At the Bottom of Everything : Deep-Sea Mining in the Area and the Protection of the Marine Environment by International Law

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At the Bottom of Everything

Deep-Sea Mining in the Area and the Protection of the Marine Environment by International Law

Merel Blandien Hendrickx 31-05-15

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Merel Blandien Hendrickx Student number: 10423958 E-mail: merelhendrickx@gmail.com

Research Track: International and European Law: Public International Law

Date of Submission: 31 May 2015 Total EC’s: 12

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ABBREVIATIONS

Advisory Opinion 2011 Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area Agreement 1994 Implementation Agreement

ABNJ Area Beyond National Jurisdiction BEP Best Environmental Practice

CBD Convention on Biological Diversity CCZ Clarion-Clipperton Fracture Zone CER Chemosynthetic Ecosystem Reserves

Chamber Seabed Chamber of the International Tribunal for the Law of the Sea Crusts Regulations Regulations on Prospecting and Exploration for Cobalt-Rich Crusts Draft Articles ILC’s Draft Articles on the Prevention of Transboundary Harm from

Hazardous Activities

DSM Deep-Sea Mining

EEZ Exclusive Economic Zones

EIA Environmental Impact Assessment EIS Environmental Impact Statement

EMP Environmental Management Plan

EMS Environmental Management System

ILC International Law Commission

ISA International Seabed Authority

LOSC Law of the Sea Convention

LTC Legal and Technical Commission

Nodules Regulations Regulations on Prospecting and Exploration for Polymetallic Nodules

REE Rare Earth Element

ROV Remotely Operated Vehicle

Regulations Nodules Regulations, Sulphide Regulations and Crusts Regulations Rio Declaration 1992 UN Declaration on Environment and Development

Pulp Mills Case Case concerning the Pulp Mills on the River Uruguay of April 20th 2010

Seabed Chamber Seabed Chamber of the International Tribunal for the Law of the Sea Sulphides Regulations Regulations on Prospecting and Exploration for Polymetallic Sulphides

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Down in the world’s oceans, at the bottom of everything, lays the deep seabed. This is one of the least known and most unexplored areas on earth. It harbours both unique ecosystems and deep-sea minerals. The deep seabed is a site of inherent conflict, because recovery of those minerals poses danger to the marine environment.

The deep-seabed, beyond national jurisdiction, is referred to in article 1 (1) of the United Nations Convention on the Law of the Sea (LOSC) as the Area.1 The Area and its resources are the common heritage of mankind; meaning activities are carried out for the benefit of mankind as a whole.2 The International Seabed Authority (ISA) is an autonomous international organisation established by the LOSC on 16 November 1994. States Parties to the LOSC are ipse facto members of the ISA, through which they organise and control activities in the Area, especially in consideration of administering the resources of the Area.3 For a long time, mining the seafloor was not economically interesting, because of the technological challenges, high cost of operations and plentiful supply of metals in terrestrial mines.4 Presently, technological advances have reduced the challenges of deep-sea mining (DSM).5_{Furthermore, the global population is growing and increasingly dependent on} high-tech and green high-technology products, such as cell phones, solar cells, and hybrid cars.6 These products are dependent upon the production of metals and rare earth elements (REE). As demand increases and land-based minerals are depleting, DSM is becoming more economically viable and is a means of revenue generation for developing states.7

Despite the valuable prospects of DSM, it is also a contentious issue. The deep-sea environment is largely unexplored. Scientific research has only covered about 0,0001 per

1_{1982 UN Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November}

1994) 1833 UNTS 3. (LOSC).

The Area is defined as the ‘seabed, ocean floor and subsoil thereof, beyond the limits of national jurisdiction’.

2_{Art 133 (a) and 136 ibid. The concept of common heritage of mankind is distinct from traditional concepts of}

state sovereignty and freedom of the high seas. The use of the resources should benefit mankind as a whole, including developing States. This also means that no State can appropriate the Area and that it is only open to peaceful purposes.

3_{Art 157(1) ibid.}

4_{A. Ghosh and R. Mukhopadhyay, Mineral Wealth of the Ocean: a Treatise on Distribution, Origin,}

Exploration, Mining, and Management of Sea Floor Non-Living Resource (A. A. Balkena Publishers Rotterdam

1999) 20.

5_{J. Halfar and R. M. Fujita, 'Precautionary Management of Deep-Sea Mining' (2002) 26 2 Mar Pol’y 103. 25.} 6_{B. Nath and R. Sharma, 'Environment and Deep-Sea Mining: A Perspective' (2000) 18 3 Mar Georesources &}

Geotechnology 285. 285; Tearinaki Tanielu, 'Establishment of a National Regulatory Framework for the Exploration and Exploitation of Deep Sea Minerals: A Case Study for Kiribati' (United Nations - Nippon Foundation of Japan Fellowship Programme 2013) 15.

7_{UNEP Global Environmental Alert Service, 'Wealth in the Oceans: Deep Sea Mining on the Horizon?' (2014)}

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cent of the deep seafloor.8 Already, this has led to the conclusion that the deep-sea environment can be highly dynamic in space and time and probably has the highest biodiversity on earth.9_{Most species are also endemic to certain locations.}10_Deep-sea minerals are often found at precisely those sites, which are therefore of great interest to marine scientific research, biotechnology, and biological prospecting; and even in understanding the origin of life on earth.11 DSM will affect the thereto-valuable genetic resources, ecosystems, pelagic fish biodiversity and the marine environment itself, but to what extent is uncertain. Especially the impact of cumulative mining sites on the recovery of ecosystems is still difficult to determine. A worst-case scenario involves the extinction of certain endemic species.12

DSM constitutes an emerging use of the oceans, while there is still much scientific uncertainty regarding its negative impact on the marine environment. Therefore, this thesis sets out to analyse the adequacy of the applicable rules of international environmental law in protecting the marine environment from the detrimental impact of DSM and explores ways of improvement. This is done from an external legal perspective, aided by an examination of scholarly literature. Presently, commercial mining is not regulated.13 Furthermore, hardly any

8_{UNEP, 'Deep-Sea Biodiversity and Ecosystems: A Scoping Report on their Socio-Economy, Management and}

Governance' (2007) UNEP-WCMC Biodiversity Series No 28. 3.

9_{ibid 3.}

10_{Wolfgang Graf Vitzhum, 'International Seabed Area' in MPEPIL 1179 (2008) [12].} 11_{Craig H. Allen, 'Protecting the Oceanic Gardens of Eden: International Law Issues in Deep-Sea Vent}

Resource Conservation and Management' (2000-2001) 13 Geo Int'l Envtl L Rev 563. 568.

12_{R. Sharma, 'Deep-Sea Mining: Economic, Technical, Technological, and Environmental Considerations for}

Sustainable Development' (2011) 45 5 Mar Technology Society J 28. 29; Tanielu. Establishment of a National Regulatory Framework for the Exploration and Exploitation of Deep Sea Minerals: A Case Study for Kiribati. 17.

13_{In the exploitation phase, the mineral deposits are extracted from the seabed for commercial purposes. See}

Regulation 1 (3) (a) Decision of the Assembly of the International Seabed Authority regarding the Amendments to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (adopted 13 July 2000, updated and adopted 25 July 2013) ISBA/6/A/18, Selected Decisions and Documents of the Sixth Session 31-68. (Nodules Regulation); Decision of the Assembly of the International Seabed Authority regarding the Amendments to the Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (adopted 7 May 2010) ISBA/16/A/12/Rev.1. (Sulphides Regulation); Decision of the Assembly of the International Seabed Authority regarding the Amendments to the Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts in the Area (adopted 27 July 2012) ISBA/18/A/11. (Crust Regulations). Hereinafter the Regulations.

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impact on the marine environment is expected in the prospecting phase.14 It was therefore chosen to examine the exploration16 phase of DSM.

The study is set up as follows. Chapter 1 provides an overall impression of DSM. In Chapter 2, the environmental obligations, responsibility and liability of sponsoring States will be described and analysed. The same will be done for contractors in Chapter 3, and for the ISA in Chapter 4. Chapter 5 will show that a stricter application of the precautionary approach would aid the environmental protection offered by the DSM legal framework and highlights the issue of compliance. Finally, to improve protection, a stricter liability regime is recommended together with an environmental liability trust fund, as suggested by the Seabed Chamber of the International Tribunal for the Law of the Sea (Seabed Chamber or Chamber) in its 2011 Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion).17

14_{Gwenaëlle Le Gurun, 'Environmental Impact Assessment and the International Seabed Authority' in K.}

Bastmeijer and T. Koivurova (eds), Theory and Practice of Transboundary Environmental Impact Assessment (Legal Aspects of Sustainable Development, Martinus Nijhoff Publishers Leiden/Boston 2008) 221. 243. Prospecting is the general search for mineral sources on the seabed without any exclusive rights, which is normally carried out before the exploration phase. See Regulation 1 (3) (e) The Regulations.

16_{Exploration involves the search for mineral deposits and their analysis, but here the contractor is given}

exclusive rights over the deposits. This phase also consists of the testing of the mining equipment and, among others, the carrying out of environmental studies. See Regulation 1 (3) (b) ibid.

17_{Responsibilities and Obligations of States Sponsoring with Respect to Activities in the Area, Advisory}

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CHAPTER 1: DSM

This chapter will discuss several aspects of DSM, including the techniques used, resources mined for, and possible detrimental environmental impacts of the mining activities. Thereafter, an overview of the international legal framework for DSM will be provided.

1.1 The Current State of Affairs

Currently, exploration activities occur on a small scale, though they are rising in number. To start exploration, authorisation by the ISA is required.18 The activities must be carried out in accordance with an approved plan of work, in the form of a contract with the ISA.19 To date, there are twenty exploration contracts, whereas in 2010 there were only eight. Most contractors explore for polymetallic nodules, four of them for polymetallic sulphides and two for cobalt-rich crusts.20 The ISA is in the process of developing regulations for exploitation, which are anticipated to be ready in 2016.21 From there on, contractors are expected to apply for exploitation licenses. Amongst the contractors are States22 and entities sponsored by them, such as state entities and natural, or juridical persons.23 The Enterprise, an organ of the ISA, was also envisioned to carry out activities in the Area, but has remained inactive until date.24

1.2 Deep-Sea Minerals: Nature, Formation, Distribution, and Ecosystems

1.2.1 Polymetallic Nodules

Polymetallic nodules are potato-sized black rock formations. Nodules could contain a wealth of metals, such as iron, manganese, cobalt, copper, lead, nickel, and zinc; but also minor concentrations of molybdenum, lithium, zirconium and REE.25 The nodules deposits are found over vast areas of the ocean floor and could cover up to seventy-five per cent of the seafloor in their area of occupancy.26_{The richest deposits of nodules are located in the} Clarion-Clipperton Fracture Zone (CCZ) in the equatorial Pacific Ocean. Other regions of

18_{Art 153 ibid.}

19_{Art 153 ibid; Regulation 18 Nodules Regulations, Regulation 20 Sulphides Regulations, Regulation 20 Crusts}

Regulations.

20_{ISA, 'Deep Seabed Mineral Contractors' <http://www.isa.org.jm/deep-seabed-minerals-contractors> accessed}

24 February 2015.

21_{ISA. Background Press Release (12 July 2013) Doc SB/19/1.23 February 2015}

<http://www.isa.org.jm/files/documents/EN/Press/Press13/SB-19-1.pdf> accessed 02 February 2015

22_{Eg Canada, China, Japan, Russia, and the United Kingdom.} 23_{Art 153 LOSC.}

24_{Art 153 LOSC.}

25_{ISA, 'Brochure: Polymetallic Nodules' <http://www.isa.org.jm/sites/default/files/files/documents/eng7.pdf>}

accessed 18 February 2015. 2.

26_{SPC (a), 'Deep Sea Minerals: Manganese Nodules, a Physical, Biological, Environmental, and Technical}

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interest are the Central Indian Ocean Basin and the Exclusive Economic Zones (EEZs) of islands in the South Pacific Ocean, such as the Cook Islands and Kiribati.27_These commercially interesting deposits mostly lay at four- to six thousand meters depth on the abyssal plains. Those areas are characterized by an extremely low sedimentation rate of millimetres per million years.28

The abyssal plains are also found to have higher biodiversity compared to shallower depths.29 Moreover, many species are endemic to certain locations with a range of a hundred to a thousand kilometres.30 Depending on the abundance of the nodules, but also on their size and texture, they are host to different community structures and habitats.31 Importantly, the sessile organisms attached to the hard nodules differ from those in surrounding softer sediments.32 Thus, whilst uncertainty exists on the amount of species and their geographic range, research points towards high biodiversity and habitat heterogeneity associated with nodule deposits.33

1.2.2 Polymetallic Sulphides

Polymetallic sulphides can contain high concentrations of copper, zinc, lead, gold, and silver.34 The last two are most interesting to the international mining industry. The sulphides deposits are formed by hydrothermal mineralisation, at depths of five hundred to five thousand meters. Hydrothermal vents discharge acidic and metal-rich water, of a temperature up to four hundred degrees Celsius and are described as ‘chimney-like formations of dark rock’.35 The mixing of those fluids with cold seawater causes for precipitation of the metal sulphides, which settle out on the seafloor.36 The massive sulphides deposits are mostly

27_{ISA. Brochure: Polymetallic Nodules. 3; MIDAS, 'Managing Impacts of Deep-Sea Resource Exploitation'}

<http://www.eu-midas.net/> accessed 18 February 2015.

28_{Sedimentation is the process whereby a solid layer is formed around a nucleus. The nucleus could be}

anything, perhaps a shark’s tooth, or a shell. The solid layer forms by the precipitation of metals from the seawater and sediment pore water.

29_{SPC (a). Deep Sea Minerals: Manganese Nodules, a Physical, Biological, Environmental, and Technical}

Review. 20, 21, 25.

30_{B. Ebbe and others, 'Diversity of Abyssal Marine Life' in A. D. McIntyre (ed), Life in the World’s Oceans:}

Diversity, Distribution, and Abundance (Blackwell 2010) 139. in SPC (a). Deep Sea Minerals: Manganese

Nodules, a Physical, Biological, Environmental, and Technical Review. 21.

31_{ibid 25.} 32_{ibid 25.}

33_{See C. R. Smith, G. Paterson, J. Lambshead, A. Glover, A. Rogers, A. Gooday, H. Kitazato, M. Sibuet, J.}

Galeron and L. Menot, 'Biodiversity, Species Ranges, and Gene Flow in the Abyssal Pacific Nodule Province: Predicting and Managing the Impacts of Deep Seabed Mining' International Seabed Authority (Kingston, Jamaica, 2008) ISA Technical Study; No 3, pp 38.

34_{ISA, 'Brochure: Polymetallic Sulphides' <http://www.isa.org.jm/sites/default/files/files/documents/eng8.pdf>}

accessed 18 February 2015. 1, 3.

35_{ibid 1. They are formed above tectonic plate boundaries, together with new oceanic crust. Close to the vents,}

seawater seeps through the cracks of the volcanic ocean floor into subterranean chambers. Here the water

dissolves metals and other elements from the rocks, while it is heated by magma and later discharged.

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found at active vents. They will remain at a dormant vent, but eventually oxidize and crumble.37_{The deposits have mostly been located in mid-ocean at the East, Southeast and the} Northeast Pacific Rise.38_{In addition, hydrothermal vents were estimated to occur along the} mid-oceanic ridge system encircling the globe at intervals of approximately hundred kilometres.39

Hydrothermal vents are not only rich in minerals, but also home to unique communities of organisms. These have been able to adapt to the hot, metal-, and sulphide rich fluids and depend on chemosynthetical microbial processes, rather than solar energy to survive.40 At least six hundred vent-endemic species have been identified, including snails, mussels, shrimps, and various fish.41 These organisms are important for biotechnology, biological prospecting, and understanding the origin of life on earth.42

1.2.3 Cobalt-Rich Crusts

Cobalt-rich crusts contain a generally high percentage of cobalt compared to land-based ores.43 They are also a source for different metallic elements and REEs, such as titanium, cerium, nickel, platinum, manganese, phosphorus, thallium, tellurium, zirconium, and molybdenum.44_{Oxidized deposits of cobalt-rich ferromanganese crusts are found around the} globe at the tops and flanks of seamounts, at depths ranging from four hundred to four thousand metres.45 The crusts accumulate a few millimetres every million years onto the rock surface and form ‘pavements’ up to twenty-five centimetres thick.46 It is estimated that cobalt-rich crusts cover almost two per cent of the seabed, which is about six million square kilometres.47 The central equatorial Pacific region is said to offer the best potential for crust

37_{Allen. Protecting the Oceanic Gardens of Eden: International Law Issues in Deep-Sea Vent Resource}

Conservation and Management. 563. 578.

38_{ISA. Brochure: Polymetallic Sulphides. 2.}

39_{MIDAS. Managing Impacts of Deep-Sea Resource Exploitation; SPC (b), 'Deep Sea Minerals: Sea-Floor}

Massive Sulphides, a Physical, Biological, Environmental, and Technical Review' in E. Baker and Y. Beaudoin (eds), Vol. 1A, Secretariat of the Pacific Community (2013) 8.

40_{R. E. Boschen and others, 'Mining of Deep-Sea Seafloor Massive Sulfides: A Review of the Deposits, their}

Benthic Communities, Impacts from Mining, Regulatory Frameworks and Management Strategies' (2013) 84 Ocean & Coastal Management 54. 55.

41_{SPC (b). Deep Sea Minerals: Sea-Floor Massive Sulphides, a Physical, Biological, Environmental, and}

Technical Review. 20.

Conservation and Management. 563.

43_{ISA, 'Brochure: Cobalt-Rich Crusts' <http://www.isa.org.jm/sites/default/files/files/documents/eng9.pdf>}

accessed 18 February 2015. 2.

44_{ibid 2.} 45_{ibid 2.} 46_{ibid 2.} 47_{ibid 2.}

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mining. The greatest concentration of minerals is found in shallow water crusts, which tend to be located within the EEZs of coastal states.48

Seamounts host a wide variety of fauna due to differences in substrate composition and depth, causing some organisms to be endemic to a certain region.49 Seamounts also offer an attractive environment for surface fish, sharks, seabirds, and marine mammals, thus hosting large pelagic fish biodiversity.50 It is uncertain if a significant difference exists between fauna growing on cobalt-rich crusts or non cobalt-rich crusts. The biological communities found on cobalt-rich crusts are affected by mining activities.52 If crustal composition influences biodiversity, the harm caused by mining activities to biodiversity will be more severe.

1.3 DSM Techniques

In the exploitation phase, all mining equipment to be used in the extraction phase is tested. In general, the extraction phase consists of the liberation of minerals from the seafloor by a remotely operated vehicle (ROV).53 This vehicle rides on the seafloor and flattens, cuts or crushes rock. The minerals will then be pre-processed at the bottom, following the vertical transportation of slurry of ore to the surface.54 Most mining techniques make use of dewatering with seawater to separate the ore from sediments prior to shipping the materials.55 Hereby a more valuable load can be transported to shore. The used seawater will contain tailings from the mining, which are usually fine particles.56 This water will be pumped back into the ocean and released.57

The main difference between the techniques proposed for the different minerals is their liberation from the seafloor. Because nodules are freely distributed on the sea bottom, they can be ‘collected’.58 This is a nonetheless difficult process, because of the rocky seafloor with

48_{ibid 2.} 49_{M. Clark, C. Kelley, A. Baco and A. Rowden, 'Fauna of Cobalt-Rich Ferromanganese Crust Seamounts'}

International Seabed Authority (Kingston, Jamaica 2011) ISA Technical Study; No 8, pp 83. 2, 73; SPC (c), 'Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review' in E. Baker and Y. Beaudoin (eds), Vol. 1C, Secretariat of the Pacific Community (2013) 31.

50_{ibid 20.}

52_{Clark, Kelley, Baco and Rowden. Fauna of Cobalt-Rich Ferromanganese Crust Seamounts.}

53_{Ecorys, 'Study to Investigate State of Knowledge of Deep Sea Mining: Draft Final Report under FWC}

MARE/2012/06-SC E1/2013/04 for the European Commission - DG Maritime Affairs and Fisheries' (28 June 2014). 98, 99, 117-130.

54_{ibid 128-130, 132-137.} 55_{ibid 138-141.}

56_{ibid 142.}

Review. 37; SPC (b). Deep Sea Minerals: Sea-Floor Massive Sulphides, a Physical, Biological, Environmental, and Technical Review. 38; SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review. 34.

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obstacles, outcrops, and steep slopes.59 A distinct feature of mining for sulphides is the necessity of breaking the rock, or completely removing it during excavation.60_{This is also} required for cobalt-rich crusts.61

1.4 The Environmental Impact of DSM

Despite scientific uncertainty, the most detrimental effect on the marine environment is considered to come from sediment plumes, pollution, and the physical impact of mining machinery. The following two sections will deal with these issues, after which the ecosystem vulnerability and recovery rate will be discussed.

1.4.1 Wastewater, Sediment Plumes, and Increased Toxicity

DSM is likely to alter the chemical concentration of the seawater. At the bottom, alteration could be caused by the release of metals from the substrate sediment during mining.62 In addition, there might be interaction between the seawater and the mineralised material, when the ore is vertically transported to the surface in an open system.63 Most importantly, the discharge of seawater used for de-watering is expected to impact toxicity. There will inevitably be tailings with an elevated concentration of toxic chemicals.64 A prediction of the potential effect of the chemical changes of the seawater on the marine environment and organisms is difficult, as this varies with the depth of release, and is not well studied. Nevertheless, low concentration levels of sulphides have been shown toxic to many marine organisms.65

Besides toxicity, the wastewater may create sediment plumes and could affect the local temperature and salinity. The impact thereof also varies with the depth of release. At the surface and the midwater column, sediment plumes could decrease the clear visibility that

59_{Hjalmar Thiel, Gerd Schriever and Eric J. Foell, 'Polymetallic Nodule Mining, Waste Disposal, and Species}

Extinction at the Abyssal Seafloor' (2005) 23 3 Mar Georesources & Geotechnology 209. 212.

60_{See Ecorys. Study to Investigate State of Knowledge of Deep Sea Mining. 120.} 61_{See ibid 128, 129.}

62_{D. S. Cronan, 'Review of Geochemical Impacts of Polymetallic Nodule Mining' in ISA (ed), Deep-Seabed}

Polymetallic Nodule Exploration: Development of Environmental Guidelines (International Seabed Authority

Kingston, Jamaica 1999) 118.

Review. 37; SPC (b). Deep Sea Minerals: Sea-Floor Massive Sulphides, a Physical, Biological, Environmental, and Technical Review. 38; SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review. 34.

64_{Ecorys. Study to Investigate State of Knowledge of Deep Sea Mining. 142.}

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deep-diving marine mammals need to hunt.66 The plumes could also decrease the available sunlight for photosynthesis on a local scale.67_{This affects the primary productivity and has a} negative impact on the growth of phytoplankton. The decreased phytoplankton growth may have long-term effects, due to the lowering of oxygen levels, or localized oxygen depletion.68 On the other hand, if the seawater at the bottom was very nutrient-rich, releasing it at the surface could stimulate the phytoplankton to grow.69 The phytoplankton could then form algal blooms, which are toxic and could harm fish, shellfish, mammals, and birds; and pose a risk to human health.70 Ocean currents could extent this local impact to a larger area.

At the seafloor, sediment plumes caused by the wastewater could clog the siphons of filter-feeding organisms, decrease filter-feeding efficiency, and bury seafloor organisms completely.71 The organisms could also be affected by the increased toxicity, temperature and salinity caused by sediment wastewater. Especially, since the deep-sea environment is characterised by low and relatively stable ambient temperatures and the organisms are not used to changes therein. Though, this is different for hydrothermal vents where temperatures are high and conditions change.

Review. 37; SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review. 34.

Review. 37; SPC (b). Deep Sea Minerals: Sea-Floor Massive Sulphides, a Physical, Biological, Environmental, and Technical Review.38; SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review. 34.

68_{Nath and Sharma. Environment and Deep-Sea Mining: A Perspective. 285. 287.}

Review. 37; SPC (b). Deep Sea Minerals: Sea-Floor Massive Sulphides, a Physical, Biological, Environmental, and Technical Review.38; SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review. 34.

70_{National Oceanic and Atmospheric Administration: United States Department of Commerce, 'What are}

Phytoplankton?' <http://oceanservice.noaa.gov/facts/phyto.html> accessed 03 March 2015.

Review. 36, 37; SPC (b). Deep Sea Minerals: Sea-Floor Massive Sulphides, a Physical, Biological, Environmental, and Technical Review. 36, 37; SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review. 32, 33.

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1.4.2 Physical Impact

On the deep seabed, the mining machinery has physical impact.72 The ROV will cause localised damage as it alters or compacts the texture of the substratum by its weight.73 If mining involves the physical removal and reshaping of the seafloor, surface animals or sessile living organisms will probably be crushed along with the rock or dislodged.74 The removal of the benthic communities will reduce biodiversity and the complexity of the habitat. For example, sulphides mining could involve the removal of chimneys, which will lead to the loss of a particular habitat for faunal groups.75 Furthermore, mining machinery will cause disturbance of sediments at the seafloor. For example, the cutting of rock surface for cobalt-rich crusts could release plumes of ultra-fine particles.76 The impact hereof is similar to that of sediment plumes caused by discharge water. Finally, the machinery could break down and cause corrosion, leakage, and oil or chemical spills.77

At the bottom, the deep-sea organisms are also affected by noise, vibration, and light, as their habitat is characterised by a relative silence and constant darkness. Low-frequency mining noise and vibrations could travel far from the mining site and cause for direct damage of the auditory senses of animals moving in the water-column. Otherwise, they might be affected in their communications, loose their ability to detect prey, or are forced into avoidance behaviour.78 Examples of affected species are deep diving whales and deep-sea fish that communicate at low-sound frequencies.79_{The feeding and reproduction behaviour of certain} fish species could also be affected by the introduction of light, thus indirectly affecting

72_{In the midwater-column collisions between fish and free-swimming invertebrates and the vertical transport}

system could occur. While this is not likely to have a large impact on populations, it might be problematic within areas that function as nursery grounds, or where populations amass. See SPC (a). Deep Sea Minerals: Manganese Nodules, a Physical, Biological, Environmental, and Technical Review. 37; SPC (b). Deep Sea Minerals: Sea-Floor Massive Sulphides, a Physical, Biological, Environmental, and Technical Review. 38; SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review. 34.

Review. 36, 37; SPC (b). Deep Sea Minerals: Sea-Floor Massive Sulphides, a Physical, Biological, Environmental, and Technical Review. 36, 37; SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review. 32, 33.

74_{Global Ocean Commission, 'Policy Options Paper #5: Strengthening Deep Seabed Mining Regulation'}

(November 2013) Paper presented at the 3rd meeting of the Global Ocean Commission, November 2013 <

http://www.globaloceancommission.org/wp-content/uploads/GOC-paper05-seabed-mining.pdf> accessed 04

February 2015.4.

76_{Ecorys. Study to Investigate State of Knowledge of Deep Sea Mining. 121.} 77_{Nath and Sharma. Environment and Deep-Sea Mining: A Perspective. 285. 287.}

78_{A. R. Popper and others, 'Anthropogenic Sound: Effects on the Behaviour and Physiology of Fishes' (2003)}

37 4 Mar Technology Society J 35.

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biodiversity.80 Finally, the light introduced by mining could else ways impact deep-sea species, potentially blinding them.81

1.4.3 Ecosystem Vulnerability and Recovery

The impact of mining activities is more damaging where the environment is stable and communities consist of many different, or endemic species. In comparison, the fauna is more abundant on cobalt-rich crusts than on polymetallic nodules, but richest at hydrothermal vents.82 The abyssal regions, where nodules are found, offer a relatively stable environment, which would make the ecosystems less adaptable and thus more vulnerable to changes. Mining activities will cause for the diversity of species to decrease, but a new community comparable to the pre-mining situation could develop.83 Still, recovery from impacts is expected to be slow and most sessile species will hardly recolonize the mined area.84

The extraction methods for polymetallic sulphides could particularly affect those vent-endemic species, which cannot exist away from the vents. It is probable mining will lead to local or even global loss of species diversity.85 The re-colonisation rate could be quick for some species, allowing the habitat to return to pre-mining patterns in five years.86 However, species at dormant vents and rare species are expected to require decadal-time scales for recovery.87 At dormant sites, the removed chimneys will not grow back, causing the mining impact to be long-term.88

Cobalt-rich crusts are found on seamounts, where dominant fauna are slow growing and can live for hundreds to thousands of years.89 This makes them very sensitive for and slow to

80_{UNEP Global Environmental Alert Service. Wealth in the Oceans: Deep Sea Mining on the Horizon? 50. 56.} 81_{Greenpeace. Deep Seabed Mining: An Urgent Wake-Up Call to Protect our Oceans. 8.}

Review; SPC (b). Deep Sea Minerals: Sea-Floor Massive Sulphides, a Physical, Biological, Environmental, and Technical Review; SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review.

83_{Thiel, Schriever and Foell. Polymetallic Nodule Mining, Waste Disposal, and Species Extinction at the}

Abyssal Seafloor. 209. 214.

Review. 34.

85_{C. Van Dover, 'Mining Seafloor Massive Sulphides and Biodiversity: What Is at Risk? ' (2011) 68 ICES J}

Mar Sci 341. 345, 346.

86_{Assuming that reserve sites are preserved from mining activity, the hydrothermal system does not stop and}

mining does not alter the fluid chemistry of the vents. See ibid 345.

87_{ibid 346.}

89 SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and

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recover from mining activities.90 Other human activities, such as dredging left signs that did not disappear for thirty years and after bottom trawling the recovery time is decadal.91

1.5 The International Legal Framework

Multiple international instruments establish or operationalize the environmental obligations of States, contractors, and the ISA in the context of DSM. The LOSC and the 1994 Implementation Agreement (Agreement), which together must be interpreted and applied as a single document, provide the global framework for the protection of the marine environment and the conservation of marine resources.92 Herein environmental obligations are imposed on States, contractors, and the ISA. Sponsoring States must also comply with general principles of international environmental law. Furthermore, the environmental provisions in the LOSC and the Agreement are given substance in the ISA’s Mining Code, of which the regulatory regime includes Regulations on Prospecting and Exploration for Polymetallic Nodules (Nodules Regulations), Polymetallic Sulphides (Sulphides Regulations) and Cobalt-Rich Crusts (Crusts Regulations) (the Regulations). The ISA’s decision to develop regulations for each type of resource is laudable, as it takes into account the unique effects of DSM on the different ecosystems in the Area.93 The Regulations impose obligations on the sponsoring States, contractors, and ISA.

Additionally, the ISA’s Legal and Technical Commission (LTC) may issue recommendations that complement the Mining Code and the environmental protection in the Area.94 They offer guidance to the contractors in the application of the rules, regulations and procedures of the ISA.95 The recommendations are not legally binding, but must be observed by the contractors as a contractual commitment.96_{Nonetheless, in light of the Advisory Opinion of the Seabed} Chamber, observing the recommendations became an element of the contractor’s due

90 P. K. Probert and others, 'Management and Conservation of Seamounts' in T. J. Pitcher and others (ed),

Seamounts: Ecology, Fisheries, and Conservation (Blackwell Fisheries and Aquatic Resources Series 12,

Blackwell Publishing Oxford 2007) 442.

91 A. Williams and others, 'Seamount Megabenthic Assemblages Fail to Recover from Trawling Impacts' (2010)

31 s1 Mar Ecology 183.

92 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of

the Sea of 10 December 1982 (adopted 28 July 1994, entered into force 28 July 1996) UNGA Res 263 UN GAOR 48th Session Supp No 49A UN Doc A/Res/48/263 (1994). (Agreement).

93_{Jason C. Nelson, 'The Contemporary Seabed Mining Regime: A Critical Analysis of the Mining Regulations}

Promulgated by the International Seabed Authority' (2005) 16 Colo J Int'l Envtl L & Pol'y 27. 70-71.

94 Art 162 (2) (o) LOSC; Regulation 31 (3) and 39 Nodules Regulations; Regulation 33 (3) and 41 Sulphides

Regulations; Regulation 33 (3) and 41 Crusts Regulations.

95_{Jean-Pierre Lenoble, 'The Legal Framework for Deep-Seabed Polymetallic Nodule Exploration' in ISA (ed),}

Standardization of Environmental Data and Information - Development of Guidelines, ISA/02/02 (2002) 27. 37.

96_{Regulation 32 Nodules Regulations; Regulation 34 Sulphides Regulations, Regulation 34 Crusts Regulations;}

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diligence obligation.97 Two sets of the LTC’s recommendations are considered. In 2012, a provisional Environmental Management Plan (EMP) for the CCZ was approved for a period of five years.100_{The EMP mostly creates regional management obligations for protection of} the environment by the ISA, but therein includes contractors. In 2013, the Recommendations for the Guidance of Contractors for the Assessment of the Possible Environmental Impacts Arising from Exploration for Marine Minerals in the Area (Recommendations) were adopted.101 The Recommendations provide a framework for environmental data collection by the contractors and may therein be considered as best environmental practice (BEP).102 Finally, whilst the obligations for the protection of the marine environment in the LOSC and the Agreement are somewhat specified in the Mining Code, some could still use clarification as to what is required in practice. Therefore, this thesis takes notice of the ISA’s technical studies, in which the results of annual workshops on DSM organised by the ISA are disseminated.103 Their purpose is mostly to keep the ISA up to date on the latest developments and provide guidelines for administering activities in the Area.104 The technical studies have no legal status, but do have scientific authority and could complement the environmental protection in the Area.

97_{Michael W. Lodge, 'The Deep Seabed' in D. R. Rothwell and others (ed), The Oxford Handbook of the Law of}

the Sea (OUP Oxford 2015) 226. 242.

100_{ISA. Legal and Technical Commission, Environmental Management Plan for the Clarion-Clipperton Zone}

(13 July 2011) Doc ISBA/17/LTC/7. (EMP).

101_{ISA. Legal and Technical Commission, Recommendations for the Guidance of Contractors for the}

Assessment of the Possible Environmental Impacts Arising from Exploration for Marine Minerals in the Area (1 March 2013) Doc ISBA/19/LTC/8. (Recommendations). These Recommendations deal with all types of deposits and are a revision and update of the earlier version, which only considered exploration of polymetallic nodules. See ISA. Legal and Technical Commission, Recommendations for the Guidance of Contractors for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area (2 November 2010) Doc ISBA/16/LTC/7.

102_{BEPs usually refer to accepted norms and customs of environmental and risk management and are variable}

with risk and scale. Michael W. Lodge and others, 'Seabed Mining: International Seabed Authority

Environmental Management Plan for the Clarion-Clipperton Zone. A Partnership Approach.' (2014) 49 Mar Pol’y 66. 68.

103_{Art 143 and 256 LOSC; Aline Jaeckel, 'An Environmental Management Strategy for the International Seabed}

Authority? The Legal Basis' (2015) 30 Int'l J of Mar and Coastal L 93. 115; Michael W. Lodge, 'Difficult Issues in the Law of the Sea and Future Challenges for the International Seabed Authority,’ Paper presented at the Third Advisory Board on the Law of the Sea (ABLOS) International Conference, Addressing Difficult Issues in UNCLOS, International Hydrographic Bureau, Monaco, 28-30 October 2003. Available at

<http://www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_Conf3/PAPER3-2.PDF> accessed 28 March 2015. 6.

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CHAPTER 2 SPONSORING STATES

Sponsoring States must comply with general principles of international environmental law, the LOSC and the Mining Code. Their environmental obligations can be direct, or of a due diligence nature. Moreover, the Seabed Chamber identified several direct obligations, which must be complied with independently of their due diligence obligation, but can be relevant for meeting it.113 All obligations will be discussed for each instrument respectively. Thereafter, the Seabed Chamber’s discussion of the standard of due diligence and the implications thereof for domestic measures to be taken by the States will be discussed complemented with the suggestions provided by Technical Study No 10.114 Finally, this chapter will end with a discussion on responsibility and liability.

2.1 General International Environmental Law

The most important principles of general international environmental law in relation to DSM are the no-harm rule and the corresponding obligation to prevent, reduce, and control harm; the obligation to apply a precautionary approach; and the obligation to carry out an EIA.

2.1.1 The No-Harm Rule and the Obligation to Prevent, Reduce and Control Harm

Since the no-harm rule was expressed in the 1941 Trail Smelter Arbitration, it has been reaffirmed in numerous arbitral and judicial decisions.115 It has also been adopted in many international environmental instruments, including the LOSC.116 The principle is now widely accepted and endorsed as a rule of customary international law and part of the corpus of international environmental law.117 According to the rule, States must prevent, or minimise the risk of significant transboundary environmental harm caused by activities within their jurisdiction or control that are not prohibited by international law.118_{Presently, the no-harm} rule is also thought to apply to pollution or environmental harm in areas beyond the limits of

113_{Advisory Opinion. [122], [123].}

114_{ISA, 'Environmental Management Needs for Exploration and Exploitation of Deep Sea Minerals.'}

International Seabed Authority (Kingston, Jamaica 2012) ISA Technical Study; No 10, pp 47.

115_{Trail Smelter Arbitration Case (United States of America v. Canada), April 6th 1938 (33 AJIL) and March}

11th 1941 (182 and 35 AJIL). The rule was confirmed in the following cases: Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226; PCA, Iron Rhine (‘IJzeren Rijn’) Railway Arbitration (Belgium v the Netherlands), (PCA Arbitral Tribunal, 24 May 2005).

116_{1972 UN Declaration of the United Nations Conference on the Human Environment (adopted on 16 June}

1972) UN Doc A/Conf.48/14Rev.1 (1973). (Stockholm Declaration); 1992 UN Declaration on Environment and Development, (adopted on 14 June 1992) UN Doc A/CONF/151/26, Vol 1. (Rio Declaration); 2001 ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries, Report of the

International Law Comission, 53rd Session (adopted on 11 May 2001) UN Doc A/56/10. (ILC Draft Articles).

117_{Art 38 (1) (b) 1945 Statute of the International Court of Justice (adopted on 26 June 1945, entered into force}

on 24 October 1945) 59 Stat. 1031 (1945); Patricia W. Birnie and A. E. Boyle, International Law and the

Environment (3rd edn, OUP Oxford 2009) 149.

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national jurisdiction (ABNJ), and to the global commons, even operating erga omnes.119 It is generally understood that the obligation to prevent, reduce and control harm is one of due diligence.120_{Since this is an obligation of conduct rather than result, there is no guarantee that} significant harm will be prevented.121 Further, as transboundary harm is not prohibited, a minimum threshold of harm exists.122 The threshold is determined by the combination of ‘risk’ and ‘significant’, including both a high probability of significant harm and a low probability of disastrous harm.123 Significant harm does not have to be serious, or substantial. However, it must be more than detectable, thus foreseeable.124

For DSM, the essence of the rule is that States may not undertake activities, or allow activities under their jurisdiction and control in the Area, without having due regard for the protection of the environment. As sponsorship requires ties of nationality and effective control, this provides the legal link between the sponsoring State and contractor, for reasons of jurisdiction, in the application of the no-harm rule.125 In addition, the threshold of a risk of significant harm is reached for activities in the Area. Research has made clear that there is a likeliness that harm to the marine environment will occur, though uncertainty exists on the size of the area, the durance of impact and the cumulative effect of multiple mining sites.126 Thus, States must comply with the due diligence obligation to prevent, reduce and control harm for DSM.

119_{Birnie and Boyle. International Law and the Environment. 145, 149; Jutta Brunnée, 'Sic Utere Tuo Ut}

Alienum Non Laedas' in MPEPIL 1607 (2010) [13]; Eg Art 194 (2) LOSC. Harm to the environment is also expressly included in article 2(b) of the ILC Draft Articles.

120_{Birnie and Boyle. International Law and the Environment. 147.}

121_{Art 3 ILC Draft Articles; Brunnée. Sic Utere Tuo Ut Alienum Non Laedas. [12].} 122_{Birnie and Boyle. International Law and the Environment. 143.}

123_{Art 2, commentary (1) ILC Draft Articles.}

124_{Birnie and Boyle. International Law and the Environment. 142; Corfu Channel Case. 244.}

125_{Duncan French, 'From the Depths: Rich Pickings of Principles of Sustainable Development and General}

International Law on the Ocean Floor - the Seabed Disputes Chamber's 2011 Advisory Opinion' (2011) 26 Int'l J of Mar and Coastal L 525. 539; It should be noted that the extent of the extraterritorial application of the no-harm rule is not agreed upon. The International Court of Justice expressed and confirmed this obligation of States to apply to activities ‘within their jurisdiction and control’ (emphasis added) A limitation to

extraterritorial application could be read into this formulation. See Brunnée. Sic Utere Tuo Ut Alienum Non Laedas. [15]; Legality of the Threat or Use of Nuclear Weapons [29]; Gabčikovo-Nagymaros Project, Judgment of September 25th 1997, I.C.J. Reports 1997. [53].

Review; SPC (b). Deep Sea Minerals: Sea-Floor Massive Sulphides, a Physical, Biological, Environmental, and Technical Review; SPC (c). Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts, a Physical, Biological, Environmental, and Technical Review.

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2.1.2 The Precautionary Approach

Whilst the obligation to prevent, control, and reduce harm to the environment has an established status in international law, the status of the precautionary approach is less established and certain.127 It has been adopted into different treaties either as a matter of policy, or as legally binding.128 For example, the precautionary principle is not articulated in the LOSC or the Agreement, though it is expressed in the Regulations.129 Different courts, tribunals, and individual judges also have varied in their determination of its substantive effect and legal status.130 This makes significant the dictum in the Advisory Opinion that the principle is part of customary international law.131

The precautionary approach has arisen from the realisation that wide ranging and long-term environmental problems require more than reactionary environmental policies.132 The approach is embodied in principle 15 of the Rio Declaration: ‘in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities.133 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’.134 This interpretation more or less restricts the adoption of strong environmental regulation, as only cost-effective measures are required.135 Furthermore, only deliberation is required, rather than acting through regulations.136 A stricter application of the principle would require action.137_{This does not mean that, while} exceptions exist, international law requires States to prove that their actions are

127_{Jonathan B. Wiener, 'Precaution' in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford}

Handbook of International Environmental Law (OUP 2007) [135].

128_{Birnie and Boyle. International Law and the Environment. 159.}

129_{Regulation 31 (2) Nodules Regulations; Regulation 33 (2) Sulphides Regulations; Regulation 33 (2) Crusts}

Regulations.

130_{French. From the Depths: Rich Pickings of Principles of Sustainable Development and General International}

Law on the Ocean Floor - the Seabed Disputes Chamber's 2011 Advisory Opinion. 525. 549.

131_{ibid 549; Advisory Opinion. [135]. The Chamber based this on the finding that the formulation of principle}

15 of the Rio Declaration is incorporated into a growing number of international instruments.

132_{David Hartley, 'Guarding the Final Frontier: The Future Regulations of the International Seabed Authority'}

(2012) 26 Temp Int'l & Comp L J 335. 343.

133_{The inclusion of ‘according to their capabilities’ could lead to stricter standards of application for developed}

than for developing States. What counts is not their status as developed or developing, but the specifics of the situation, including their level of scientific knowledge and technical capability. See Advisory Opinion [161]-162].

134_{Principle 15 Rio Declaration.}

135_{Hartley. Guarding the Final Frontier: The Future Regulations of the International Seabed Authority. 335.}

364.

136_{ibid 345, 364; Arie Trouwborst (ed), Precautionary Rights and Duties of States (Publications of the Institute}

of Public International Law of the University of Utrecht, Martinus Nijhoff Publishers Leiden/Boston 2006) 121-124.

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environmentally ‘safe’.138 This reversal of the burden of proof is exceptional and cannot be considered a principle of general international law.139_{The precautionary principle merely} lowers the standard of proof, as harm does not need to be likely to occur.140_{States must be} more cautious when a risk has been identified, but cannot be determined with sufficient scientific certainty.141 _{Still, the likelihood of harm must be more than hypothetical.}

Precautionary measures are required for DSM, as the principle extends to ABNJ.142 Further, a threat of environmental harm is certain to exist.143 Depending on the strictness of application of the principle, the following measures should not be postponed, or should be taken. First, as scientific knowledge constitutes an important part of the principle, States are required to stay in check with the appropriate scientific understandings.144 This also necessitates the performance of an EIA prior to acting, and continuously monitoring the impact of DSM on the marine environment.145 Second, regulation of DSM activities is required, which could include the obligation to apply BEPs, best available technology, or environmental quality standards.146

2.1.3 The EIA

From the obligation to prevent, reduce, and control environmental harm and the obligation to adopt a precautionary approach follows the obligation to take measures for the identification of risks of environmental harm.147 This obligation includes carrying out an environmental impact assessment (EIA) prior to acting and the continuous monitoring of the environmental impact of activities.148 The International Court of Justice, in the Pulp Mills case, decided this to be a general principle of international environmental law when activities ‘may have significant adverse impact in a transboundary context, in particular on a shared resource’.149 It declared the performance of an EIA a due diligence obligation for States.150_{The Seabed}

138_{Birnie and Boyle. International Law and the Environment. 158; Argentina argued so in Pulp Mills on the}

River Uruguay (Argentina v. Uruguay) (Judgement) [2010] ICJ Rep 14 (Pulp Mills Case).

139_{ibid 159; Trouwborst. Precautionary Rights and Duties of States. 223, 224.} 140_{ibid 163.}

141_{ibid 156.}

142_{Trouwborst. Precautionary Rights and Duties of States. 127.}

143_{Lahrs Suhr, 'Environmental Protection in Deep Seabed Mining: International Law and New Zealand's}

Approach' (2008) 12 NZ J of Envtl L 97. 111.

144_{S. Marr, The Precautionary Principle in the Law of the Sea - Modern Decision Making in International Law}

(Publications on Ocean Development 39 edn, Martinus Nijhoff Den Haag/London 2003) 10-27.

145_{ibid 10-27.} 146_{ibid 15.}

147_{ILC Report (2001) GAOR A/56/10. 391 [5]; Birnie and Boyle. International Law and the Environment. 143.} 148_{Pulp Mills Case. [197], [205].}

149_{ibid [204].} 150_{ibid [197], [205].}

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Chamber broadened this dictum by stating that an EIA must also be carried out in ABNJ; that the reference to shared resources could also apply to the common heritage of mankind; and that the content of the EIA can be determined by international law, rather than by national law alone.151 It thus globalised the application, as well as the content of an EIA.152 The Chamber concluded that the execution of an EIA is a general obligation under customary international law, though its scope is not determined by custom.153 Therefore, notice should be taken of the Recommendations and Technical Study No 10, to be discussed in Chapter 3.

2.2 The LOSC

The LOSC and the Agreement provide the global framework for the protection of the marine environment and the conservation of marine resources. In article 192 LOSC, the primary and unqualified obligation to protect and preserve the marine environment is expressed. This obligation is considered customary international law.154 It is extended to apply to ‘rare or fragile ecosystems, as well as the habitat of depleted, threatened or endangered species and other forms of marine life’.155 While the States’ sovereign right to exploit their natural resources is confirmed, it must be in accordance with their duty to protect and preserve the marine environment, including in ABNJ.156 The legal status of the Area, the common heritage of mankind, also provides for environmental protection.157 The principle has an inter-temporal dimension, which necessitates sustainable development.158 This requires the avoidance of undue waste and the protection of the environment from the negative effects of DSM.159_{It is unclear if marine genetic resources living on the seabed are covered by this} regime, because they are not included in the LOSC definition of resources in the Area.160 This causes for significant legal lacuna in the sustainable management of those genetic resources, which is enhanced by the restricted application within the limits of national

151_{Advisory Opinion. [148], [149]; Pulp Mills Case. [205].}

152_{Ilias Plakokefalos, 'Seabed Disputes Chamber of the International Tribunal for the Law of the Sea' (2012) 24}

1 J of Envtl L 133. 139.

153_{Advisory Opinion. [145]-[150]; Pulp Mills Case. [204], [205].}

154_{Advisory Opinion. [179], [180]; Birnie and Boyle. International Law and the Environment. 387.} 155_{Art 194 (5) LOSC.}

156_{Art 193 ibid.} 157_{Art 136 ibid.}

158_{Rüdiger Wolfrum, 'Common Heritage of Mankind' in MPEPIL 1149 (2009) [22].} 159_{ibid [22].}

160_{Art 133 (a) LOSC: Resources are defined as ‘all solid, liquid or gaseous mineral resources in situ in the Area}

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jurisdiction of the Convention on Biological Diversity (CBD)161 that usually offers protection.162

Article 194 LOSC contains the due diligence obligation for sponsoring States to use the best practical means at their disposal, in accordance with their capabilities, to prevent, reduce and control pollution of the marine environment from any source, inter alia, from installations and devices used for activities in the Area and from use of technologies under their jurisdiction and control.163 This includes pollution by sediment wastewater discharged by ships and could cover noise and light pollution.164 States must adopt measures in conformity with and no less effective than those developed by the ISA, for pollution caused by activities in the Area undertaken by ‘vessels, installations, structures and other devices flying their flag, or of their registry, or operating under their authority’.165

The sponsoring States must also assist the ISA in the exercise and control over activities in the Area by taking all necessary measures to ensure compliance of the contractor with its environmental obligations.166 Further, the LOSC awards the direct obligation to States to perform an EIA on activities within their jurisdiction, or control when those activities ‘may cause substantial pollution or significant and harmful changes to the marine environment’.167 The Agreement expressly requires sponsoring States to ensure an EIA is carried out by the contractor and in addition requires a proposal for oceanographic and environmental baseline studies prior to the commencement of exploration activities.168_{Finally, the sponsoring State} must provide recourse for compensation of environmental damage caused by polluting

161_{1992 Convention on Biological Diversity (adopted on 5 June 1992, entered into force 29 December 1993)}

1760 UNTS 97.

Conservation and Management. 563.

163_{Art 194 (3) (c) and 196 LOSC.}

164_{The pollution of the marine environment is defined by art 1 (4) LOSC as ‘the introduction by man, directly}

or indirectly of substances or energy into the marine environment’, thereby causing harm. Noise and light pollution would be covered by the reference to energy. See H. M. Dotinga and A. G. Oude Elferink, 'Acoustic Pollution in the Oceans: the Search for Legal Standards' (2000) 31 Ocean Development and Int'l L 151.

165_{Art 209 LOSC. Usually, the standards of other international instruments are thought to be incorporated into}

this primary obligation. However, for deep-sea mining, the arrangement of pollution standards is left to part XI LOSC and the ISA. For example, the London Dumping Convention and Marpol 73/78 are usually relevant in this context, but both explicitly exclude the disposal of wastes arising from deep-sea mining in the Area. See Art 1 (c) 1972 IMO Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted on 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120. (London Dumping Convention); Art 2 (a) (ii) 1978 IMO Protocol Relating to the 1973 International Convention for the Prevention of Pollution from Ships (including Annexes, Final Act and 1973 International Convention) (adopted on 17 February 1978, entered into force 2 October 1983). (MARPOL 73/78).

166_{Art 153 (4) and 139 LOSC.}

167_{Art 139 and 204-206 ibid; Advisory Opinion. [141].} 168_{Annex, Section 1 (7) Agreement.}

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activities of the contractor in the Area, to ensure the contractor meets his obligation to provide for reparation.169

2.3 The Regulations

The Regulations further specify the environmental obligations for sponsoring States. First, the precautionary approach and BEPs must be applied in the protection and preservation of the marine environment. Second, sponsoring States must assist the ISA in supervising the activities in the Area and in emergency situations.

2.3.1 Protection and Precaution

Regulation 31 Nodules Regulations and regulation 33 of the Sulphides and Crusts Regulations require the sponsoring State to apply a precautionary approach, as expressed in principle 15 of the Rio Declaration, and BEPs in ensuring the protection and preservation of the environment in the Area. As the Chamber declared the precautionary approach an element of due diligence and regards it as customary international law, sponsoring States cannot adopt the approach merely as a policy tool.170 Furthermore, the sponsoring State must ensure the contractor adopts a precautionary approach and BEPs as well.171 However, it is still unclear what the precautionary approach requires in practice. The ISA should operationalize it for sponsoring States to incorporate in their national DSM legislation.172

2.3.2 Assistance in Supervision and Emergency Situations

The sponsoring State must provide assistance to the ISA in the exercise and control over activities in the Area, including in the establishment and implementation of programmes for monitoring and evaluating the impact of DSM on the environment.173 Those programmes could involve the reservation of certain parts in the Area to be used solely as impact reference zones (IRZs), or preservation reference zones (PRZs). IRZs must be representative of the environmental characteristics of the Area and are used to assess the impact of DSM activities thereon. The PRZs are used to assess changes in the biodiversity and thereto must be free from activities and ‘ensure a representative and stable biota of the seabed’.174

169_{Advisory Opinion. [179]; Art 235 (2) and Annex III, Art 22 LOSC.} 170_{Advisory Opinion. [135].}

171_{ibid [136]-[137]} 172_{ibid 32, 33.}

173_{ibid [141]-[143]; Art 153 (4) LOSC; Regulation 31 (6) Nodules Regulations; Regulation 33 (6) Sulphides}

Regulations; Art 33 (6) Crusts Regulations.

174_{Regulation 31 (6) Nodules Regulations; Regulation 33 (6) Sulphides Regulations; Regulation 33 (6) Crusts}

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Furthermore, the ISA can order emergency measures in situations where an incident arising from activities in the Area is causing, has caused, or poses a threat of causing serious harm to the marine environment.175_{The sponsoring State is required to ensure the contractor has} provided the ISA with a guarantee of its technical and financial capabilities to comply with emergency orders, or the assurance that the ISA can take emergency measures.176

2.4 Due Diligence: Standards and Implications

In the Advisory Opinion, the Seabed Chamber has explained what the sponsoring States’ due diligence obligation entails and what its standards of application should be. The due diligence standard must apply equally to developed and developing states, to ensure the highest standards of protection of the marine environment.177 However, the standard of due diligence is variable with context, time, and risk of the activity. Thus, the standard would be higher for exploitation than for exploration, least high for prospecting and can differ among the resources.178

In order to comply with its due diligence obligation, the sponsoring State must adopt laws, regulations and administrative measures, which ensure compliance by the contractor and exempt itself from liability.179_{The adoption of appropriate rules alone is not enough, but a} certain level of vigilance is required in the enforcement and exercise thereof.180 Technical Study No 10 also discusses legislative and regulatory issues that should be dealt with in the domestic legislation and administrative procedures by the sponsoring State to comply with its due diligence obligation. The State should actively check upon the viability and responsibility of contractors, by inter alia, investigating the contractor’s track record.181 In addition, the sponsoring State is responsible for verifying if the contractor adopts BEPs and a precautionary approach, by reviewing the EIAs and monitoring the information supplied by the contractor.182 The State should thereto impose reporting requirements on the contractor.183

175_{Regulation 33 Nodules Regulations, Regulation 35 Sulphides Regulations, Regulation 35 Crusts Regulations.} 176_{Art 139 and 235 LOSC; Regulation 12 (10) (c) and 33 (8) Nodules Regulations; Regulation 13 (6) (c) and 35}

(8) Sulphides Regulations; Regulation 13 (9) (c) and 35 (8) Crusts Regulations; Advisory Opinion. [138].

177_{ibid [159].} 178_{ibid [117].}

179_{ibid [217], [218], [224].}

180_{ibid [115]; Pulp Mills Case. [197].}

181_{ISA, 'Environmental Management Needs for Exploration and Exploitation of Deep Sea Minerals.'}

International Seabed Authority (Kingston, Jamaica 2012) ISA Technical Study; No 10, pp 47.

182_{ibid 33.} 183_{ibid 33.}

At the Bottom of Everything : Deep-Sea Mining in the Area and the Protection of the Marine Environment by International Law

At the Bottom of Everything

Table of Contents