Aug. 30, 2023

Common property in seabed minerals is at a critical juncture

Author: Petra Gümplová

This summer will likely mark a significant turning point for the deep seabed—the last frontier which, unlike any other area on Earth, is a common property of humankind managed collectively through the International Seabed Authority (ISA). Since the ISA failed to finish the rulebook for the extraction of the seabed minerals by this summer’s deadline, commercial extraction can go ahead in the absence of any regulations. If it actually happens, seabed mining will not live up to the original aspirations to use this common property for the benefit of all countries. It will also cause severe, irreversible, and unnecessary harm to global ocean ecosystems already massively impacted by overfishing, plastic and chemical pollution, and the climate and biodiversity crises.

The Deep Seabed

The deep seabed is a vast plain of the ocean covering about two-thirds of the ocean floor. Topographically, it consists of abyssal plains and hills, ridges, rifts, and trenches. Abyssal plains, in the average depth of 4,000 meters below the ocean surface, cover more than half of the Earth. They are the most remote and extreme environments on our planet. There is no sunlight. The water is very cold and, as we were reminded through this summer’s tragic Titan submersible expedition, weighs with enormous crushing pressure on the ocean floor. Most of the seabed remains remote and inaccessible and has been much less explored than the surface of the Moon or Mars. Untouched by humans, the seabed thus remains the most pristine and unique ecosystem on our planet, still thriving independently beyond human intervention.

What we know is that the seabed is covered by layers of marine sediments that make it a unique habitat for benthos—a community of organisms that live on the bottom of the sea in complete darkness and thrive without photosynthesis, relying on other mechanisms to produce oxygen and energy. Up to two thirds of the life in the deep ocean is presumed to be unknown to science. One of the things we do know, at least since John L. Mero’s 1965 book The Mineral Resources of the Sea, is that there are highly valuable natural resources on the ocean floor. They occur as mineral crusts on volcanic or other rocks, muds, and the so-called polymetallic nodules—potato shaped rocks scattered on abyssal plain sediment. They contain minerals (iron, manganese, nickel, copper, and cobalt) and rare earth elements now widely used in consumer electronics and green technologies such as wind turbines and hybrid and electric cars.

This mineral wealth is the main reason why the deep seabed is a zone clearly delineated and regulated by international law. The United Nations Convention on the Law of the Sea (UNCLOS) defines it as the Area comprising the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction, and declares the Area and its resources “the common heritage of mankind” (Article 1 & 135). National jurisdictions in the oceans ends at the outer limits of continental shelves—zones which states can claim according to the rules set by the same convention. They usually reach the outer edge of the continental margin (a submerged prolongation of land mass), or a distance of 200 nautical miles from the baseline (a low water line of a coastal state). While continental shelves give states exclusive sovereign rights to natural resources (minerals, fossil fuels and living resources of the seabed), the natural wealth of the deep seabed is the common property of all humankind, shared and governed collectively—the core of the common heritage principle.

Global Common Property and Distributive Justice

The common heritage of mankind principle (CHM) is arguably one of the most unique and innovative jurisdictional principles that emerged from the post-World Warr II reform of international law. It represents a progressive notion that some domains and their assets should benefit not a selected few, but rather humanity as a whole. The CHM principle therefore prohibits the assertion of sovereignty and enclosure by private property rights, and vests the ownership of resources in mankind as a whole. It prescribes a collective and peaceful international management and equitable sharing of the resources. Currently, CHM applies to two global commons—outer space and celestial bodies, and the deep seabed.

In the oceans, CHM forms an important part of the reconstitution of this global commons away from the old colonial paradigm of the free sea, which recognized the freedoms of navigation, trade and fishing, and which allowed maritime powers to use and exploit common resources freely and without limits. During the process of decolonization in the 1960s, newly independent and developing countries sought to reverse the legacy of colonialism and curb the unimpeded liberty of the few to appropriate resources from the commons. In the postwar economic context, this was primarily meant to prevent unregulated, large-scale exploitation of fish stocks and oil reserves by foreign companies. Developing countries thus supported a new system in which maritime areas are either zones of exclusive national control of coastal states or collectively managed commons with prescribed mechanisms of sharing of natural resources to benefit their economies (Schrijver 1997).

CHM is thus a product of this post-colonial and mainly redistributive imaginary intended to secure access and equal opportunity to use natural resources. Making seabed minerals common property managed collectively also stems from a technocratic vision of rapid economic development. Arvid Pardo, a Maltese diplomat who is credited with the popularization of the concept of the common heritage of mankind, talked in his famous 1967 speech to the General Assembly of the United Nations about the “sunken treasures” of the seabed, “far greater than the resources known to exist on dry land” (Paragraph 91). Pardo suggested that the underwater treasure could be conveniently extracted and that the wealth had the potential to satisfy human consumption for thousands of years to come. He also cautioned against national appropriation by technologically and scientifically advanced states and against possible abuse of the seabed to establish military dominance, calling for the creation of a special international regime for the seabed.

Pardo’s vision materialized in part. Through the UNCLOS adopted in 1982 and the 1994 Agreement on Implementation, the International Seabed Authority was established. According to an original plan promoted by the group of developing states (G-77), the extraction would be conducted by a kind of global public extractive company (called “the Enterprise”), established as an operational arm of the ISA and funded by rich countries (Mann Borgese 1977: 588-594). The idea was that the Enterprise would possess exclusive mining rights and allow developing states direct participation in the extractive activities. The demand for sharing of financial and other economic benefits derived from activities in the deep seabed was enshrined in Article 140 (2) of UNCLOS and in Article 13 of the Annex III, which together specify the financial terms of mining contracts and payment obligations and provide detailed provisions for the calculation of royalties and profit shares.

The Mining Code

The subsequent development of the seabed mining regime has been marked by a series of compromises which detract from this original, progressive vision. Concerning the role of enterprise, for example, a compromise was forged by Henry Kissinger and his 1976 proposal for a “parallel system” allowing both states and private companies to apply for mining licenses. (Companies need the sponsorship of a state party). The 1994 Agreement on Implementation modified previous redistributive mechanisms and abandoned the formula for the determination of royalties and profit shares. Instead, it established a number of general principles as the basis for the rules and procedures regulating the financial terms of contracts and mechanisms of revenue collection. These provisions, along with the rules for the environmental impact assessment, still await specification in the so-called mining code, which, as Isabel Feichtner has pointed out, turns out to be the most far-reaching and consequential international law-making project of the postwar era, mainly due to the scale of the seabed and the importance of what shape the common property regime will take (Feichtner 2019: 622).

So far, the ISA has granted 31 exploration licenses for polymetallic nodules to 22 contractors. Mining permits, however, have not yet been granted, due to the missing mining code. The ISA has been working on a mining code since 2014. Slow and complex negotiations are marred by controversies and conflicts, primarily between pro-extractive voices arguing for the need to secure resources for the green energy transition and those who caution against the existential threat to fragile marine ecosystems. Michael Lodge, the head of the ISA, has been criticized by member countries’ diplomats for his lack of neutrality and strong pro-extractive and business orientation. Last summer, an independent organization covering and recording the international negotiations—Earth Negotiations Bulletin (ENB)— did not its contract renewed. Some countries voiced concerns that the ISA and its legal and technical commission (LTC) is developing its mining standards and guidelines behind closed doors and disregarding the impact of the extraction on the marine environment.

In July 2021, the Pacific nation of Nauru declared its plan to start seabed mining. This declaration triggered an obscure two-year rule set in a clause in the UNCLOS which demands that the ISA finalize regulations within two years of such an announcement. Two years on, in July 2023, the ISA met again in Kingston, Jamaica, trying to finalize the contested mining code. Technically, as of July 9, 2023, companies can apply for mining permits, and several companies intend to do so. Nauru’s joint application with Vancouver-based The Metals Company, which is leading the charge to mine the deep-sea floor, is expected to be filed, based on an ISA-granted exploration contract in the Clarion-Clipperton Zone between Mexico and Hawaii. It is unclear how the ISA will review these applications, and whether approval could be delayed once received. Without an approved extraction rulebook, we could see seabed mining commence without any environmental or distributive regulations in place.

While companies are seeking to commence extraction, voices calling for a moratorium are growing ever louder. Along with countless scientists, environmental organizations and Indigenous groups, individual countries—e.g. Germany, Costa Rica, France, Spain, Chile, New Zealand and several Pacific nations—have called for a “precautionary pause” or a ban on the deep seabed mining. Loss of benthic habitat, species extinction, noise and chemical pollution, sediment plumes and electromagnetic effects are named as the main environmental harms. The EU has also stated that marine minerals cannot be exploited before the effects of deep-sea mining on the marine environment have been sufficiently researched, the risks understood, and technologies and operational practices made harmless. The moratorium call has been joined by big corporations such as Google, Volkswagen, BMW, Volvo, and Samsung SDI, representatives of whom signed a World Wildlife Fund call for a moratorium on deep-sea mining and committed to not sourcing any minerals from the seabed, to excluding such minerals from their supply chains, and to not financing deep seabed mining activities.

Extracting and Sharing Common Property or Safeguarding the Environment?

At this point, the future of seabed mining is fraught with high uncertainty. The new global agreement on the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ) aims to significantly strengthen conservation and sustainable use of marine biodiversity. It is, however, still unclear whether and how it will affect the ISA’s regulatory framework for seabed mining. What is clear is that how the seabed regime develops will seal the fate of this enormous global commons. It will determine whether humans are able to change their approach to global commons—whether we will continue treating them as mere extractive frontiers open to exploitation for economic benefit or finally approach them as fragile environments with their own identity and integrity, vulnerable to human destruction and hence in need of stewardship and protection.