Strengthening Environmental Impact Assessment Obligations of Deep Seabed Mining in Areas beyond National Jurisdiction

Fifty-two years since the 1972 Declaration of the United Nations Conference on the Human Environmen t, deep seabed mining in areas beyond national jurisdiction remains controversial and widely discussed. In times of global demand for metals that are necessary to ensure energy transition and achieving a low-carbon societ y, the matter is becoming more convoluted. It is unclear if and what States will agree on as a common approach to deep seabed minin g, or what relevance will be given to scientific evidence regarding any serious and irreparable harm to the marine environment it cause s. This article examines the matter from a multidisciplinary approach and proposes that the new implementing agreement of the United Nations on the Law of the Sea on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction offers an opportunity for strengthening environmental impact assessment obligations of deep seabed mining in these area s


The Need for Deep Sea Minerals
The global demand for metals has increased substantially over recent decades.The need for economic growth to maintain the living standards of a rising human population is driving demand for the Earth's non-renewable resources.Environmental issues associated with extraction of minerals are receiving greater attention throughout the world and the deep-ocean is increasingly being explored as a resource for metals.While deep sea mineral deposits will not replace land-based mining, they may offer an additional source of metals to meet increasing demand derived from population growth and movement towards green technologies and a lower-carbon society.1The rapid advancement of scientific ocean observation, marine science, and resource exploration and exploitation technologies means that our understanding of the natural capital and ecosystem services of the marine environment is increasing.It is essential to identify and measure potential impacts to the ocean to ensure impacts are minimised and mitigated as far as possible.
Deep sea metallic mineral deposits are located across large areas of the deep seafloor in distinct geological and marine environments.Three types of metallic deep sea mineral deposits are currently viewed by some as a potential new source for the diversification and security of metals essential to the global economy: sea-floor massive sulphide deposits containing locally high concentrations of copper, lead, and zinc, plus significant amounts of gold and silver; polymetallic manganese nodules; and cobalt-rich ferromanganese crusts with notable concentrations of nickel, copper, and cobalt, and significant concentrations of rare-earth elements and other rare metals.
Shallow marine mining activities have been underway for decades whereas deep sea mining activities are still in the exploration phase, collecting baseline data and developing environmental impact assessments (EIA).Several countries, Papua New Guinea, Saudi Arabia, Japan, Norway, Brazil, and Southwest Pacific Nations are exploring their exclusive economic zones (EEZ).Papua New Guinea and Saudi Arabia have issued mining licenses for areas within their EEZ s.Japan has conducted the world's first pilot test of excavating and ore lifting for seafloor polymetallic sulphides located at 1600 metres below sea level.
For mineral resources on the seabed and beyond EEZ s and the extended continental shelves of coastal States, that is, areas beyond national jurisdiction (ABNJ), referred to as the Area, the International Seabed Authority (ISA) was established by the United Nations Convention on the Law of the Sea (LOSC).2It is an intergovernmental body mandated with organising, regulating, and controlling mineral-related activities.3As of early 2024, the ISA has approved thirty-one contracts of fifteen-year duration for mineral exploration in the Area, either to national governments or commercial companies sponsored by governments.With regards to exploitation of mineral resources, the ISA Regulations on Exploitation of Mineral Resources in the Area were released in 2018 with the aim of gaining final approval by the ISA Council and Assembly in 2020.However, on 29 March 2024 the Council announced 'significant progress in the ongoing negotiations of the draft exploitation regulations for mineral resources in the international seabed area' ,4 which are still to be approved.To date no exploitation of minerals has taken place within the Area.
Concurrent to this increased interest in deep sea mineral resources, scientists and non-governmental organisations have raised concerns about the lack of a regulatory framework, maps, detailed environmental baseline studies, and limited knowledge of the potential environmental impacts of deep seabed mining,5 particularly as the deep seabed is vastly underexplored as a result of the costs and inherent technological challenges associated with exploring the deep ocean.During recent years several international projects have indicated 10.1163/15718085-bja10174 | Becker-Weinberg and Shimmield The International Journal of Marine and Coastal Law (2024) 1-13 that deep seabed mining is not possible without also causing environmental impact.6

Legal Background to Deep Seabed Mining in ABNJ
The 1972 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) expressly recognised the intergenerational responsibility to protect the environment (Principle 1), that nonrenewable resources must be employed in such a way as to guard against the danger of their future exhaustion and to ensure that benefits from such employment are shared by all (Principle 5), that States shall take all possible steps to prevent marine pollution (Principle 7), and that States have the sovereign right to exploit their own resources pursuant to their own environmental policies, as well as the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction (Principle 21).7 At the same time, deep seabed mining in ABNJ was a prominent issue during the negotiations of the LOSC.8Then, States were focused on the immense potential of the deep seabed and ensuring that all States should benefit from the development of the mineral resources found therein, rather than only those that had or could acquire the know-how and the technological capability to that effect.9This perception acknowledged the interest of mankind in the seabed and ocean floor and that its exploitation and use should be conducted in view of maintaining international peace and security and for the benefit of all mankind, taking into account the special interests and needs of developing countries.10The United Nations further envisaged international cooperation and coordination for the peaceful exploitation and use of the seabed and ocean floor.11As a result, the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction was established for the purpose of, inter alia, studying the legal principles and norms that could promote international cooperation in the exploration and use of the seabed and ocean floor and to ensure that their resources would be exploited for the benefit of mankind.12However, the reduction of the common heritage of mankind to only include the exploration and exploitation of mineral resources of the Area13 may be considered a significant limitation of the scope of the concept and of the said notion, which at the time also considered living resources.14 Long before the LOSC, the International Law Commission had also recognised the possible conflict between the exploration and exploitation of the seabed and subsoil and the freedom of the seas, although concluded that this was not 'a sufficient reason for obstructing a development which … can be to the benefit of mankind' .In this respect, the ILC considered that, '[t]he necessary steps must be taken to ensure that this development affects the freedom of the seas no more than is absolutely unavoidable, since that freedom is of paramount importance to the international community' .15 As a result, the LOSC determines that activities in the Area shall be carried out 'to foster healthy development of the world economy and balanced growth of international trade, and to promote international cooperation for the over-all development of all countries, especially developing States' .16Furthermore, certain rules envisaged in Part XII of the LOSC reflect some of the principles included in the Stockholm Declaration.
The Area regime further provides that resources shall be orderly, safely, and rationally managed in accordance with sound principles of conservation and the avoidance of unnecessary waste, and to ensure supply to consumers, the promotion of just and stable prices and of long-term equilibrium between supply and demand, and the conditions of access to markets for the imports of minerals produced from the resources of the Area and for imports of commodities produced from such minerals.17The LOSC establishes that there should be reasonable and reciprocal regard between the activities in the Area and other activities in the marine environment.18 Fast forward to 2023 and the recently adopted text of the new and third implementing agreement of the LOSC,19 this time on the conservation and sustainable use of marine biodiversity in ABNJ, and perceptions regarding deep seabed mining in ABNJ have changed dramatically.This is mostly a result of the growing awareness that its impacts are not fully known and could have a devastating and irreversible effect on the marine environment.

Strengthening Environmental Impact Assessment Obligations
The International Journal of Marine and Coastal Law (2024) 1-13

Impacts of Deep Seabed Mining
The marine environment is complex, and a number of components need to be measured and understood before any assessment of possible impact of deep-sea marine mining is made.A comprehensive understanding of the dynamic regime of any site is required.Impacts based on physical oceanography, geology, geochemistry, habitat characteristics, benthic and epibenthic fauna and flora, and the animals that feed on those organisms or transit the area, must be considered.Amongst the many unknowns associated with deep seabed mining are physical effects which include impacts from sediment plumes,20 habitat alteration or removal, dilution of organic matter,21 and noise and light.Chemical effects such as increased concentration of suspended particulate matter,22 changes in biogeochemical cycling,23 particle plume impacts,24 benthic sediment disturbance, and waste streams also need to be assessed.Ecotoxicity, toxicity due to exposure to chemical contaminants, including metals, which may occur when an organism cannot cope with the adsorption or uptake rate of a contaminant from water, sediment or food source via dissolved material or ingestion, is another important factor.25The biological field is larger and harder to describe than the physical and geological fields and impacts on ecosystem function and services will also need to be assessed.
The removal of seafloor sediments will have a significant impact due to the removal of relatively organically enriched sediment from the seafloor and the generation of sediment plumes.Plume impacts will depend on type of substrate, depth and intensity of excavation, type of mining technology utilised, frequency of mining, amount of sediment extracted, ocean currents, and the water depth at the mining site.The sediment plumes will redeposit sediment on the seafloor at higher sedimentation rates than is naturally experienced in a specific area.
Data acquired over many decades and from test mining of the deep ocean seabed suggests the impacts of deep-sea mining are likely to be long term.Limited disturbance experiments conducted in the Clarion-Clipperton Zone (CCZ) have revealed that microorganism abundance, biomass, and activities did not recover following disturbance that occurred four decades previously.26Nodule mining will remove hard substrate that will take millions of years to re-form.Approximately 50 per cent of the megafauna in the CCZ live on nodules,27 which suggests that the fauna colonising polymetallic nodules may not recover for at least several decades.Mining of the seafloor on seamounts

Strengthening Environmental Impact Assessment Obligations
The International Journal of Marine and Coastal Law (2024) 1-13 will significantly alter habitat complexity and therefore have a significant effect on benthic community structure as demonstrated by research that found that community structure on hard-substrates found on seamounts off the coast of New Zealand significantly correlated to 3D-habitat complexity, seafloor curvature, and depth.
To assess impacts according to an ecosystem and services approach,28 the combined pressures of future mining, from coastal to international waters, needs to be considered.This includes vessel deployment, seabed excavation, plume dispersal, ore retrieval, vessel loading and transport, mineral processing, and effluent discharge.Until now, impacts from seabed mining have been investigated in separate disciplines and in different parts of the ocean, although more recent research such as the SMARTEX29 project attempts to provide a holistic approach to investigating impacts of deep-sea mining.There are no forward-looking assessments of cumulative impacts available considering the levels of activity anticipated by the deep-sea mining industry.However, various strategies to assess and manage risk have been suggested.30 The need for cumulative assessments related to increasing shallow mining activities has been identified,31 and it is recognised that there is a need to take a precautionary approach to mining the seafloor in line with the LOSC, which sets forth the environmental obligation to ensure effective protection from harmful effects of seabed mining, with the legal obligation to avoid serious harm.

Protection of the Marine Environment in ABNJ
International law applicable to the protection and preservation of the marine environment is profoundly fragmented, which has led to institutional fragmentation, with regional and multilateral organisations limited by their own mandates.Fragmentation has also resulted in many regional and multilateral efforts evidencing the prevalence of compromise between different interests, namely, sectorial.Unfortunately, too often, certain activities have prevailed instead of being restricted or banned altogether when reconciliation with the protection and preservation of the marine environment is not possible.This has inevitably prevented a more robust and effective integrated management of ecosystems and the adoption of a holistic approach with respect to ocean governance.32 The LOSC, similar to the Stockholm Declaration, embodies the notion that the obligation to protect and preserve the marine environment is connected with States' exercise of sovereignty and jurisdiction.This obligation is applicable in ABNJ, namely, the Area33 and the high seas, where all States have a clearly recognisable interest in the protection and preservation of the marine environment and an obligation to ensure its protection and preservation.34Pursuant to Article 192 of the LOSC, all States have the obligation to protect and preserve the marine environment, including in disputed maritime areas, without any distinction between coastal or landlocked States, or those that are parties to the LOSC.
The LOSC connected the obligation to protect and preserve the marine environment with the utilisation of marine resources in areas within national jurisdiction.35Likewise, in ABNJ, particularly regarding the exploration and 32 There have been calls for international rules to be reinforced in order to strengthen ocean governance.This includes, for example, the proposal for the consolidation in one instrument of principles that have developed since the LOSC, see exploitation of the resources of the Area, the Convention stipulates that necessary measures shall be taken to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area.36Specifically, the LOSC establishes that it is the competence of the Legal and Technical Commission of the ISA to prepare assessments of the environmental implications of activities in the Area and make recommendations to the Council on the protection of the marine environment, taking into account the views of recognised experts.37 Notwithstanding that the LOSC does not expressly refer to EIA, conducting EIA has been considered a general obligation under customary international law whenever there is a risk that a proposed activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource.38Specifically, the Seabed Disputes Chamber considered that carrying out an EIA was a direct obligation under the LOSC and a general obligation under customary international law and, consequently, 'should be included in the system of consultations and prior notifications set out in article 142' .39As a result, coastal States and the ISA must exchange information regarding mineral resources that may be found to straddle the demarcation line between the continental shelf and the Area, as well as adopt restraint regarding any action that may potentially cause harm to their legitimate interests.
EIA figured prominently in the negotiation of the new implementing agreement to the LOSC, the BBNJ Agreement, and is included in the legal text.40However, reconciling the EIA obligation as applied to the Area and the enhanced EIA regime included in the BBNJ Agreement may present some challenges for the holistic protection and preservation of the marine environment in ABNJ.Indeed, attention has been drawn to the fact that the ISA does not require basic modern EIA for activities in the Area.Moreover, draft regulations do not provide the ISA with the necessary tools to ensure the effective 10.1163/15718085-bja10174 | Becker-Weinberg and Shimmield The International Journal of Marine and Coastal Law (2024) 1-13 10.1163/15718085-bja10174 | Becker-Weinberg and Shimmield The International Journal of Marine and Coastal Law (2024) 1-13 Internationalisierung staatsfreier Räume: Die Entwicklung einer internationalen Verwaltung für Antarktis, Weltraum, Hohe See und Meeresboden (Springer, Berlin, 1984) 331-396; 'The principle of the common heritage of mankind' (1983) 43 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 312-337.sion, without any indication of criteria or hierarchy that ought to be followed in case of conflict.Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, UN Doc A/CONF.232/2023/4*(19 June 2023, not in force) [BBNJ 11 Examination of the Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of Mankind, UNGA Resolution 2340 (XXII) (18 December 1967).12Examination of the Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of Mankind, UNGA Resolution 2467 (XXIII) (21 December 1968).13Article7 of the new implementing agreement, the BBNJ Agreement, acknowledges the applicability of the principle of common of heritage of mankind, although without the predominance that this principle enjoys with respect to the Area and its resources.This means that interpretation and applicability of this principle in the context of marine biodiversity in ABNJ will not be a straightforward matter, seeing that, for example, the BBNJ Agreement enumerates other potentially conflicting principles in the same provi-Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of Mankind, UNGA Resolution 2574 (XXIV) (15 December 1969), Section D. Downloaded from Brill.com 09/07/2024 05:12:44AM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/10.1163/15718085-bja10174 | Becker-Weinberg and Shimmield The International Journal of Marine and Coastal Law (2024) 1-13