Shubhang Chaturvedi & Sanjana Gopal*
Introduction
The projection of deep-seabed mining (DSM) and Outer Space Mining (OSM) as answers to the global mineral crunch is tenuous and questionable.[1] 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.[2] It remains, besides Antarctica, the only location, where commercial extraction of mineral resources does not take place.[3]
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,[4] c) demand for minerals needed for transport electrification and renewable energy generation,[5] and d) the development of an international governance structure under the UNCLOS and its 1994 agreement.[6]
Regulatory Framework
A complex set of rules and institutions govern ocean activities such as DSM.[7] Like outer space mining (OSM),it is a relatively unconventional method of extracting Rare Earth elements (REEs).[8] Similar to outer space,[9] the seabed was reserved exclusively for peaceful purposes.[10]The UNCLOS refers to the ‘Area’[11] which is situated beyond national jurisdiction, as the “common heritage of mankind”,[12]implying that the DS is open to use for all but owned by none.[13]
The ISA
Comprising 167 Member States, and the EU, the International Seabed Authority (ISA) plays the crucial role of safeguarding the DS,[14]ensuring the effective protection of the marine environment from harmful effects that may arise from DSM etc.[15] while also developing mechanisms to guarantee equitable sharing of economic benefits derived from the Area.[16]
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.[17] Currently, only licenses for exploration are being issued, work on a mining code – to regulate the issuance also of exploitation licenses – is still ongoing.[18]
Ecological Impact of DSM
For the purposes of DSM,[19] the habitats of particular interest are polymetallic nodule zones (PNZ),[20] Seafloor Massive Sulphides (SMS) at hydrothermal vents,[21] and Cobalt Rich Crusts (CRC) at seamounts.[22] Of these, CRCs are the least explored and their biodiversity, similar to the biodiversity in PNZs[23] and inactive hydrothermal vents,[24] the least characterised.[25] The constraints of exploring the DS coupled with its enormity has ensured that our knowledge of it is limited and has major gaps.[26] As a result, out of the multiple risks DSM poses, the most significant are environmental unknowns[27] since any mitigation strategy to be effective,[28]it needs to be designed around comprehensive baseline knowledge.[29]
The direct environmental impacts of DSM are multifaceted[30]including loss of biodiversity,[31] geochemical/physical changes of the seafloor,[32] sediment plumes, contaminant release[33] and increased sound, vibration and light.[34]
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”.[35]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.[36] But this hasn’t restricted states such as the US[37] or Luxembourg[38] 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.[39]
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’.[40]Private actors such as Nautilus Minerals Inc. of Canada, through two of their subsidiaries NORI[41] and TOML[42] 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.[43]
Conclusion
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.[44]An improved understanding of would also allow for the conceptualisation of enhanced technology aimed at minimising the harm to the marine environment.[45] Meanwhile, States should not exploit resources of shared or common ownership by adroitly circumventing treaty provisions or customary international law.[46]
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
[1]I. Feichtner, Mining for Humanity in the Deep Sea and Outer Space: The Role of Small States and International Law in the Extraterritorial Expansion of Extraction, 32 Leiden J. Int. Law 2, 255 (2019).
[2]L. Cuyvers, et al., I.U.C.N., Deep Seabed Mining: A Rising Environmental Challenge, 1(2018).
[3]L.A. Levin, et al., Challenges to the Sustainability of Deep-Seabed Mining, Nature Sust. (July 6, 2020),https://doi.org/10.1038/s41893-020-0558-x.
[4]S. H. Ali, et al., Mineral Supply for Sustainable Development Requires Resource Governance, 543 Nature 367 (2017).
[5]E.T. Ayuk, et al., U.N.E.P., Mineral Resource Governance in the 21st Century: Gearing Extractive Industries towards Sustainable Development(2019).
[6]Levin, supra note 3.
[7]P. Singh,Institutional Framework for Marine Environmental Governance, in Handbook on marine environment protection: Science, Impacts and Sustainable Management (M. Salomon, et al.,eds.)563 (2018).
[8]Analysing the Promise of Deep Sea Mining, Mission 2016: The Future of Strategic Natural Resources (July 8, 2020). https://web.mit.edu/12.000/www/m2016/finalwebsite/solutions/oceans.html.
[9]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, U.N. Office for Outer Space Affairs (July 8, 2020), https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html.
[10]A/RES./2749 (XXV) (1970).
[11]U.N.C.L.O.S., 1833 U.N.T.S. 3, Part XI and Annex. III.
[12]U.N.C.L.O.S., art.136.
[13]Toxic Impacts of Deep Sea Mining, Managing Impacts of Deep Sea Resource Exploitation (July 7, 2020), https://www.eu-midas.net/legal_framework.
[14]U.N.C.L.O.S, art. 137(2); arts. 153, 157(1), 1994 Agreement, Annex., s.1(1).
[15]About ISA, International Seabed Authority (July 7, 2020),https://www.isa.org.jm/about-isa.
[16]U.N.C.L.O.S., arts. 140(2), 160(2)(f)(i), 160(2)(g) and 162(o)(i).
[17]U.N.C.L.O.S, art. 153(2).
[18]Feichtner, supra note 1, at 262.
[19]H.J. Niner, et al., Deep-Sea Mining with No Net Loss of Biodiversity—An Impossible Aim, 5 Front. Mar. Sci.53 (2018).
[20]S.V. Margolis & R.G. Burns, Pacific Deep-Sea Manganese Nodules: Their Distribution, Composition, and Origin, 4 Annu. Rev. Earth Planet. Sci. 229 (1976).
[21]P. Hoagland, et al., Deep-Sea Mining of Seafloor Massive Sulfides, 34 Mar. Pol. 728 (2010).
[22]G.P. Glasby, Lessons Learned from Deep-Sea Mining, 289 Science 5479, 551(2000).
[23]A. J. Gooday, et al., Giant Protists are Exceptionally Diverse in Parts of the Abyssal Eastern Pacific Licensed for Polymetallic Nodule Exploration, 207Biol. Conserv. 106 (2017).
[24]C. L. Van Dover, Inactive Sulfide Ecosystems in the Deep Sea: A Review, 6 Front. Mar. Sci.461 (2019).
[25]Levin, supra note 3.
[26]L. Mayer, et al.,The Nippon Foundation—GEBCO Seabed 2030 Project: The Quest to See the World’s Oceans Completely Mapped by 2030, 8 Geosciences 63 (2018).
[27]K. F. Thompson, et al., Seabed Mining and Approaches to Governance of the Deep Seabed, 5 Front. Mar. Sci. 480 (2018).
[28]Niner, supra note 19.
[29]Id.
[30]L. A. Levin et al., Defining “Serious Harm” to the Marine Environment in the Context of Deep-Seabed Mining, 74 Mar. Policy 245 (2016).
[31]A. Vanreusel, et al., Threatened by Mining, Polymetallic Nodules are Required to Preserve Abyssal Epifauna, 6 Sci. Rep. 26808 (2016).
[32]A. Boetius& M. Haeckel, Mind the Seafloor, 359 Science 34(2018).
[33]C. L Van Dover, Impacts of Anthropogenic Disturbances at Deep-Sea Hydrothermal Vent Ecosystems: A Review, 102 Mar. Environ. Res.59 (2014).
[34]S. Gollner, et al., Resilience of Benthic Deep-Sea Fauna to Mining Activities, 129 Mar. Environ. Res. 76 (2017).
[35]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereinafter, OST), art. 1.
[36]OST, art. 2.
[37]U.S. Commercial Space Law Competitiveness Act, Pub. L. No. 114-90 ss. 51303 129 Stat. 72 (2015).
[38]Law on the Exploration and Use of Space Resources, Journal Officiel Du Grand-Duché De Luxembourg [Official Gazette Of The Grand Duchy Of Luxembourg], No. 674 (July 28, 2017).
[39]Shura Collinson, Asteroid Mining: Russian Experts Call for Action in the New Space Race, (Oct. 20, 2017), https://old.sk.ru/news/b/articles/archive/2017/10/20/asteroid-mining-russian-experts-call-for-action-in-the-new-space-race.aspx.
[40]International Seabed Minerals Act 2015, ronlaw.gov.nr/nauru_lpms/index.php/act/view/1150.
[41]Nauru Ocean Resources Inc., Application for Approval of a Plan of Work for Exploration, ISBA/14/LTC/L. 2 (21 April 2008).
[42]Tonga Offshore Mining Ltd., Application for Approval of a Plan of Work for Exploration, ISBA/14/LTC/L.3 (21 April 2008).
[43]G. Arrighi, The Long Twentieth Century. Money, Power and the Origins of our Times(2010).
[44]Levin, supra note 3.
[45]Id.
[46]Feichtner, supra note 1.
Centre for Maritime Law 