Deep-sea Mining (DSM) represents a pivotal intersection of resource extraction, environmental policy, and international law, particularly amid the ongoing climate crisis. As terrestrial mineral resources diminish, the deep seabed has attracted increasing interest for its untapped deposits of valuable minerals essential for renewable energy technologies, such as lithium and cobalt, intensifying global competition for these rare minerals, overshadowing environmental concerns.
While many states including India, have accepted the new reality of deep-sea mining, there is an international coalition of states that have called for a moratorium on deep sea mining. Citing environmental concerns in the absence of scientific certainty about the sustainability of DSM and its impact on the marine ecosystem, they demand a more robust legal framework for regulating DSM activities. The recent advisory opinions on the liabilities of states involved in DSM activities and obligations of states with respect to climate change highlight a significant lacuna in international law that must be addressed before commercial exploitation of the deep seabed is permitted.
This article presents a case in favor of the moratorium by highlighting the problems in the liability regime set under for environmental harm caused by states and private parties in the context of DSM activities. It then analyses why this limited liability regime for states is likely to continue given the anti-conservation nature of legal and political discourse on regulating the deep seabed.
A Carte Blanche for States
The premise of the UNCLOS deep seabed mining regime is that the deep seabed and its resources are the “common heritage of mankind” and mining activities must be carried out “for the benefit of mankind” as a whole. As per Article 153 (2) (b) of UNCLOS, activities within the Area (both exploration and exploitation) may be carried out by state parties or state enterprises, or natural or juridical persons who are either nationals of the State party or effectively controlled by nationals of the State party when sponsored by the State.
In order to undertake these activities, a formal written plan of work, with a sponsorship agreement, needs to be submitted which, when authorised by the ISA, takes the form of a contract. This makes the distinction between a ‘Contractor’ and a ‘Sponsoring State’ and creates additional contractual obligations on the Contractor both from the exploration/exploitation contract with the ISA and the sponsorship agreement with the State party. It is possible that the State party itself submits the plan of work and acquires the status of both sponsoring State and Contractor too.
The obligations of state actors, with respect to activities in the Area, were laid down in the Advisory Opinion of the Seabed Disputes Chamber in 2011. State parties have twin obligations under the present regime; to ensure compliance by sponsored contractors, and for the states to abide by international norms and laws relating to the Area. The obligation to ensure compliance requires the state to do their “due diligence”, meaning that they must put forth their best practices and legal enforcement mechanisms to ensure that contractors comply with the international law. There must be reasonable vigilance and exercise of administrative control over the activities of the contractors to satisfy the due diligence requirement.
The opinion explicitly notes that there is no strict liability in case of any environmental harm. This implies that the obligation of the sponsoring states is limited to conducting an EIA and nothing more than a supervisory check on the contracting party. By limiting state liability to failures of due diligence, international law creates a liability gap whereby harm occasioned by activities that do not flow from state negligence are left unaddressed in international law. This implies that a sponsoring state cannot be held liable for the fault of the contractor, regardless of the harm caused, and more importantly, there does not exist a punishment mechanism in international law for private parties for such environmental harm.
The advisory opinion assumes that the sponsoring state cannot be held liable for the actions of the contracting party since they have no control over their practices. Firstly, it would be improper to allow the state to avoid liability by promoting contracting parties to act freely. Most of these are private companies and firms and do not necessarily have many relations to the state. However, it is the state that is a party to the United Nations Convention on the Law of the Sea and is required to undertake the responsibility of the actions undertaken by the contracting parties. In rather contractual terms, if the state is benefiting from the DSM activities, they must also be held liable for the damage caused by these DSM activities.
Absence of a Liability Regime
While recourse to domestic law is the only option to punish private parties, there is no treaty or customary law obligation to set a liability regime for contracting parties in the domestic legal system. Thus, these private entities would essentially be operating in a legal vacuum with no consequences attached. There may also be instances where sponsoring states can set up a civil liability regime, but this would be countered by different liability regimes set by different states, giving these private entities the option to set up a contract with the most liberal legal system. This can only be curtailed by setting up of a legal liability regime for private non-state actors, as also envisaged in Article 235(3) of UNCLOS and noted by the ITLOS in connection with deep seabed mining. However, private actors have no locus in international law, so it would be difficult to set up a framework without their consent or consultation. Additionally, there is no standard form of liability regime that can be adopted uniformly across jurisdictions.
At the same time, there is a question of remedies against the environmental harms. It is difficult to quantify the harm (actual amount of damage) to the ecosystem in the absence of comprehensive scientific data. Thus, asking for damages becomes increasingly difficult for claimants, worsened by the fact that there is very little consensus on how these damages must be calculated. In the international law framework, there exists other remedies as well, such as declaratory reliefs which can be employed by claimants. The ICJ in several cases such as the Pulp Mills case and the Road case have limited their jurisdiction to grating a declaratory relief only, where it was alleged that the states had not carried out EIA, resulting in a procedural breach. While there are certain benefits of a declaratory relief, it does little to mitigate the damage caused by the DSM activities and does not punish the contracting party in any way.
Systemic Issues in the ISA Regime
The principle of “Common Heritage of Mankind” has now turned into a justification for exploitation, where mining in the deep sea is considered as a necessary precondition for economic growth and transition to the green economy and non-fossil fuel dependent development. There is a recognised need for incentivising investment in the mining projects and making the regime more conducive to private interests. Over the course of the development of this principle, the argument changed from open access to one of creating a structured property rights regime, that is accepted in international law and is capable of being executed. This was done to prevent chaos in the deep sea and the justification then became about providing equitable access to exploit the resources as opposed to open access in general.
While the Common Heritage principle requires that certain resources are available to all, the current regime only recognises states as negotiating partners. While private contracting parties are major players in the DSM industry, when it comes to negotiations and consultations, it is the states that have the last say. Since each state has undertaken the responsibility to govern its own activities in the deep sea, there is a lack of communication and cooperation among states. The over-reliance on private support for mining activities meant that the state’s actions were now guided by market and profit interests, reducing the scope for collaboration as originally intended in the UNCLOS such as technology transfers and promotion of development activities. The ISA has also been silent on any resource or benefit sharing frameworks that are supposed the benefit the entire mankind as a result of the exploitation of the seabed.
More importantly, there is a broader disconnect among states to act in furtherance of a common benefit and the debate has now turned to be more territorial and more property rights based, with the process becoming increasingly transactional. One of the biggest concerns about the current debates on DSM is their complete ignorance of the marine ecosystem as a separate entity. The negotiations revolve mostly around revenue sharing arrangements and damage mitigation and liability regimes. However, scientific uncertainty coupled with the vast magnitude of the deep sea shows that the delicate marine ecosystem must be preserved, and there is no guarantee that DSM impact can be mitigated or avoided.
Conclusion
The current legal framework governing DSM, primarily established by the United Nations Convention on the Law of the Sea (UNCLOS) and administered by the International Seabed Authority (ISA), is fundamentally flawed. It operates under the principle that the deep seabed is the “common heritage of mankind,” yet this principle has been undermined by the lack of the intent to preserve and focuses more on economic exploitation. The ISA’s existing regulations are inadequate to address the complexities and uncertainties associated with DSM activities. The limited liability regime places an undue burden on states to ensure compliance without holding them accountable for environmental damages that may arise from mining operations. This creates a significant gap in responsibility, leaving potential ecological harm unaddressed. Given these challenges, the need for a moratorium on deep-sea mining until a more effective regulatory framework can be established becomes all the more urgent.
Rachit Mathur is an undergraduate law student at National Law School of India University, Bengaluru.
Picture Credit: Reuters