There is a lot of interest right now in the critical minerals found in the deep-sea. This heightened interest is driven by the growing demand for zero-carbon and low-cost energy sources, such as solar and wind power, and even batteries for electric vehicles. This movement is also related to global community’s ambition to transition from fossil fuels to renewables and more climate-friendly energy sources. The three known critical minerals in the deep-seabed—polymetallic nodules, polymetallic sulphides, and cobalt-rich ferromanganese crusts—provide elements, such as, nickel, iron, copper, manganese, cobalt, etc., that are essential to the production of the above renewable energy sources.
It is for the same reason why the International Seabed Authority (ISA), and the parties to the UN Convention on the Law of the Sea (UNCLOS) are heavily engaged in the completion of the Mining Code, particularly the regulations for the exploitation of these minerals. Despite the expansive scope of the Draft Exploitation Regulations, there are several issues that remain unresolved, such as, equitable sharing of benefits, effective control of sponsoring states on the contractors, rights and obligations of coastal states, etc.
The Draft Exploitation Regulations is anchored on several environmental principles including Precautionary Principle (see eg, Regulations 2 and 44), and the Principle concerning the conduct of Environmental Impact Assessment (EIA) (see eg, Regulations 47 and 48, Annex IV). This notwithstanding, there are observable gray areas in the application of these two principles particularly in the context of dispute settlement and judicial review.
First, there are uncertainties in the processes of EIA mechanism and Precautionary Principle application in the deep-sea mining in the area beyond national jurisdiction (‘Area’). Regarding EIA mechanism, while Regulation 47 of the Draft Exploitation Regulations states that the environmental impact statement ‘shall’ be in the form prescribed by the ISA under Annex IV, the said Annex IV itself states that the template is merely recommendatory and not prescriptive. Given this, one question here is: is the EIA mechanism meant to be an obligation of conduct, or of result? Meanwhile, Regulation 44 of the same Draft vests the general obligation to apply Precautionary ‘Approach’ (see generally, distinction between precautionary ‘approach’ and ‘principle’) to the ISA, Sponsoring States, and Contractors. In most environmental cases, the obligation to apply precautionary measures lies with the regulators (States) (see also Rio Principle 15) to prevent irreversible damage to the environment and to protect the public health and safety. There are several questions here: how would liability be distinguished among the three duty-bearers? What is the extent of each other’s obligation to apply Precautionary Approach or Principle? At which stage of the exploitation process can or should Precautionary Principle be applied?
Second, the elements of EIA and Precautionary Principle as set forth in relevant international law cases may not necessarily be applicable in deep-sea mining. In other words, any dispute involving extraction and exploitation of deep-sea minerals in the Area could be considered sui generis. In terms of judicial review, one can look at the ITLOS Seabed Disputes Chamber Advisory Opinion on the Responsibilities in the Area, in which the Chamber opined that the rationale behind the conduct of an EIA as the ICJ ruled in Pulp Mills can also be applied in the Area (para 158). It should be noted that Pulp Mills involves a transboundary pollution dispute, and not a dispute involving a global commons. The Responsibilities in the Area Advisory Opinion have two limitations. One, although the Advisory Opinion carries some persuasive value, it is not binding among states. And two, the opinion was issued in the context of deep-sea mining ‘exploration’, and not exploitation – an activity involving higher risk and harm to the environment. However, one significant contribution of the said Advisory Opinion is that it clarifies that both the application of Precautionary Principle and ensuring that the sponsored contractor conduct an EIA are under the due diligence obligation of the Sponsoring State (paras 122, 125-35, 141-50). More specifically, the Sponsoring State has a direct and independent obligation to apply Precautionary Approach (Principle). Therefore, it may be argued that liability arises in case of failure to perform this due diligence obligation.
And third, it can further be argued that the obligation of due diligent regulation and control could only arise if the threshold of ‘serious risk’ and ‘significant harm’ to the environment (see Rio Principles 15 and 17) is shown and met through ‘clear and convincing evidence’. This high threshold is the current rule set by the ICJ on EIA requirements in Border Activities / San Juan River (para 104). It is the same high standard that the ICJ used in Pulp Mills when it refused to indicate provisional measures because Argentina failed to show evidence that irreparable damage to River Uruguay was likely to happen (paras 75, 228). This follows the same line of argumentation in Trail Smelter Arbitration which requires the showing of ‘clear and convincing evidence’ to establish liability for transboundary environmental pollution. Should this high threshold be applied in a deep-sea mining dispute? It may be argued that the threshold could be lowered due to the sui generis nature of the deep-sea, being a part of the global commons, a common heritage of humankind, and unique and sensitive biodiversity. There might also be some cultural and indigenous elements of the Area. Mining is a resource-intensive activity and one that could go beyond the point of no return in environmental damage. Therefore, it would be reasonable to err on the side of caution.
These are some of the key issues surrounding the applications of Precautionary Principle and the Principle on EIA in the deep-sea mining. There are surely more questions than answers at this stage. As these two environmental principles are actively evolving, the content of the obligation to apply these principles will vary depending on the temporal and spatial context in which they are ought to be applied.
Author
Amiel Ian Valdez is a Research Fellow at the National University of Singapore, Centre for International Law.
