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Deep-Sea Mining and the Environment: An Introduction Read chapter Read first chapter

2019 | OriginalPaper | Chapter

Protection of the Marine Environment: The International and National Regulation of Deep Seabed Mining Activities

Authors : Pradeep Singh, Julie Hunter

Published in: Environmental Issues of Deep-Sea Mining

Publisher: Springer International Publishing

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Abstract

This chapter provides an overview of the international and national regulatory framework pertaining to deep seabed mining activities. It begins by discussing the UN Convention on the Law of the Sea, the backdrop for all marine activities – be they national or international – and examines the obligations of states to protect the marine environment from the harmful effects arising from deep seabed mining. Next, the chapter examines the international regime for deep seabed mining (i.e. “activities in the Area”), explaining the “common heritage of mankind” status of the Area (i.e. the international seabed); the functions of the International Seabed Authority (ISA), the international organization established to govern deep seabed mining in the Area; and the concept of state sponsorship of non-state entities (i.e. private actors) for deep seabed mining in the Area. The chapter follows with a discussion of the development of national legislation to regulate deep seabed mining, examining efforts in the Pacific region where many prospective deep-sea mining sites are located. This includes a look at the legislative regimes of several Pacific Island nations, namely, Papua New Guinea, Tonga and the Cook Islands, for whom deep seabed mining may soon become a reality – as well as New Zealand and Japan, countries with comparatively developed rule of law and legislative regimes that have undertaken or considered deep seabed mining in their national waters. Overall, the chapter critically describes and evaluates the current regulatory status in the international and national seabed areas and highlights some salient gaps that require urgent attention in order to ensure marine environmental protection and mitigate impacts on humans.

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previous chapter The Development of Environmental Impact Assessments for Deep-Sea Mining
next chapter Deep-Sea Natural Capital: Putting Deep-Sea Economic Activities into an Environmental Context
Footnotes
1
The contiguous zone is a maritime area contiguous to the territorial sea, in which a coastal state may exercise a number of sovereign acts in matters pertaining to its domestic customs, fiscal, immigration and sanitary laws.
 
2
As opposed to the exclusive economic zone, which must be declared, sovereign rights over the continental shelf exist as of right for up to 200 nautical miles since it is seen as an extension of land (Kaye 2016: 11). Rules of delimitation apply if there are overlapping claims from neighboring states, and as such a coastal state’s continental shelf may be less than 200 nautical miles. A coastal state may, under certain conditions pursuant to Article 76 of UNCLOS, extend its continental shelf zone for up to 350 nautical miles from its baselines.
 
3
It should be noted, however, that certain freedoms enjoyed at the high seas (beyond the rights to exploit natural resources and several others) may also be enjoyed within exclusive economic zones, such as navigation, overflight and the laying of submarine cables (see UNCLOS, Articles 58 and 86).
 
4
However, it is acknowledged that there is a growing trend to recognize the role of non-state actors in the realm of international law, especially pertaining to human rights.
 
5
Although UNCLOS foresees the establishment of the Enterprise as the independent arm of the ISA, particularly responsible to carry out seabed mining activities on behalf of mankind, the 1994 Implementation Agreement has effectively put this on hold.
 
7
In general, our definition of DSM entails harvesting mineral deposits in the deep sea at depths ranging from approximately 400–6000 m below sea level (Hunter et al. 2018; Miller et al. 2018).
 
8
In this chapter, PI nations refer generally to the 14 member countries of the SPC-EU DSM Project (excluding only Timor-Leste): Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu.
 
9
The EU provides €4.4 million in funding for the project.
 
10
European Parliament Resolution of 16 January 2018 on International Ocean Governance: An Agenda for the Future of Our Oceans in the Context of the 2030 SDGs (2017/2055(INI)), P8_TA -PROV(2018)0004, para 42.
 
11
A separate, more detailed law implementing the framework and elaborating procedures relating to fees, forms and regulations was reportedly in the works, as of 2016.
 
12
The Seabed Minerals Authority was subsequently established by the CI Government Cabinet in 2012. The Seabed Minerals Act 2009 officially entered into force on March 1, 2013.
 
13
Much publicity has centred around Trans-Tasman Resources’ application to mine iron sands from the seabed of South Taranaki Bight, located 22–36 km offshore from Patea at depths of between 20 and 42 m (thus not “deep-” sea mining, per se). TTR’s application was denied by the NZ EPA in 2014, only to be approved in August 2017. The EPA’s decision was overturned on by the High Court in Wellington (New Zealand Herald 2018), a decision currently being appealed by TTR and and crcross-appealed by environmental and indigenous groups at the Court of Appeal (Howard 2018).
 
14
The Crown Minerals Act 1991 is similar to older mining acts from this period and contains only one mention of the seabed in the definition of land (§2(1)).
 
15
See, e.g. more from the Labour and Green Parties: “The Green Party is concerned about the limited way in which the Crown’s obligations under the Treaty of Waitangi are implemented. Clause 14 provides for ways in which Māori may participate in decision-making but imposes no broader obligation on the Crown.
The bill should impose a general obligation on the Crown to administer and interpret the Act so as to give effect to the Treaty/Te Tiriti principles as legislation such as the Conservation Act 1987 does. And as iwi such as Ngāi Tahu sought, it should parallel the RMA to require the relationship of iwi and their culture and traditions with the marine environment, including taonga species, to be recognised and provided for in achieving the purpose of the Act”; “Labour is disappointed that iwi were not consulted in the drafting of this legislation. We share the concern of submitters that consultation with, and involvement of, iwi throughout the processes outlined in the bill are only optional and at the discretion of the EPA, especially given the lack of consultation so far. Labour members also support the submission of the Hokotehi Moriori Trust that the bill be amended to include reference to “Māori and Moriori” and “tikanga Māori and tikane Moriori” throughout the bill” (Commentary 2011). Further critiques from commentators include that the marine consent “applications are considered in the absence of a national planning framework for managing the oceans beyond our territorial seas. In addition, the EEZ Act is not currently supported by guiding documents such as national environmental standards, policy statements or plans that apply to the management of New Zealand’s coastal marine area…. The absence of such documents or a planning framework presents a significant challenge for EEZ decision makers charged with deciding marine consent applications, and operators looking to exploit New Zealand’s mineral resources” (Lamping 2016).
 
16
When China cut its export quotas on rare earth minerals by 40% in 2010, prices soared, leading the US, joined by the EU and Japan, to bring a case against China in the WTO’s dispute settlement body, which ruled against China. China subsequently dropped its quotas (World Trade Organization 2017).
 
17
Although states are required, pursuant to Article 208 of UNCLOS, to streamline their seabed exploitation activities and align them to standards agreed globally (or at least regionally), there is little evidence to indicate that such an endeavour is forthcoming. As a result differing standards and stringency in regulation would apply to both regimes, potentially causing efforts to protect the marine environment in one to cancel out the other. On the one hand, it is possible that stringent regulation and exacting standards adopted in the Area could shift contractor interest to areas within national jurisdiction where operational costs could be lower. This, in turn, could induce coastal states to engage in a race to the bottom to attract investors with weaker, less protective regulations. On the other hand, some contractors could elect to proceed with activities in the Area under the same scenario. This would entail increased operational costs, resulting in reduced revenue, and thereby potentially undermining the common heritage of mankind (as reduced revenue results in fewer financial benefits being available for equitable distribution among states, while the mineral resources of the Area continue to deplete). Consequently, streamlining environmental standards in both areas is critical.
 
18
Article 142(1) of UNCLOS.
 
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Metadata
Title
Protection of the Marine Environment: The International and National Regulation of Deep Seabed Mining Activities
Authors
Pradeep Singh
Julie Hunter
Copyright Year
2019
Book
Environmental Issues of Deep-Sea Mining

Print ISBN: 978-3-030-12695-7

Electronic ISBN: 978-3-030-12696-4

Copyright Year: 2019

DOI
https://doi.org/10.1007/978-3-030-12696-4_17