A Hole in the Bottom of the Sea: Does the UNCLOS Part XI Regulatory Framework for Deep Seabed Mining Provide Adequate Protection against Strip-Mining the Ocean Floor?

Abstract

The abyssal plain — the deepest part of the ocean — is littered with polymetallic nodules: lumps of minerals deposited through accretion over the course of millions of years. The existence of these mineral deposits, although not their exact nature, has been known since at least the mid-nineteenth century; Jules Verne wrote about them in 20,000 Leagues Under the Sea. For a century and a half, though, the engineering challenges of collecting these nodules made them nearly as economically unfeasible as asteroid mining.

Nonetheless international law took into account the possibility that technological change and increasing prices for the metals contained in the nodules would make such mining practical in the future. The United Nations Convention on the Law of the Sea, concluded in 1982 at the conclusion of the decade-long United Nations Conference on the Law of the Sea, contains the very lengthy Part XI — a treaty within a treaty — regulating mining and dredging of the deep seabed.

This attempt to create a regulatory framework for an industry that did not yet exist created a great deal of scholarly interest when the treaty was concluded, and again in the mid-1990s, when it briefly appeared that mining the polymetallic nodules might become technologically and economically feasible. A third surge of interest in the subject began recently, when the International Seabed Authority (the agency charged with administering deep seabed mining under Part XI) announced that it would begin issuing deep seabed mining permits.

This is not another article on Part XI. A great many excellent articles, books, and other works have already explored the topic thoroughly. Rather, this article looks at whether Part XI still makes sense as a regulatory framework, given the enormous advances in environmental science that have taken place in the decades since it was drafted. We now know that the polymetallic nodules are not just lifeless mineral lumps sitting around on the ocean floor waiting for someone to come pick them up. Rather, they support immensely complex, diverse, and fragile ecosystems. We also know that the damage done by early dredging experiments has not healed after several decades; the dredged areas remain lifeless deserts where (judging from similar areas that were not dredged) must once have been thriving ecosystems.

What we don’t know is how these deep-seabed ecosystems interact with our own. The decades since the drafting of Part XI have seen advances in our understanding of the biosphere in many areas, and a corresponding understanding of humanity’s fragile place within it. At the time of the drafting or Part XI we did not know how important airborne bacteria are to rainfall and snowfall; through sheer good luck, anthropogenic release of antibiotics into the water cycle from activities such as cattle farming did not result in a global drought. We did not know how much of the earth’s biomass consisted of slow living deep subterranean archaea and bacteria, and we still do not understand the importance of that huge chthonic biomass in the carbon cycle. Destruction of the deep seabed ecosystem, in all it biodiversity, would be regrettable for its own sake. It also has the potential for unanticipated, and currently unknowable, environmental effects in the human areas of the biosphere.

Situations like this are the reason the precautionary principle exists. Simply stated, the principle holds that some forms of environmental damage are potentially so severe that measures that might prevent them may have to be taken even before the efficacy of and necessity for those measures can be determined. Although a precise definition of the precautionary principle is difficult to pin down, a useful starting point can be found in the second sentence of Principle 15 of the Rio Declaration on Environment and Development: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” In other words, even though traditional cost/benefit risk analysis might permit the activity to go forward, where there is an unknown risk of extremely high-magnitude harm, the activity should be delayed until the risk can be assessed more accurately.

Finally, there is a human rights aspect to the problem. The minerals obtained via deep seabed mining would supplement or substitute for resources often located in poor countries with political and economic difficulties, notably but not only the Democratic Republic of the Congo. These minerals are then used to produce expensive computer goods such as tablets and cell phones. Deep seabed mining, if successful, will lower the cost of these minerals, depressing the economies of those countries still further and increasing the suffering of the people living and working there. The same amount of ingenuity and effort, if directed toward the goal of ensuring that the economic benefit of the extracted resources reaches the inhabitants of the countries from which they are extracted, could not only avoid an environmental harm of unknown magnitude but could also improve not only the economy of the countries in which the resources are extracted, but consequently of the world as a whole.

Keywords: Deep seabed, environmental law, international law, international environmental law, law of the sea, mining, natural resources, precautionary principle, public international law, United Nations Convention on the Law of the Sea, UNCLOS

JEL Classification: K00, K3, K32, K33