Swetha Sethubaskaran*

Abstract

The declaration of the deep seabed, by the United Nations, as the common heritage of mankind is still considered to be a watershed development in the field of maritime law. It emphasized the prohibition on unilateral exploitation of deep seabed by developing countries and to hold it as a trust for the benefit of mankind as a whole. But the ongoing demand for mineral resources and metals has ignited the debate on how the mining has to be carried out in the deep sea bed to meet the demands rather than whether it should proceed. This essay discusses whether the deep seabed mining is a benefit to mankind as a whole or an unprecedented step towards commercialization of the common heritage of mankind. It also discusses the major setbacks in the management and governance of the activities in the area as a result of the absence of any rules and regulations which can be applied globally without any fragmentation.

Keywords: Deep seabed, common heritage of mankind, Deep seabed mining, inadequate legal framework, precautionary approach, environmental impact assessment, transparency.

INTRODUCTION:

The present generations have the responsibility to bequeath to future generations on earth which will not one day be irreversibly damaged by human activity[1].

The concept of the common heritage of mankind evolved as a principle for the first time with respect to the law of the sea to protect the ‘Areas Beyond National Jurisdiction’. After a detailed consideration of the different versions provided by the sovereign states justifying their claims over the sea bed and subsoil, the areas beyond the national jurisdiction as defined under the UNCLOS was to be considered as a province of the mankind as a whole and that the benefit accrued is to be equally distributed to all the nation-states. The reasons attributed to the conception of this principle are two-fold, firstly, the responsibility of the present generation to bequeath the available natural resources to the future generation and secondly, to prevent the abuse of power by the developed states over the developing states in appropriating the mineral resources to the benefit of the former. However, the concept of deep seabed and subsoil as the common heritage of mankind has still not achieved the status of jus cogens in reality due to the nonconformance of some countries to the principles put forth by the UNCLOS[2]. There is also a lack of an adequate legal framework to govern all the countries in respect of mining in the deep seabed in an absolute sense. The abundant benefits arising out of mining of  mineral resources from the seabed on one hand and the counter effect of the mining on the marine ecosystem and the climate change, on the other hand, the idea of deep sea bed mining as fascinating as it sounds will be nothing but an unprecedented step towards destruction of the environment. The essay discusses both the advantages and disadvantages of the deep seabed mining with a strong emphasis on the contribution made by the common heritage of mankind principle.

WHY DEEP SEABED MINING?

Deep seabed mining is the process by which the mineral resources are retrieved from the area of the ocean below 200m[3]. This region is referred to as the ‘Area’ under the United NationsConvention on the Law of the Sea (UNCLOS) and is considered to be the common heritage of mankind[4]. It is regulated by the International Seabed Authority (ISA), an organization established under the UNCLOS. The emerging needs of the mineral resources and metals have led us down a garden path of ascertaining the importance of deep seabed mining. The United Nations also considers that in achieving the sustainable development goals for the economic and social global benefit, the underwater mineral resources are of vital importance. The prime reason is that these resources help us fight off the major global issues such as access to clean water, access to renewable energy,etc. Deep seabed mining is also misunderstood as a better alternative to land mining. For example, Cobalt is found abundantly in the Democratic Republic of Congo which is one of the poorest nations of the world[5]. The monotonous land mining has resulted in the depletion of these territorial resources. So even for a comparatively lesser amount of mineral resources, extensive exploitation is required. This might result in the destruction of the terrestrial ecosystem altogether. On the other hand, the deep sea bed is flourished with the mineral resources that even mining on one particular site will be sufficient to satisfy the existing and future needs as a whole. Thus in terms of economic benefit, the deep seabed mining is deceivingly efficient. It will also be a lifesaver to the terrestrial ecosystem.

FLIPSIDE OF THE DEEP SEABED MINING:

Deep seabed mining for mineral resources is not the first in the line of exploitation of marine resources as an alternative to terrestrial mining. The continental shelf which was mainly used for offshore oil and gas exploration became an area of interest for ore deposit due to the emerging needs[6].But the ongoing demand has forced the mining companies to venture into the seabed to help meet the demands. As a result, the International Seabed Authority has granted licenses to twenty-nine contractors for a period of 15 years for exploration of the seabed[7]. The license issued by the ISA is for exploration of polymetallic sulphides in the Mid-Atlantic Ridge, the Central Indian Ridge, and southwest Indian Ridge, of cobalt-rich crusts in the Western Pacific Ocean, polymetallic nodules in the region namely Central Indian Ocean Basin and Clarion-Clipperton Fracture Zone[8].Before the commercial exploitation can take place the ISA has to complete drafting the mining code to regulate such activities. As huge swathes of the deep seabed have been licensed for exploration, it is ideal to consider the uncertainties pertaining to it.

Ecological impacts:

Deep seabed mining has the effect of severely and potentially causing environmental harms both at the mining sites and beyond. It might result in widespread species extinction and habitat loss[9]. The prospect of the seabed mining has invited stark warnings from environmentalists and scientists who have highlighted the risk of irreparable damage to the marine ecosystems including those which are unidentified. Some of the potentially harmful effects include[10]

• Removal of seafloor habitat and organisms
• Release of suspended toxic sediment plumes
• Alteration in thesubstrate of the seabed soil and its geochemistry
• Release of toxins and contamination from extraction and removal processes
• Noise and light pollution

Marine species including Greenland shark, corals are particularly sensitive to any trivial disturbance owing to their slow rate of growth. Research also provides that approximately14 more species which are exclusively spotted in a hydrothermal vent, a valuable source of massive sulphide deposits, could be included in the Red List of the IUCN in addition to 85 % of species already in the verge of extinction[11].

Ocean and climate change:

The ocean plays a significant role in influencing the Earth’s climate. The aquatic ecosystems and coastal ecosystems play a vital role in carbon sequestration and storage. Research shows that per unit of area sequester carbon more rapidly than the terrestrial ecosystems. Deep-sea sediments are known for storing ‘blue carbon’, the carbon which is actively absorbed by marine life and gets deposited once these creatures die[12]. Mining the deep sea bed might result in the release of the carbon dioxide thereby fuelling climate change crisis especially in light of the biodiversity and climate crises already facing the oceans and the natural world[13]. The climate change, in turn, weakens the ability of the ocean to provide for food, oxygen generation, carbon storage, etc. It also results in changes in water temperature, ocean acidification, deoxygenation affecting the entire aquatic ecosystem[14].

Toxic impacts of mining:

                Deep-sea mining may release toxic concentrations of metal ions into the environment. Lethal toxicity can be assessed in terms of the ’96-hour LC50’: it is a measure that helps in identifying the concentration of toxicant that kills 50% of the exposed organisms during a 96-hour period. This indicates only the acute impacts[15]. Mining might continue for decades subjecting the organisms to chronic metallic exposure thus causing an irreversible impact on the marine ecosystem[16].

LACK OF ADEQUATE LEGAL FRAMEWORK:

                The International Seabed Authority is an international organization responsible for assuring that the benefits of mining in the international waters beyond the national jurisdiction of any sovereign states are shared equitably. It also has an obligation to ensure that there is a fair share of benefits to developing countries and to protect the environment from harmful effects arising from mining activities in international areas[17]. However important limits in the ISA’s mandate and the concerns with the environmental management in practice underestimate the problems with the current fragmented system of ocean governance. The ISA is unable to avoid cumulative stresses on the deep-sea environment or protect marine life from the impact of deep seabed mining[18]. The mere presence of laws governing the activities in the deep seabed has not ensured that the sea ecology today is safe as the mining companies are indulging in illegal practices exploiting the loopholes in the regulations[19].

            The Legal and Technical Commission (LTC), an organ of the International Seabed Authority, is assigned with numerous functions related to activities in the deep seabed including the review of applications for any proposed work, to superviseany activities in the deep seabed, assessing the environmental impact of such activities and provide necessary advice to the International Seabed Authority’s council and assembly on matters relating to exploration and exploitation of mineral resources such as, polymetallic sulphides, cobalt crusts and polymetallic nodules[20]. So far the LTC has never rejected an application for exploration license even to explore high bio sensitive areas like the Lost City near the Mid Atlantic ridge which has been recognized to have high ecological significance under the UN Convention on Biological Diversity (CBD) and satisfies the criteria to become UNESCO world heritage sites[21]. In the twenty-third annual session held at International Seabed Authority suggestions were made by the delegates to consider the work of other multilateral environmental agreements including the Convention on the Biological Diversity and to include them in the checklist of bodies and conventions and to make it an obligation on part of the contractors to consult them during the application approval process[22]. Several discussions also took place glorifying the need to take into account the vulnerability of the marine ecosystems.

            However, the ISA currently interprets ‘benefits’ primarily in economic terms. It fails to concentrate on how the resources recovered be shared equitably. The environmental and social impacts of the activities carried out in the deep seabed are also not properly addressed or recognized under the UNCLOS. Currently, 157 states have ratified the UNCLOS convention and therefore come under the ISA jurisdiction with respect to any activity carried out in the ‘Area’[23]. The remaining states are under the respective state’s control and do not fall under the ISA jurisdiction[24]. The management of the seabed mining is thus fragmented making it difficult to regulate it effectively[25]. For example, the USA did not ratify the UNCLOS instead they enacted Deep Sea Hard Mineral Resources Act (DSHMRA) which sets forth a mechanism for American companies to obtain licenses to engage in deep seabed mining without having any sovereign claim over that area. Though arguments were raised opposing these unilateral activities and to establish the UNCLOS Convention as the only legal framework for seabed mining beyond national jurisdiction, the lack of adequate legal setup on an international scale has made it impossible to do so.

PRECAUTIONARY APPROACH:

            The Sea disputes chamber of the International Tribunal of the Law of the Sea in its advisory opinion on ‘Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the area’[26] identified precautionary approach as an element of the general obligation of due diligence by sponsoring states. In consonance with that, the regulations imposed by the ISA with respect to exploration of the seabed puts forth an obligation on both the sponsoring states and mining operators to apply the precautionary approach. However, the ISA’s Environmental impact assessment (EIA) process has been condemned for preferring the development of deep-sea mining over its protection. The shortcomings in the implementation of the EIA process to the deep seabed mining includes the following

Absence of conservation objective:

The absence of a conservation objective in the current regulatory framework has made it difficult to assess whether a protective measure is effective in and proportionate to the precautionary management aims[27]. The Legal and Technical Commission of the ISA can recommend the approval of an application if it is convinced that the said application provides for effective protection and preservation of the marine environment[28]. The absence of a conservation objective has made it difficult to interpret what effective protection means as defined under Article 145 of UNCLOS.

Lack of an environmental management strategy:

                The environmental standards set by the ISA are continuously adjusted in accordance with the need of the hour. Though there are some advantages attached to the incremental approach it lacks the conservation objective and a strategic plan to ensure the precautionary decision making and management will be followed. The regulatory framework does not have a provision for Strategic Environmental Assessment (SEAs)which can be a useful procedural tool to ascertain environmental assessments in accordance with the regional and global level and integrate cumulative effects[29].

Lack of transparency:

                The Global community including the indigenous communities and small island nations must be informed about the costs and benefits of the activities carried out in the deep sea. For example, the communities that rely upon the fish stocks for their livelihood could be severely affected by seabed mining[30]. As no commercial mining has started yet a mechanistic description of the extent of the impact of the deep seabed mining on such global communities is difficult to provide. It is indispensable that these communities understand the impact of the proposed activities in their livelihood and form an informed representation to express their views[31]. However, the Legal and Technical Commission of the ISA still conducts its meetings in closed session though the latter has been advised to hold more open sessions[32].

Lack of Safeguards to ensure and establish environmental protection:

                The ISA mandates that the mining companies must provide baseline data prior to the test mining to monitor the changes in the natural conditions as a result of the test mining and also the commercial mining activities. Though there is a substantive requirement put forth in the exploration regulations the ISA failed to stipulate any consequences in case of non-adherence to the said obligation. The ISA has not given importance to the alternative methods to seabed mining including the substitution of metals in short supply with those in abundant supply having similar properties, implementation of a circular economy by encouraging reuse and recycling rates, discouraging overconsumption[33].The cooperation of the mining contractors is also indispensable for the protection and preservation of the marine environment. Of all the 29 contractors who had been given exploration license only two state parties which include Germany and the Czech Republic have adopted relevant domestic laws and regulations[34]. Though the relevant national legislation is not a condition precedent it is a necessary requirement for compliance with the obligation of due diligence of the sponsoring states. This is essential forthe conservation of the marine environment.

CONCLUSION:

            The notions of due diligence and conduct are connected and impose an obligation on the sovereign states especially the sponsoring states for the deep seabed mining to adopt regulatory or administrative measures and to enforce them as an obligation of conduct to prevent the possible damage from the contractor’s activities’[35]. In addition to this, The Sea Disputes Chamber of the International Tribunal for law of the sea in its advisory opinion on ‘Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to activities in the Area’ also reiterated the ‘principle of equality’ whereby all the sponsoring states including the developing states must be subjected to the primary and direct obligations related to preservation of the marine environment[36]. It is the sheer responsibility of the ISA to effectively implement these principles and make the defaulting countries face the music.

When the ‘Areas beyond National jurisdiction’[37] was acknowledged as the common heritage of humankind, there were expectations that this will lead to far-reaching implications particularly at a juncture where the sustainable development of the marine environment is considered to be indispensable. While some initiative steps are being taken by some countries in upholding that if deep seabed mining should proceed then it must be in a more sustainable manner, the sameis not sufficient enough to protect the marine ecosystem given the rate at which the marine ecosystem is getting devastated. Therefore, before getting into the debate of whether the application of the doctrine of common heritage of mankind is for the benefit of mankind or its commercialization, it should be duly noted that the preservation of the marine environment comes before everything.Resorting to a new source of raw material by venturing into deep seabed mining will only prolong the unavoidable journey towards sustainable development and might subject an unexplored world to major havoc. Given the fact that disadvantages of deep seabed mining overlook the advantages altogether, it is better to give up such practice before it becomes too late for rectifying our mistake.

*Student of School of Excellence in Law.

This essay has been selected for publication through the 1st NLUO-Ganesh & Co. National Maritime Law Essay Writing Competition, 2019.

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