Shubhang Chaturvedi & Sanjana Gopal*
The projection of deep-seabed mining (DSM) and Outer Space Mining (OSM) as answers to the global mineral crunch is tenuous and questionable. While the mandate of this article is to expound the risks associated with DSM, it looks at the OSM regime to conclude that commercial exploitation is environmentally detrimental and incongruous with international law.
The deep-sea (DS) refers to the seabed and water column below 200m depths and remains largely unexplored. It remains, besides Antarctica, the only location, where commercial extraction of mineral resources does not take place.
Interest in deep-seabed mining (DSM) has renewed on the back of, a) increasing concerns about the depleting terrestrial reserves of selected minerals, b) controversial control over such resources, c) demand for minerals needed for transport electrification and renewable energy generation, and d) the development of an international governance structure under the UNCLOS and its 1994 agreement.
A complex set of rules and institutions govern ocean activities such as DSM. Like outer space mining (OSM),it is a relatively unconventional method of extracting Rare Earth elements (REEs). Similar to outer space, the seabed was reserved exclusively for peaceful purposes.The UNCLOS refers to the ‘Area’ which is situated beyond national jurisdiction, as the “common heritage of mankind”,implying that the DS is open to use for all but owned by none.
Comprising 167 Member States, and the EU, the International Seabed Authority (ISA) plays the crucial role of safeguarding the DS,ensuring the effective protection of the marine environment from harmful effects that may arise from DSM etc. while also developing mechanisms to guarantee equitable sharing of economic benefits derived from the Area.
The licensing regime includes a parallel system wherein States and State-sponsored entities are permitted to conduct DSM activities in tandem with the ISA’s mining arm, the Enterprise. Currently, only licenses for exploration are being issued, work on a mining code – to regulate the issuance also of exploitation licenses – is still ongoing.
Ecological Impact of DSM
For the purposes of DSM, the habitats of particular interest are polymetallic nodule zones (PNZ), Seafloor Massive Sulphides (SMS) at hydrothermal vents, and Cobalt Rich Crusts (CRC) at seamounts. Of these, CRCs are the least explored and their biodiversity, similar to the biodiversity in PNZs and inactive hydrothermal vents, the least characterised. The constraints of exploring the DS coupled with its enormity has ensured that our knowledge of it is limited and has major gaps. As a result, out of the multiple risks DSM poses, the most significant are environmental unknowns since any mitigation strategy to be effective,it needs to be designed around comprehensive baseline knowledge.
The direct environmental impacts of DSM are multifacetedincluding loss of biodiversity, geochemical/physical changes of the seafloor, sediment plumes, contaminant release and increased sound, vibration and light.
Global Space Race vis-a-vis Deep Seabed Race
Based on the premise of ‘res communis’, the Outer Space Treaty (OST), illustrates outer space as “the province of all mankind”.Article II of the OST, albeit with no reference to ‘mining’,states that outer space including the Moon and other celestial bodies are “not subject to national appropriation by claim of sovereignty” through use, occupation or any other means. But this hasn’t restricted states such as the US or Luxembourg from authorising commercial space mining by private entities through legislations merely because ‘national appropriation’ is prohibited, and to which the Russian industry plans to follow suit.
Similarly, regarding DSM, the Pacific Island state of Nauru has been assisted by the EU in the drafting of a legislation aimed at ‘establishing a legal framework for the sponsorship, and for the effective control, by Nauru of contractors to undertake Seabed Mineral Activities’.Private actors such as Nautilus Minerals Inc. of Canada, through two of their subsidiaries NORI and TOML had submitted applications to the ISA for mining rights.
Engaging in activities of a commercial nature leads to the perversion of the redistributive ambition set out under the OST as well as the UNCLOS regime. Therefore, ignorance of appeals to benefits for humanity makes States within the framework of International Law facilitators of private value extraction.
The possible ecological impacts of DSM continue to remain uncertain and it would be imprudent on ISA’s part to begin issuing exploitation licenses to States. The ISA has adopted a precautionary approach till now and should continue to do the same. The transition from exploration to exploitation should be slowed to accommodate research aimed at filling the gaps in knowledge required for better environmental management.An improved understanding of would also allow for the conceptualisation of enhanced technology aimed at minimising the harm to the marine environment. Meanwhile, States should not exploit resources of shared or common ownership by adroitly circumventing treaty provisions or customary international law.
Further, the formulation of a consolidated Mining Code must be prioritised owing to the increase in the number of States eager to procure exploitation licenses. EIAs should be mandated for exploitation activities and all stakeholders must remain committed to maintaining the purity of the deep-sea and the equitable sharing of its resources.
About the Author
*Shubhang Chaturvedi & Sanjana Gopal are tenth semester students at RMLNLU, Lucknow. Sanjana has varied interests ranging from International Maritime Law to International Humanitarian Law. Shubhang is a visiting faculty of Legal Studies at Seth MR Jaipuria School and has interests in international Criminal law, jurisprudence and legal thought
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