate change. Premised on the projection of metal supplies and demands over the next few decades, this remains a subject of intense debate. Those pushing this argument are private entities currently engaged in exploration activities, and of late, the ISA Secretariat.
In any case, the picture that is being painted appears to be incomplete. There is some truth in positing that the clean energy transition requires more metals and that acquiring them from terrestrial sources may require current mining operations to go deeper and further, thereby causing more environmental harm. But the problems with land-based mining are known and can be managed through better techniques and stricter regulation.
Mining in a liquid environment that is remote and largely out of sight is a lot more challenging and difficult to manage. Enabling deep seabed mining to commence could in turn undermine global efforts to meet the sustainability agenda.
Mining the seabed may contribute metals that are used to advance sustainable development, but that does not make the activity itself sustainable — the end does not necessarily justify the means.
Deep seabed mining is being considered at a time when the ocean is already facing unprecedented levels of threat. In 2018, ISA Secretary-General Michael Lodge said “mineral exploitation cannot be permitted to proceed unless the [ISA] is satisfied that rigorous environmental safeguards are in place”.
Decisions taken by the ISA today will not only concern the present generation but the rights and interests of future generations. With the clock ticking and many possible pathways ahead, all eyes are now on ISA member states.
Pradeep A. Singh is a doctoral researcher at the University of Bremen, Germany and independent legal consultant. He has written extensively on topics related to public international law, the law of the sea, environmental law, climate policy, ocean governance and deep seabed mining. As an observer delegate, Pradeep attends and participates in the work of the ISA.
Editors Note: In the story “Final Frontiers” sent at: 03/02/2022 16:37.
This is a corrected repeat.