Deep-Sea Mining Without Rules

July 10, 2023 is shaping up to be D-Day for the world’s oceans. That is the day after a two-year deadline placed on the International Seabed Authority (ISA) to finalize mining regulations in seabed areas beyond national jurisdiction is set to expire. The possibility of mining the seabed being green-lighted in the absence of regulations has caused a lot of uneasiness among member states, environmental groups and the public. And there is now a growing chorus for a moratorium on deep-sea mining.

If the ISA misses the deadline, which is almost certain since its council will only meet from July 10, member states would have to “consider and provisionally approve” any application for mining received despite the absence of regulations intended to govern such activities. This is especially worrying given that there is a long way to go in the negotiations and the risks could outweigh any benefits. It is not certain who the ISA will react – whether to approve mining without proper regulations or not.

The International Seabed Authority is an autonomous international organization established under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Comprising 168 member states and the European Union (EU), it is responsible for the administration of the mineral resources of the seabed area beyond the limits of national jurisdiction which have been legally designated as the common heritage of humankind. All member states are represented at the assembly, the supreme organ of the ISA. Thirty-six are elected to the executive council for four-year cycles.

While the UNCLOS provides the regulatory backdrop for mining on the international seabed, an implementing agreement concluded in 1994 modified certain aspects of the initial framework. One pivotal change was the inclusion of a provision called the “two-year rule”, which is tucked away in an annex to the agreement. Although the assembly bears the responsibility for approving mining regulations, it is the executive council that has the power to negotiate, adopt and apply them, requiring consensus among the 36 member states. Just one formal objection would impede the adoption of any regulation.

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The “two-year rule” provision was inserted to ensure that a deadlock could be circumvented and mining cannot be blocked by one or a few formal objections. But the provision was not envisaged to allow mining activities to commence if just one or a small number of states or private entities wished to proceed. And it was certainly not inserted to accelerate the negotiations and hasty adoption of regulations, as is being done now. The Authority has been forced to speed up finalizing a mining code after the tiny Pacific nation of Nauru triggered a two-year rule to allow applications for seabed mining from July 2023.

At the last meeting of the council in March 2023, member states reached an understanding and adopted a decision that commercial exploitation should not commence in the absence of regulations. The council also concluded that member states should retain the power to reject any application submitted in the absence of regulations. The council also emphasized the legal obligation of the ISA to safeguard the marine environment and ensure effective protection from the harmful effects of any mining activities. That meant protection of the marine environment must take priority over any individual mining interests. Without any agreed rules, clear environmental thresholds and binding standards, it seems impossible for the ISA to approve any mining application and supervise operations with confidence.

There is little weight to arguments made by advocates that deep-seabed mining could be the solution to climate change by providing critical metals needed for the clean energy transition. Extracting these minerals would be energy intensive and the problems experienced in terrestrial mining – including habitat destruction and pollution – would be replicated at sea. Deep-seabed mining may also be perceived as an assault on indigenous groups that share a profound cultural connection and bond to the deep ocean. No monetary compensation for such losses would suffice, and in any case, it would be impossible to put a price tag on what is priceless. Besides, the ISA is yet to have a debate on how to distribute the revenues from mining operators.

The Authority now faces a difficult decision. Allowing mining in the absence of regulations would undermine the letter as well as the spirit behind the 1982 Convention and the 1994 agreement. Since the 1982 Convention has been regarded as “the constitution for the ocean”, allowing mining activities to commence now may be deemed as “unconstitutional”. It will also almost certainly expose the ISA to litigation – it cannot yet guarantee the environmental and societal implications, or that it is fit for purpose as a regulator to exercise control over mining operators.

On July 10, of course, the ISA could simply postpone mining activities and not allow unregulated mining to occur. There is a time for everything, and at this moment of reckoning, states should unite to send a clear message calling for more circumspection, adherence to good governance and informed decision-making. But when the ISA inevitably begins accepting applications for deep-sea mining operations, there will remain a lingering question: How much control will authorities have over operations to ensure environmental protection of marine habitats far from coastlines, or will it turn into a wild high seas free-for-all?

While the ISA is negotiating the mining code to establish the rules under which companies will be allowed to extract minerals from the seabed, the clock will be ticking. Although commercial mining has not yet started, companies such as De Beers, China Minmetals Corporation, UK Seabed Resources Ltd and others from Tonga, Nauru, Germany, Japan and Singapore are lining up to make it a reality.

As a result, there are fears environmental protection for international waters will be drowned in the rush by these companies hoping to exploit one of the planet’s final frontiers for mining. Deep-seabed mining for metals such as cobalt, manganese and nickel could potentially support mass production of essential electronics such as smartphones and tablets as well as stimulate the development of green technology like electric vehicles and wind turbines.

Realizing the imminent impact of deep-sea mining and how it could affect the marine environment, the 193 member states of United Nations in June this year reached what could well be a turning point in the protection of the world’s oceans – the adoption of the High Seas Treaty, officially known as the Treaty on Biodiversity Beyond National Jurisdiction. Without such a treaty, the high seas and deep seabeds beyond national jurisdictions had for decades been governed and managed in a fragmented way. The Treaty, which took two decades to finalize and will not be signed off until later in 2023, seeks to change this by establishing a new framework to address marine resource conservation with new management tools and institutional mechanisms for decision-making and equitable benefit sharing.

But the treaty does not have any power over mining activities overseen by the ISA because it does not apply directly to activities already regulated by existing bodies. In other words, the High Seas Treaty would not impede or hamper deep-sea mining exploration and any mining activities. It only provides the international community with an institutionalized and coordinated protective measure without any clear provisions to obstruct mining. The ISA can issue licenses to companies intending to explore the deep sea without much hindrance.

Not only that, there are no guarantees that the High Seas Treaty could even offer environmental protection despite clauses in it allowing for the creation of marine protected areas beyond national jurisdictions. It also remains uncertain how nations might work together for the establishment of marine protected areas beyond national jurisdictions. Proposals would first have to be submitted by participating countries to the International Maritime Organization (IMO) supported by a draft management plan detailing whether or not activities such as fishing, shipping and deep-sea mining would be restricted within the suggested designated area.

Such proposals may likely face opposition resulting in years of delay before designations of marine protected areas in the international high seas or seabeds could be made. In the meantime, regulations allow countries to apply to the ISA for 15-year exclusive rights to explore a specific area for deep-sea mining. To receive such contracts, they must submit work plans demonstrating the contractors they are sending out for explorations possess the financial and technical capabilities to fulfil their obligations.

It is an expensive endeavor, costing up to US$1.4 billion over five years. A 2017 United Nations Educational, Scientific and Cultural Organization (UNESCO) report stated that ocean research vessels may cost between US$10,000 to US$40,000 a day to operate. The projected total cost to process the minerals is estimated to be approximately US$135 million. Contractors are expected to follow best environmental practices and work closely with the ISA to come up with programs for monitoring and evaluating the biodiversity impacts of their exploration and mining activities.

As seabed explorations are ongoing but mining is yet to start, contractors, scientists, legal experts and the ISA must continuously work together to monitor the environmental impact. With more scientific data, it would then be possible for member countries under the High Seas Treaty to unearth the most sustainable way of balancing mining activities with the protection of the marine environment. If the global community is to be successful in fighting climate change, the solutions we consider and invest in would need to be responsible, prudent and measured. At least certainly for now, deep-seabed mining does not appear to fit the bill.

Further reading:

Borton, James. (March 9 2023) “Vietnam’s Reef People Harvest the Waves: Hollywood Mirrors a Way of Life”, AsiaGlobal Online, Asia Global Institute, The University of Hong Kong.

Bradshaw, Corey. (December 21, 2022) “The New Global Biodiversity Framework and the Sixth Mass Extinction: What is at Stake”, AsiaGlobal Online, Asia Global Institute, The University of Hong Kong.

Marks, Nigel; Wang, Ming; and Richmond, Robert. (April 13, 2023) “As Japan Prepares to Release Fukushima Wastewater into the Ocean, Safety Questions Persist”, AsiaGlobal Online, Asia Global Institute, The University of Hong Kong.