3.1 Area, Peaceful Purposes and Military Activities: a Matter of Definition

One of the crucial points raised in Arvid Pardo’s renowned address to the United Nations General Assembly in 1967, of the need to establish a regime for the exploitation of the resources of the Area, was that activities in this part of the sea should take place in a ‘peaceful atmosphere’. He stressed the rising concern that the Area could ‘… progressively and competitively [be] appropriated, exploited and used for military purposes by those who possess the required technology.’²³ This celebrated address, which called for this part of the sea to be declared as the Common Heritage of Mankind, acted as a trigger for the third United Nations Conference on the Law of the Sea (UNCLOS III) that eventually culminated in the adoption and the eventual coming into force of the LOSC 1982. The Convention requires that: ‘The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination and without prejudice to the other provisions of this Part.’²⁴ The phrase ‘use exclusively for peaceful purposes’ was not defined by the Convention. This therefore raises the issue of whether the peaceful purposes provisions of LOSC completely prohibit all military activities.

The scope of military activities must here be examined. According to Wolfrum, virtually all military activities at sea would fall under at least one of the following activities:

1. Navigation on the water surface or in the water column including all military activities connected with navigation.

Navigation and connected activities are performed as routine marine operations or periodic conditioned manoeuvres. They may serve one or more of the following purposes: exercising of ships, co-operation between navy, air force and land forces of one or more nationalities, the latter adding a further co-operation aspect (e.g. Ocean Venture 1981), control of the sea, projection of naval presence (e.g. the presence of US units in the vicinity of the Persian Gulf) and deterrence;

2. Emplacement of sea-based missiles for strategic purposes. This activity is presently fulfilled (mainly) by missile launching nuclear submarines;

3. The emplacement of sea-based surveillance devices such as fixed acoustic detection systems;

4. The emplacement of sea-bed based weapons systems for strategic or tactical purposes such as magnetic or acoustic mines against surface ships or submarines. Furthermore, the emplacement of strategic missiles on the seabed has been discussed;

5. The emplacement of sea-bed based surveillance devices like the fixed acoustic detection array systems which according to some sources have been deployed along the east and west coast of the United States and some strategically important points in the oceans;

6. Military research including the testing of weapons, conducted either on the water surface, in the water column, or the subjacent seabed and subsoil.’²⁵

It is doubtful that the list above could be regarded as a completely exhaustive list of what constitutes ‘military activities.’

Recently, an arbitral tribunal has had the occasion to give its interpretation of the definition of military activities. The Arbitral Tribunal in the South China Sea Arbitration (Merits) between the Republic of the Philippines and the People’s Republic of China,²⁶ in seeking to determine whether it had jurisdiction over the case, had to ascertain if the Chinese activities in the South China Sea were military in nature. The latter issue was reserved from its previous award on jurisdiction and admissibility.²⁷ The Tribunal was, however, quick to point out that its remit was merely to consider Article 298(1)(b), which applies to ‘“disputes concerning military activities” and not to “military activities” as such.’ In its view, the relevant question was to consider whether ‘the dispute itself concerns military activities, rather than whether a party has employed its military in some manner in relation to the dispute.’²⁸

Nonetheless, the decision of the Tribunal in this regard raises some stimulating ideas that could provide some guidance on what are military activities. For instance, the Tribunal points out that what represents a ‘quintessentially military situation’ is a state-centric conflict that involves the military forces of one State (i.e. Philippines) against a combination of military and paramilitary forces of another State (i.e. China) ‘arrayed in opposition to one another.’²⁹ Furthermore, the Tribunal, in determining that certain Chinese activities were not military in nature, was happy to rely on China’s repeated statements and position that the activities were primarily, if not wholly, for civilian use.³⁰ Ostensibly, this could appear to suggest that a State may solely decide on whether or not their activities at sea is military in nature. However, when this position is read along with the opinion of the Tribunal that it was not determining military activities, as such, but merely seeking to decide on whether Article 298(1)(b) was applicable to the arbitration, it becomes clearer that the Tribunal was merely taking the position that China ought to be estopped from relying on the exclusionary provisions of the Article. China had consistently declared that such activities were civilian and not military.

Clearly military activities would involve military confrontation between two or more states. However, it is clear that it goes beyond this as could be seen from the rather long, but obviously not exhaustive list, of possible military activities at sea provided, as quoted earlier, by Wolfrum.³¹

3.2 Are All Military Activities in the Area a Security Threat?

Yet the question arises as to whether all military activities in the Area constitute a breach of the peace thereby raising maritime (in) security concerns. Various States have interpreted this differently to suit their national interests. Certain States, especially developed States with nuclear capacity, interpret this provision as merely prohibiting military activities that has an aggressive purpose. These States argue that this provision would only prohibits military activities that are inconsistent with the United Nations Charter and other obligations under international law, which is what would create maritime (in)security.³² In support of this viewpoint it has been stated that Article 141, as well as other provisions related to use of the ocean for peaceful purposes,³³ should be interpreted in the light of Article 301 which states: ‘In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.’³⁴ The United States of America is an example of a State that adopts this viewpoint. In a commentary which accompanied the transmittal by the President of the LOSC 1982, President Clinton stated:

In furtherance of this principle, article 141 declares the Area to be open to use by all States. Only mining activities are subject to regulation by the International Seabed Authority […]. Other activities on the deep seabed, including military activities, telecommunications and marine scientific research, may be conducted freely in accordance with principles of the Convention pertaining to the high seas, including the duty to have reasonable regard to other uses.³⁵

In addition, the commentary points out that none of the LOSC provisions on ‘peaceful purposes’ and ‘peaceful use’ where intended to create new rights or obligations nor impose restraints upon military operations, or impair the inherent right of self-defense, and so long as the military activities are consistent with the principles of international law they were not prohibited by international law generally and the LOSC in particular.³⁶ Kraska and Pedrozo further cite a 1985 United Nations Secretary-General’s Report, which concluded military activities that were consistent with the provisions of Article 2(4) and Article 51 are not prohibited by the LOSC.³⁷ It would appear that from this standpoint military activities are not prohibited by the LOSC in the Area in the following instances: first, if they do not amount to a threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations; second, if the activities are a valid exercise of the right to self-defense or if such activities amounting to the threat or use of force is done with the authorisation of the Security Council; third, if it is not expressly prohibited by a conventional or customary international law norm.

On the other hand, for certain other States, the peaceful purposes provision in Part XI of the LOSC, connotes that all military activities in the Area are strictly prohibited.³⁸ For instance, the then Organisation for African Unity (OAU) captured this position by stressing that the Area ‘should be used exclusively for peaceful purposes [and] [a]ny utilisation of this zone for military purposes is strictly prohibited.’³⁹

Francioni, points out that a minority of scholars support the latter view. Using the analogy of certain other treaties it has been argued that there is an absolute prohibition of military activities.⁴⁰ For instance, the Antarctica Treaty 1959 in Article 1 titled – Peaceful Purposes – states that:

1. Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measure of a military nature, such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapon.

2. The present Treaty shall not prevent the use of military personnel or equipment for scientific research or for any other peaceful purpose.

Francioni points out that early negotiations in the UNCLOS III were based upon a generally prevalent view that the seabed which is the common heritage of mankind was to be completely demilitarized as it was meant to be used for peaceful purposes only.⁴¹ However, a close examination of the relatively detailed provisions of the Antarctica Treaty, in comparison with the provisions of the LOSC on peaceful purposes, would appear to indicate that the LOSC did not intend to prohibit all military activities. While the Antarctica Treaty specifically and explicitly prohibits ‘any measure of a military nature’, the provision of the LOSC does not explicitly indicate such prohibition.

Conversely, one could criticize those States and scholars that claim that certain military activities may take place in the Area for erroneously conflating the provisions on peaceful purposes in Article 88 (high seas) with that of Article 141(the Area). In doing so, they would wrongly interpret the two provisions in an identical way.⁴² First, the two provisions have different wordings, while Article 88 states that the high seas would be ‘reserved for peaceful purposes’, Article 141 states that the Area should be used ‘exclusively for peaceful purposes.’ Second, the provisions apply in essence to two different regimes having two different applicable principles: for the high seas, res communis; and for the Area, common heritage of mankind. It would be recalled that Article 141 points out that the peaceful purposes must be in line with the relevant part of the Convention. Whilst the peaceful purposes as used under Article 88 is compatible with military activities, especially with the long historical connection with such military activities and the whole notion of the freedoms of the sea, it is not so with the common heritage of mankind. The latter principle, which is a relatively recent one, is premised mainly around resource exploitation of this part of the sea, a core activity that is not necessarily reconcilable with military activities.

An interesting practical example, of the conundrums that may arise from these divergent views on the peaceful use of the Area is with regard to manned subsea ‘space station’ that could be used not only for civilian, but also for military purposes, such as surveillance through, for instance, having sensors to detect the submarines of other States.⁴³ This raises two interesting issues.

First, whether the use of such mixed-use (or hybrid) installations or structures in the Area would be regarded as military activity. Although, the question of the mixed-use of installations or structures was raised by the Philippines in its arguments in the South China Seas arbitration in relation to whether China’s island building activities fell within the ambit of military activities under Article 298(1)(b) of LOSC, the Tribunal did not directly engage with this point.⁴⁴ In this author’s view, two possible approaches may be adopted to determine this – the initial or original purpose and predominant use approaches. The former focuses on the initial or original purpose for setting up the installation or structure. If such was for civilian purpose then it could be arguably regarded as being used for non-military activities, while if such was originally constructed for a military purpose then it could perhaps be regarded as used for military activities. However, this may raise complexities when such submersible structure or installation though initially set up for civilian purposes is subsequently predominantly used for military purposes. The predominant use approach would probably be a better approach. Here the predominant and prevalent use of the installations or structures would determine whether such installation or structures should be characterized as being used for military activities or not.

Another issue is whether the use of such submersible installations or structures should be regarded as amounting to allowable military activity in the Area. Obviously, as indicated above, States that argue that the peaceful use clause does not prohibit all military activities would take the position that such non-aggressive use of the Area would amount to allowable military activity. According to Treves:

… listening and other detection or communication devices are considered more acceptable than weapons. Weapons are inherently dangerous, while detection devices are considered more acceptable than weapons. Weapons are inherently dangerous, while detection and communications devices are not. This judgement will probably have some bearings on the solution of conflicts among different uses of the seabed. It seems easier to accommodate the emplacement of detection or communication devices to other uses, such as those related to resources, than the emplacement of weapons.⁴⁵

On the other hand, those who argue that all military activities are prohibited in the Area would obviously take the view that, as long as such activity may be categorised as a military one, it is not allowable in the Area.

3.3 The Area and the Seabed Arms Control Treaty 1971

The paramount security concern in the Area is the prospect of emplacement of Nuclear Weapons and other Weapons of Mass Destruction in the seabed, ocean floor and subsoil of the Area. As far back as 1971, prior to LOSC, the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil thereof (the Seabed Arms Control Treaty) was adopted to deal with this issue.⁴⁶ This treaty, which has been described as an example of ‘superpower symbiosis’,⁴⁷ arose from a strictly Statist concern about maritime security concerning the Area. The key concern was the possibility of States, especially the big powers, utilising the Area as another venue for furthering their nuclear arms race. This concern was not far-fetched, especially since during the Cold War there was intense nuclear competition between the bipolar powers the USA and the then Union of Soviet Socialist Republics (USSR), along with their respective allies.

The Convention, which is still in force, prohibits the emplanting or emplacing of any nuclear weapons or other types of weapons of mass destruction, as well as structures, launching installations or any other facilities specifically designed for storing, testing or using such weapons on the seabed, ocean floor and the subsoil thereof beyond the outer limits of the territorial seas (which of course would include the Area).⁴⁸ The Treaty makes provision for verification through the observation by State Parties of the activities of other States Parties, provided that observation by the former does not interfere with the lawful activities of the latter.⁴⁹ If after such observations there are still doubts as to whether the obligations under the Treaty are being carried out, the State Party carrying out the observations and the other one carrying out the activities giving rise to the doubts are required to consult together with a view to removing the doubts. If, however, the uncertainty still persists, the State Party having the doubts is required to notify the other States Parties to the Treaty, who are to cooperate on further procedures for verification, as they may agree, including the appropriate inspection of objects, structures, installations or other facilities that reasonably may be expected to be in breach of Article 1 of the Treaty. The State Parties located in the region of the activities, including any coastal State, and any other Party so requesting, are also entitled to participate in such consultation and cooperation. After completion of the further procedures for verification, an appropriate report is required to be circulated to other State Parties by the Party that initiated such procedures.⁵⁰

The Treaty also makes provision for situations where the State responsible for the activities that raise doubt cannot be easily identifiable. Here, in the case of the initial step of consultations, the State having doubts is to notify and make appropriate enquiries with State Parties in the region where the activities has taken place or from any of the other State Parties. If the identity of such State responsible for the activities cannot be ascertained through these inquiries, the inquiring State Party may undertake further verification procedures, including inspection, and shall invite the participation of the State Parties in the region where the activities is taking place, including any coastal State, and any other Party desiring to cooperate.⁵¹ In the event that the consultation and verification process fails to clarify the doubt and there are still serious questions concerning the fulfilment of obligation under the treaty, the State Parties may refer the matter to the United Nations Security Council, who may take action in line with its primary responsibility to maintain peace and security under the UN Charter.⁵²

There are, however, some criticisms of the Seabed Arms Treaty. For one, although there are currently a huge number of States Parties to the Treaty,⁵³ including a number of nuclear weapons States, some known nuclear weapons States, such as France, Pakistan, Israel and North Korea, are yet to become Parties to this important Treaty framework. Another problematic area of the Convention is the escape clause whereby States Parties may withdraw from the Treaty in the following instance:

Each State Party to this Treaty shall in exercising its national sovereignty have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other States Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it considers to have jeopardized its supreme interests.⁵⁴

The ground for withdrawal is rather vague and subjective. Furthermore, the requirement that the Party which seeks to withdraw merely gives three months- notice to other States Parties and the Security Council is rather problematic. This appears to be a rather short notice period for such a significant issue as this. The 2003 withdrawal of North Korea from the Nuclear Nonproliferation Treaty, with similar provision,⁵⁵ is instructive of the challenge with this provision. Obviously, when a State Party withdraws from the Treaty it would be res inter alios acta in relation to such State. However, States who are outside the Seabed Arms Control Treaty framework could only be bound by the obligation prohibiting the emplacement or emplantment of nuclear weapons and WMD in the seabed beyond the territorial sea if it could be argued that this norm has crystallised into Customary International Law.⁵⁶

Another criticism is that the Treaty does not prohibit mobile installations such as a nuclear submarine resting at the bottom of the sea or the deployment of ‘crawlers’ and also mobile missile platform that may move along the ocean.⁵⁷ The ambiguity of the Treaty is also reflected in the reference to structures and installations ‘specifically designed for storing, testing or using’ WMD, which gives the almost absurd indication that the ban depends on its initial design and not its purpose.⁵⁸ Furthermore, the Treaty, for obvious reasons is limited to nuclear weapons, as well as other types of WMDs, but does not really ban nuclear devices to be used for ‘peaceful’ purposes.⁵⁹ It thus does not cover the possibility of nuclear disasters of a scale such as the Chernobyl and Fukushima disasters that may arise from such ‘peaceful’ use of nuclear materials in the Area, which may have environmental implications and raise issues of environmental (in) security through the actions of States.⁶⁰

What is clear, is that the Seabed Arms Treaty although it seeks to put in place some control over the use of nuclear weapons in the seabed, including the Area, does not effectively denuclearize the seabed, and neither does it create some type of nuclear weapons free zone in the Area.⁶¹ Of course, another major gap of this rather dated Seabed Control Treaty is that it does not cover non-state actors, notably terrorist groups, which this chapter would discuss further in section 4 below.

3.4 Maritime Security and Prospect of Inter-State Tensions over Mining Sites in the Area

Another key maritime security issue from a State-centric approach is the risk of inter-State tensions over maritime mining sites, which may escalate into conflicts. This threat is reduced in the case of deep seabed mining (DSM) activities due to the crucial role of the International Seabed Authority (ISA) as the intergovernmental organization vested under the LOSC to act on behalf of mankind and who is in charge of allocating mining sites in the Area.⁶²

However, a scholar had pointed out that ‘[a]lthough the International Seabed Authority has shouldered the responsibility for managing the activities on the International seabed beyond national jurisdiction, future exploration is sure to raise many jurisdictional challenges akin to fossil fuel resources, and some claims and counterclaims regarding certain areas can be expected.’⁶³ Kraska, in an interesting article on Indian Ocean Security,⁶⁴ provides the example of India’s security concerns, as regards the allocation by the ISA to China, its regional rival, (via the China Ocean Mineral Resources Research and Development Association [COMRA], a State owned entity), of mining site in the Southwest Indian Ocean for the exploration of polymetallic sulphide ore deposit.⁶⁵ He points out that this was unsettling for India and states that:

New Delhi fears it will provide China with “an excuse to operate their warships in [the] area.” The Directorate of Naval Intelligence in New Delhi warns that the seabed mining development gives China a reason to “maintain a continuous presence” in the central Indian Ocean. The Ministry of External Affairs called the Chinese seabed mining plan a “worrying development.”⁶⁶

This does indicate a potential for State to State tensions over allocation of mining sites for DSM. For instance, India in its recent Maritime Security Strategy 2015 also mentioned its DSM activities in the Indian Ocean as one of its overseas maritime investments that need to be secured.⁶⁷ Furthermore, Japan in its National Security Strategy, under the heading ‘[r]isks to Global Commons,’ which it identifies as one of its national security challenges, points out that ‘[c]ases of conflicts of interest over the sea are increasing. There is a growing risk of incidents at sea and of possible escalation into unexpected situations.’⁶⁸

4.1 Piracy against Ships and Production Support Vessels (PSVs)

A critical aspect of deep seabed mining is the use of vessels, ranging from state of the art multipurpose research vessels to Production Support Vessels (PSVs). One of the commonly indicated method of mining operations from available technology and data mining operations in the Area is the use of autonomous underwater vehicles (AUVs), which would be used to survey the seabed prior to extraction, and also remotely operated vehicles (ROVs) that play a role not only in obtaining samples of deposits, but could also be used in mining itself – passing resources extracted from the Area through a steel riser pipe (a riser lift system) to a PSV situated on the high seas.⁷⁰ It is important to note that ships and PSVs play an important role in deep seabed mining in the Area. The ITLOS Seabed Chambers in its first advisory opinion in response to questions formulated by the Council of the ISA in making a distinction between transportation that should be regarded as ‘activities in the Area’ and that which would not clearly highlights this.⁷¹ According to the Chambers:

Transportation to points on land from part of the high seas superjacent to the part of the Area in which the contractor operates cannot be included in the notion of “activities in the Area”, as it would be incompatible with the exclusion of transportation from “activities in the Area” in Annex IV, article I, paragraph I, of the Convention. However, transportation within that part of the high seas, when directly connected with extraction and lifting, should be included in activities in the Area. In the case of polymetallic nodules, this applies, for instance, to transportation between the ship or installation where the evacuation of water and the preliminary separation and disposal of material to be discarded take place. The inclusion of transportation to points on land could create an unnecessary conflict with provisions of the Convention such as those that concern navigation on the high seas.⁷²

With research ships and PSVs having to operate in the high seas to conduct deep seabed mining research or to facilitate seabed mining, as the case may be, there is the risk of piratical attacks on these vessels. The LOSC states that:⁷³

[p]iracy consists of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.

It also includes the act of voluntarily participating in the operation of a ship or aircraft with the knowledge that these are being used for acts of piracy, as mentioned in the definition above, as well as any ‘act of inciting or of intentionally facilitating an act of piracy,’ as described above.⁷⁴ Due to what is perceived as the heinous nature of piracy it is said that there is universal jurisdiction over the crime.⁷⁵ Although, in theory it is easy to discern what piracy is from the definition provided in the LOSC, in reality it may sometimes be contested. There are debatable issues that arise from the definition of piracy that scholars have engaged with.⁷⁶ However, it is unlikely, for instance, that acts of violence against a vessel engaged in deep seabed mining activities by a vessel with environmental protesters would be regarded as piracy.⁷⁷ Nonetheless, there may be other liability issues that may arise from this, such as criminal or civil damage to property or person.

Currently, there are incidents of piracy in Asia (various seas in Asia), off the coast of Somalia (Indian Ocean) and the Gulf of Guinea, off the West African Coast (Atlantic Ocean), with piratical acts involving petty theft, hijacking of vessels and kidnapping of crew in vessels, as well as well as violent acts of robbery, sometimes accompanied by resource theft.⁷⁸ These various regions have adopted instruments clearly indicating that piracy is a major maritime threat and a present maritime security concern.⁷⁹ Some of these regions, such as the Indian and Atlantic Oceans, have deep seabed mining sites.⁸⁰

A stimulating issue is whether a PSV or submersibles, such as the AUVs and ROVs, used for deep seabed mining, may be regarded as ships for the purposes of Article 101 of the LOSC? In an article on the application of maritime concepts to seabed mining, Spicer and L’Esperance, evaluated whether sea bed mining vessels and submersibles would qualify as ‘ships.’⁸¹ They indicated that a quick survey of the rather voluminous legislation and case law of certain States would appear to suggest that for an object to be a ship it must satisfy the following requirements: partial navigational use; navigational capabilities; navigation through or above water; vessel under construction and that the mode of propulsion is irrelevant.⁸² They then suggested that the PSV may satisfy many of the common elements of ships, especially when they are independently navigating between extraction sites. They were, however, rather skeptical on whether PSVs permanently moored or positioned to engage in DSM activities for extended period of time would be regarded as a ship. Further, they take the view that the status of AUVs and ROVs as ships is rather ambiguous.⁸³ This would need more clarity. If we are to accept the position of Spicer and L’Esperance on PSVs, an attack on a PSV would only be piracy when such PSV qualifies as ‘ships.’

4.2 Maritime Terrorism

Another risk to ships and PSVs engaged in DSM activities is maritime terrorism. The United Nations, as far back as 1988, had adopted The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988, and the subsequent Protocols, as one of its sectoral Conventions to counter terrorism.⁸⁴ This Convention criminalises attacks against vessels beyond the outer limits of the territorial sea of States which may involve acts such as, a person or group of persons seizing or exercising control over a ship by force or threat of such force; the committing of acts of violence against individuals on a ship or destroys such ship or causes damage to such ship or its cargo.⁸⁵ In recent times, a series of incidents occurred, such as the failed attack on USS The Sullivans in January 2000, or the successful attacks on the USS Cole in October 2000, and the French supertanker, MV Limburg in October, 2002, Superferry 14 just outside Manilla Bay in the Philippines in 2004. As a result, efforts have focused on addressing the issue of terrorist attacks on ships and installations at sea, by upgrading maritime terrorism to a major maritime security threat.⁸⁶ The possibility of such attacks against vessels engaged in DSM could therefore not be ignored.

Furthermore, especially since the 9/11 terrorist attack against the USA, there have been concerns about terrorist groups having access to nuclear weapons and other types of WMDs.⁸⁷ The Seabed Control Treaty, as mentioned above, as a State-centric treaty, does not in any way cover the possibility of non-State actors emplacing nuclear weapons or other WMD in the seabed, including the Area. Article 1(1) of the Seabed Control Treaty declares that ‘[t]he States Parties to this Treaty undertake not to emplant or emplace …’, while Article 1(2) says that ‘[t]he States Parties to this Treaty undertake not to assist, encourage or induce any State to carry out activities referred to in paragraph 1 …’, thereby effectively excluding non-State actors, such as terrorist groups from the ambit of the Convention. As a response, the United Nations Security Council resolutions, such as resolutions 1540 and 1887,⁸⁸ as well as the Convention for the Suppression of Acts of Nuclear Terrorism 2005, have sought to fill this gap.

4.3 Environmental Security

One of the key risks of deep seabed mining is the chance of it having serious adverse impacts on the marine environment. According to Greenpeace, deep seabed mining is likely to cause serious environmental damage that may destroy vital habitats and could lead to the killing of marine life, including the extinction of certain unique species, as well as potentially generating toxic sediments that could contaminate the food chain.⁸⁹ These environmental concerns have been described at various times as a ‘new Ocean threat,’⁹⁰ ‘an emerging threat to our Oceans’,⁹¹ ‘a global threat to our Oceans’,⁹² ‘a serious threat to the stability of Oceans systems and processes’⁹³ and ‘next frontier of maritime insecurity.’⁹⁴

With the protection of the environment increasingly becoming an issue foremost on the agenda of the international community, there is a growing interest in environmental security since the end of the Cold War. Although, the concept of environmental security is essentially a contested one, the academic literature is steadily engaging with the notion that there is some kind of linkage between the environment and security, and the extent to which environmental degradation may be regarded as a security threat.⁹⁵

As far back as 1990, the United Nations Secretary-General stated that: ‘ecological threats to the marine environment are also increasingly seen as a more serious threat to national security.’⁹⁶ Also, the United Nations Secretary-General High Level Panel 2004 Report on Threats, Challenge and Change identified some crucial linkages between environmental degradation and security.⁹⁷ While the linkage between environmental degradation and security may be easier to discern when such degradation arises from military activities of State actors, for instance, in the case of the Area, the possibility of a nuclear disaster as a result of military activities by nuclear submarines in the seabed, it is sometimes difficult to fathom such linkages when the degradation is caused by the activities of non-State actors. For instance, NATO in recognition of the possibility of environmental security threats arising from military activities states that: ‘the Alliance is working to reduce the environmental effects of military activities and to respond to security challenges emanating from the environment.’⁹⁸ But, even at that, the NATO, in explaining environmental security, appears to recognise that its remit, in this regard, may actually go beyond the direct impact of military activities on the environment, to engaging with certain environmental issues that may have an indirect effect on security by stating:

Based on a broad definition of security that recognizes the importance of political, economic, social and environmental factors, NATO is addressing security challenges emanating from the environment. This includes extreme weather conditions, depletion of natural resources, pollution and so on – factors that can ultimately lead to disaster, regional tensions and violence. The Alliance is looking closely at how to best address environmental risks to security in general as well as those that directly impact military activities.⁹⁹

However, more and more there has been a push to see environmental security as going beyond the limited prism of its linkage with military activities. Some scholars, such as Barnett, adopt a broader notion of environmental (in)security by linking environmental degradation with human security.¹⁰⁰ He explains environmental (in)security as follows:

Environmental insecurity is defined here as the vulnerability of people to the effects of environmental degradation. So environmental insecurity is more than the physical processes of environmental degradation; it includes the way this degradation affects the welfare of human beings … Environmental insecurity is very much about risk. In the first instance, a risk to biosphere integrity entails risks to human health.¹⁰¹

Hulme points out that the broadest definition of environmental security would include ‘man’s ability to impact the stability and viability of the biosphere.’¹⁰²

Even recently, we see that maritime security strategy instruments include the environmental issues, although the latter do not necessarily link directly to military activities, but become indirectly a vital maritime security challenge.¹⁰³ Some of these strategy instruments provisions are broadly framed to also regard environmental degradation by non-State actors in the relevant maritime zone as a maritime security threat. For instance, the European Union Maritime Strategy 2014, includes as part of maritime security risks and threats, environmental risks, which it relates to: the ‘unsustainable and unauthorized exploitation of natural and marine resources, threats to biodiversity, IUU fishing, environmental degradation due to illegal or accidental discharge, chemical, biological and nuclear pollution, in particular sea-dumped chemical munitions and unexploded ordnance.’¹⁰⁴

As a result of the possibility of serious environmental impacts due to deep seabed mining, the protection of the environment is high on the agenda of the ISA and it is taking steps to minimize and manage the environmental risks of DSM.¹⁰⁵ As an illustration, the first advisory opinion of the ITLOS Seabed Disputes Chambers on the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area was mainly devoted to engaging with the extent of sponsoring States’ obligation under LOSC 1982 for the protection of the environment as regard DSM activities by contractors sponsored by such States.¹⁰⁶ These contractors, including not only State entities, but also private commercial entities, such as Multinational Corporations.¹⁰⁷ As a matter of fact the Chambers in this advisory opinion sets the highest standards of due diligence and goes ahead to endorse a legal obligation to apply the precautionary approach, best environmental practices, and Environmental Impact Assessment (EIA).¹⁰⁸ Thus environmental security is an issue of vital concern as regard the Area.