Although not yet an operational industry, seabed mining is a trending topic in the Pacific. This is because the exploration of the seabed beneath the Pacific ocean is revealing or has revealed potential mine sites for valuable minerals that are in global demand particularly for new technologies.

Proponents of seabed mining suggest, amongst other things, that mining of seabed minerals will ease demand for, and have less negative social impact than, terrestrial mining, will assist in the development of new greener technologies, and will provide economic benefits to those who participate in the mining ventures. Those who oppose seabed mining question, amongst other things, the potential environmental effects of or from the activity of seabed mining, the resultant damage to other uses or users of the ocean, whether developing nations will benefit from the mining ventures, and whether it will, in fact, ease pressure on terrestrial mining.

This legal bulletin considers the international legal framework of seabed mining and how it is regulated or intended to be regulated. This legal framework is important for Pacific Island Countries (PICs) because the 1982 United Nations Law of the Sea Convention (LOSC) has granted to PICs sovereignty or exclusive sovereign rights to extract (explore and exploit) resources from the seabed within vast ocean areas. The legal framework may assist PICs as they decide how to balance potential adverse environmental impacts of seabed mining against the value of their exclusive rights to, and benefits from, other living resources within the oceans.

Photo of deep sea bed mining equipment proposed for use on the seafloor taken from a presentation by Akuila Tawake, SPC entitled: "Deep Sea Minerals Development in the Pacific"

The seabed - what are we talking about?

In our view there can be some confusion about what is meant by seabed mining and its scope. This is because seabed mining may take place in areas that are within coastal State’s jurisdiction (on or within the coastal State’s continental shelf) or beyond areas of national jurisdiction – defined by LOSC as “the Area”. ‘Deep seabed’ doesn’t really have a technical definition but ‘deep sea’ generally seems to be used to refer to any area beyond the photic zone – so ~400m deep. This means there may be deep seabed within areas subject to national jurisdiction, as well as the Area

Further, there are 3 different types of seabed mineral resources of potential commercial interest in the Pacific Ocean region (polymetallic nodules, seafloor massive sulphides, and cobalt rich crusts). These 3 resources are found in different settings and locations, with different geology, within different ecosystems and with different biology, and each resource will require a different method of extraction. So discussing seabed mining generally, often glosses over significant differences in – for example – the scale of project, the expected financial benefits, and the type of environmental impacts that may be expected.

At present, it appears that scientists are unable to explain all the potential impacts of deep seabed mining, however, the potential impacts that are currently known to be likely include: (i) the direct impact to the ocean substrate and associated animals / habitats caused by scooping or cutting up rocks from the seafloor, or (ii) plumes of sediment that get disturbed by that process and which may travel through the water column (vertically, and/or horizontally). 

This map shows the extent and position of the resources that have been surveyed in the region and this also shows where these resources may be within the PICs’ continental shelf areas. This is taken from the SPC / UNEP Grid Arendal DSM publication which can be found: Citation: SPC (2013). Deep Sea Minerals

 The key differences between the Continental Shelf and The Area

Both the continental shelf and the Area are defined in accordance with the LOSC. The main differences between the continental shelf and the Area in relation to seabed are briefly summarised in this table that we have based on LOSC:

Legal framework for seabed mining on or within a coastal State’s continental shelf

PICs have the exclusive sovereign rights to the resources of large areas of ocean and seabed as a result of the LOSC, and its creation of the regimes of the continental shelf and the Exclusive Economic Zone (EEZ). These regimes overlap because the rights they bestow may also overlap. The main difference in terms of the sovereign rights to the marine living resources of the EEZ is that the LOSC creates an additional regime around conservation and management as well as exploitation, whereas in relation to non-living resources the regime focuses on exploration and exploitation.

Indeed a driving force behind the creation of new ocean zones in the LOSC was because coastal States wanted to gain control over large areas of continental margins or shelf to claim any hydrocarbon (oil and gas) deposits located beneath the seabed for the exclusive benefit of the coastal State. This additional control was criticised by some (notably advocates for the freedom of the seas) as “coastal State creep” but it has resulted in not only coastal State control over potential hydrocarbon resources but also the other resources that are now targeted by deep sea bed mining.

Because coastal States have the exclusive rights to explore and exploit the resources of the continental shelf national (coastal State law) applies and regulates the mining activities. In accordance with national law (where such legislation has been enacted) the coastal State may either refuse or permit applications from mining companies and make any permission to undertake mining subject to conditions in accordance with its national laws.

The regulation of mining in areas of national jurisdiction is therefore only as effective as the national legal framework and that national legal framework should accord with the international legal framework set out in LOSC and accord with other principles of international environmental law.

Surprisingly, and despite calls for an internationally binding instrument to regulate or prevent accidental adverse environmental impacts from mining or drilling for hydrocarbons beneath the continental shelf the only regulatory controls relating to protection of the marine environment from seabed mining are found in the LOSC. Of course, other international agreements may have some relevance but these do not contain specific regulatory controls.

Implications for PICs and the good regulation of seabed mining on or below the continental shelf

All States have an obligation pursuant to LOSC “to protect and preserve the marine environment”. LOSC also obliges coastal States to enact and enforce laws and regulations to prevent, reduce, monitor, and control pollution arising from or in connection with seabed activities subject to their jurisdiction, and to protect and preserve rare or fragile ecosystems. The latter obligations I particularly relevant for PICs with hydrothermal vent sites which included Fiji, Tonga, PNG, Solomon Islands and Vanuatu.

While this obligation only really amounts to encouraging coastal States to come up with appropriate national and regional legislation to regulate seabed activities, principles of international environmental law have introduced the concept that States should exercise due diligence in their uses of the ocean to ensure that they do not adversely affect the interests of neighbouring States and the international community. LOSC (Art 208) also provides that national laws should also set standards at least equivalent to those set by international organisations. The result is that States acting in accordance with their obligation to exercise due diligence, should:

• Ensure that their national legislation requires Environmental Impact Assessments (EIAs) and apply this before any seabed activity is approved
• Decision-makers should create good decision making processes that, amongst other things, take into account:
• The best available science
• Best environmental practices 
• The precautionary principle
• Monitor the effects of any developments.

PICs have been proactive in enacting seabed mineral legislation to regulate exploration and exploitation activities within national jurisdiction, including:

• Cook Islands Seabed Minerals Act 2009
• Tonga Seabed Minerals Act 2014
• Tuvalu Seabed Minerals Act 2014
• Cook Islands Seabed Minerals Exploration and Prospecting Regulations 2015
• Kiribati Seabed Minerals Act 2017
• Federated States of Micronesia Seabed Resources Act 2018.

The latter five laws (and two others for Nauru and Fiji, which pertain to the Area only – not to the EEZ) were supported by a regional technical assistance project (the European Union – Secretariat of the Pacific Community Deep Sea Minerals Project 2011-2016) which provided tailored technical assistance to Pacific Island nations in the development of seabed mineral laws, and promoted the potential benefits of regional harmonisation within those laws. For this reason, there is a significant degree of similarity between those seven Pacific Island laws, and they expressly incorporate environmental obligations of LOSC, and principles such as the prior EIA, the precautionary approach, best environmental practice, and free prior and informed consent.

Further steps are underway in the PICS region now to draft a regional Pacific seabed minerals treaty, to cover these issues further.

Legal framework for seabed mining outside areas of national jurisdiction - the Area

Who owned the seabed and the rights to explore and exploit the resources beyond national jurisdiction was a crucial issue that LOSC had to resolve before it was concluded in 1982. LOSC contains very few definitions in general, however, ‘the Area’ is one of the few terms that are defined and it means “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”

The ISA is an inter-governmental body created by the LOSC to control seabed mineral activities in the Area. A large part of LOSC is devoted to setting out how the ISA will function and conduct itself as an administrative body. The ISA’s purpose is to organise and control seabed mineral activities in the Area to, inter alia:

• Ensure the orderly, safe and rational management of the resources of the Area, for the over-all development of all countries
• Promote and encourage marine scientific research
• Ensure effective protection for the marine environment from harmful effects
• Ensure effective protection of human life
• Promote the effective participation of developing States in activities in the Area
• Share knowledge with developing countries
• Develop international law of the Area
• Provide for the equitable sharing of financial and other economic benefits derived from activities in the Area
• Receive and distribute revenue from exploitation of continental shelves within national jurisdiction (but beyond 200 miles).

The ISA is also tasked to adopt appropriate rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from seabed mineral activities in the Area.

The ISA is supposed to act on the behalf of humankind as a whole and this is reflected by the LOSC declaring that all resources of the Area are the common heritage of humankind (LOSC uses the word "mankind").

ISA regulates exploration and will regulate future mining activities of the Area by setting certain internationally binding regulations and then awarding contracts to applicants on a case by case basis. An applicant must either be a State signatory to LOSC, or be sponsored by such a State. Between 2001 and 2018, the ISA has issued twenty-nine contracts for exploration in the Area. These comprise:

• 17 for nodules (Pacific Clarion Clipperton Zone, Indian Ocean Basin)
• 7 for seafloor massive sulphides (Indian Ocean, Mid-Atlantic Ridge)
• 5 for cobalt-rich crusts (North-West Pacific Ocean).

The contract will include all the details relating to what and where activities may be undertaken and set out the rules that must be followed, including a requirement to adhere to the rules, regulations and procedures issued by the ISA. Prior to awarding any contract the applicant must fulfil various requirements that are set out by ISA and there are various pre-qualification stipulations and processes that must be followed that will be monitored by ISA.

At the present time ISA has made regulations in relation to: prospecting and exploration for polymetallic nodules, polymetallic sulphides, and cobalt-rich ferromanganese crusts.

A regional environmental plan has been prepared by the ISA for the Clarion Clipperton Fracture Zone. This set some ‘Areas of Particular Environmental Interest’, which are akin to marine protected areas (or no-go sites for mining). The ISA is working now to develop REMPs for the remaining ocean regions.

ISA has also made recommendations in relation to contractors that cover the assessment of the possible environmental impacts arising from exploration for minerals in the Area and the way they should report actual and direct exploration expenditure.

In line with these Recommendations, two EIA reports have recently been submitted by contractors and published by the ISA, which relate to a proposed in-situ trial of a new nodule collecting machine, in the Germany and Belgium sponsored areas of the Clarion Clipperton Zone in the Pacific ocean. These reports highlight that the ISA does not currently have in place detailed standards or rules for the conduct of EIAs, or the process by which the reports are prepared, submitted and considered.

The ISA is currently working on Regulations for Exploitation. These will have to be agreed by consensus by the ISA’s inter-governmental membership. The process has aimed to be participatory and it began with a stakeholder consultation in 2014, and currently a fourth draft of regulations is under consultation. Environmental management standards are one area of discussion. Also likely to prove controversial is the system of payments (or royalties) to which contractors will be subject, and how this revenue will then be shared equitably, for the benefit of humankind generally.

One of the qualifications for any contractor is that it has to be sponsored by a State party to the LOSC, This brings an additional layer of regulatory control, as the State is responsible to ensure the contractor adheres to LOSC and the ISA rules, and can impose additional standards and requirements via its national law.

For this reason each nation State is required to enact sufficient and applicable national legislation to ensure that the contractor will comply with the conditions of its ISA contract. This legislation should include detailed provisions for financial and technical compliance as well as sanctions for non-compliance. The idea being that the sponsoring State is liable for any damage incurred by any sponsored mining activity unless and until the State acquits its duty as a sponsoring State including via the enactment and effective implementation of such legislation.

The International Tribunal for the Law of the Sea (ITLOS) is an institution created by LOSC that is an independent judicial body that has the purpose “to adjudicate disputes arising out of the interpretation and application” of LOSC. 

ITLOS has published an advisory opinion (case number 17 - Responsibilities and obligations of States with respect to activities in the Area) considered the responsibility for the sponsoring State and has provided that the sponsoring State must exercise high standards of due diligence to secure compliance with the terms of the contract awarded by ISA. ITLOS also mentions the precautionary approach and the obligation to undertake environmental impact assessments which it describes as a “general obligation under customary law”.

Implications for PICs and the good regulation of seabed mining in the Area

Various PICs have expressed an interest in being sponsoring parties for mining ventures in the Pacific region and currently four PICS are sponsoring exploration contracts in the Area: Nauru, Tonga, Kiribati and the Cook Islands.

For the system to work in a way envisaged by LOSC and ISA it is essential that the national legislation adopted by PICs is capable of effectively regulating deep seabed mining and that PICs have the resources to enforce the legislation.

It is also reasonable to expect that the ISA will consider and apply the customary law principles set out by ITLOS (due diligence, requirement for EIAs and the precautionary approach) before awarding contracts to exploit the Area.

However, ISA may not, or will not take into account the national legislation and capabilities of sponsoring States to enforce the technical and financial rules that are envisaged as the ISA will consider that as a sovereign issue.

At the present time, out of 20 sponsoring States, only 8 have detailed laws in place, and 3 PICs being Tonga, Tuvalu and Nauru have adopted modern and detailed sponsorship laws with the Cook Islands currently working on its sponsorship laws.

Concluding Remarks

PICs have complete control over any mining activities in or under the seabed of their large continental shelf areas. This includes the right to say no to any mining activities if PICs decide that other factors including the other uses, rights and benefits from their ocean areas outweigh the potential risks or environmental impacts associated with seabed mining.

Outside the areas of the national jurisdiction, the ISA is charged with administering the resources of the Area for the benefit of humankind but will rely on sponsoring States like the PICs to monitor and enforce the mining activities that will be undertaken by mining companies. This may be an onerous burden for some of the PICs now and in the future. It is important to note that under this system if PICs fail to regulate mining efforts effectively there is a risk that the full costs and implications of this failure may not be borne by the mining company.

Regardless of where the mining activity is intended to take place in the Pacific, there is a requirement for good decision making processes that take into account all views, scientific evidence and customary legal principles like transparency and accountability, EIAs and the precautionary approach. Good decision making processes may benefit from the input of lawyers and others versed in the principles of administrative/public law.

 
With thanks to Hannah Lily:

This article was provided to and greatly benefited from an expert review by Hannah Lily. Hanna is the Natural Resources Legal Advisor at the Commonwealth Secretariat. In her role, Hannah provides support and advice to members of the Commonwealth including technical assistance to member countries upon request in relation to oceans governance and the development of national legal frameworks for seabed minerals.

Further information

More information on the biology and geology found at deep seabed mineral sites click: here

For more information about ITLOS including its published rulings and advisory opinions click: here.

This legal bulletin is not, and should not be relied upon as, legal advice - it is provided for general information purposes only