Regulation is key to the sustainable development of deep seabed mining
A guest blog by Michael Lodge, Secretary-General of the International Seabed Authority | Originally published in The Economist, Tuesday 2 April 2019
Deep sea mineral exploration is one of the most tightly regulated activities in the ocean. Under international law, exploration, as distinct from marine scientific research (which is open to all States), may only be undertaken under a contract with the International Seabed Authority (ISA), an intergovernmental organization based in Jamaica and established by the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
UNCLOS – the ‘constitution for the oceans’ – took the important step of setting aside the deep seabed beyond national jurisdiction and its mineral resources as the ‘common heritage of mankind’. It gave the ISA the exclusive mandate to manage deep sea mineral resources for the benefit of mankind. As a result, the deep-sea mining regime in UNCLOS is the most innovative legal regime ever designed by humankind for the equitable and sustainable use of natural resources.
This carefully balanced but comprehensive legal regime was created to prevent a scramble for resources by technologically advanced countries in the deep sea, and to ensure that scientific research, exploration and exploitation would benefit all of humanity. It was developed to ensure mining the deep sea wouldn’t take place on a first-come, first-served basis, but rather it would fall under international management with clear global environmental standards.
Over the last 25 years, ISA has developed a comprehensive set of rules dealing with exploration for deep sea minerals. With increasing regulatory certainty, combined with rising mineral prices as demand for so-called ‘green metals’ (the metals needed to support the low-carbon transition such as copper, cobalt and nickel) surges, commercial interest has grown rapidly, particularly over the past five years. Presently, there are 29 active mineral exploration projects in the deep seabed, involving 22 different countries. Commercial exploitation was attempted in the 1970s on a small scale, but has not yet taken place, primarily due to the lack of agreement on international regulations.
Last week, a major step forward took place with the release by the ISA’s Legal and Technical Commission, a 30-member expert body, of its proposals for a draft Mining Code that would allow for commercial exploitation of deep-sea minerals. The Mining Code, which has so far taken five years to develop, including several rounds of global stakeholder consultation, will permit exploitation of the deep sea in a way that balances the need for minerals with rigorous environmental protection. The Code will require States or mining companies planning to undertake activities in the international seabed area to carry out prior environmental impact assessments, abide by stringent environmental criteria and account for continuing compliance through oversight by independent entities. Unlike comparable activities within national jurisdiction (i.e., up to a country’s 200 nautical mile on the continental shelf), which are subject to national regulation which may vary from country to country, these standards are applicable globally.
A unique feature of the regime is that it will require a portion of the financial rewards from mining to be paid to the ISA and then shared with developing countries according to ‘equitable sharing criteria’. How big those rewards will be, and how much revenue will in turn flow to the ISA, is still to be decided. In any case, it is likely that profits will be slow to roll in during the early years of exploitation, mainly as a result of the high capital costs of designing and building the specialized ships and collector vehicles that will be needed.
A big challenge here is the question of how to tackle the problem of distributing the financial rewards. UNCLOS calls for, but does not define, equity, a complex idea that resists simple formulations. For many States, the fact that deep-sea mineral resources are the common heritage of mankind suggests a redistribution of income from wealthier States to poorer States, particularly least developed and landlocked States. Others have suggested that intergenerational equity would be better served by the creation of a resource fund, like a sovereign wealth fund, that could be used to support global sustainable development goals.
The Mining Code will be reviewed by the ISA Council in July 2019. The Council, which is made up of 36 member States, has set itself a target of 2020 to finalize the Code. It is important to get it right, and it is true that complex, political, economic, technological, scientific, environmental, social, industrial and legal aspects need to be sensitively addressed to achieve a commercially viable and socially responsible industry. Nevertheless, I can think of no other activity in the ocean where we have had the chance to put the rules into place before the activity has occurred, and we should take every advantage of this opportunity.
Regulation is key to the sustainable development of deep seabed mining
Mr. Michael W. Lodge, Secretary-General, International Seabed Authority | Originally published in the China Dialogue
Mining and metals are essential to achieving the 2030 Agenda for Sustainable Development. As the world’s population continues to grow, from 7 billion today to 9.6 billion in 2050, the demand for critical metals will continue to increase. The European Commission estimates for example, that demand for copper – one of the key minerals of interest for deep seabed mining, could rise by up to 341% by 2050 compared to 2010.
Deep seabed mining has the potential to provide long term socio-economic benefits to society. The question is, how can we use this resource in a way that is sustainable, and minimises the impact on the marine environment?
The good news is, we know how.
For 25 years, the International Seabed Authority (ISA) has carried out its mandate to implement the legal regime established by the 1982 United Nations Convention on the Law of the Sea (UNCLOS), to achieve the sustainable use of marine mineral resources, for the benefit of mankind as a whole.
ISA is the only forum where all 168 Parties to UNCLOS, including 167 Member States and the European Union, cooperate to administer the mineral resources in areas beyond national jurisdictions. It is the only organization mandated to ensure equity in access to the deep seabed, along with equitable sharing of benefits and scientific knowledge, and long-term sustainability in protection of the marine environment.
Fundamentally, environmental protection is at the forefront of ISA’s responsibilities. To be approved, even exploration activities must be accompanied by an assessment of their potential impact, along with a description of a programme for oceanographic and baseline environmental studies. These requirements must be abided by in accordance with the rules, regulations and procedures adopted under consensus, by all 168 members of ISA.
Since 2012, ISA has established nine marine protected areas on the seabed of the Pacific Ocean, as part of the regional environmental management plan adopted for the Clarion-Clipperton Fracture Zone. Collectively, these protected areas cover 1.6 million square kilometers. Compare this to the total area covered by the exploration contracts in the same region of 1.3 million square kilometers.
These areas represent one of the largest applications of marine protected areas on earth. ISA is also in the process of extending regional management plans for the North Atlantic, the Indian Ocean and the North West Pacific.
In light of this, any commercial exploitation or deep seabed mining activities will not be permitted to proceed unless the 168 members of ISA are satisfied that rigorous environmental safeguards are in place, through globally applicable regulations.
As of today, ISA has approved 29 contracts for exploration of the international deep seabed area, involving 22 different countries, covering 0.7 per cent of the world’s seabed.
The research undertaken as part of these contracts is the main source of data and knowledge helping us to better understand the deep seabed environment and ecosystems. It is also through this research, that we will be able to identify the best measures required to protect the marine environment.
Over the last 25 years, ISA has developed a highly comprehensive set of rules, regulations and procedures dealing with prospecting and exploration for mineral resources in the international deep seabed area. Building on this, and as seabed activities progress, a major effort is currently underway to develop exploitation regulations, known as the Mining code, which includes a broad stakeholder consultation process.
I can think of no other activity in the ocean where we have had the luxury to put the rules into place before the activity has occurred, and I encourage everyone to participate fully in this process.
Once in place, these regulations will require any mining companies planning to undertake activities in the international seabed area, to abide by stringent criteria, and account for continuing compliance through oversight by independent entities.
The development of the regime under which mining of the deep seabed could take place occurs in a transparent, public-forum of consensus-building by the international community under international law.
It is done so within a framework of reference of environmental protection, sustainability, impact assessment and oversight. Most importantly, it is anchored in the driving principle that the proceeds of any mining of the deep seabed will be transparent, and for the benefit of mankind as a whole. This presents a unique opportunity for us to work together to ensure a sustainable future for all.