2023: Global governance for the seabed sinks further still
2023: Global governance for The
seabed sinks further still
WRITTEN BY DRAKE LONG
7 February 2023
Last year was the 40th anniversary of the United Nations Convention on the Law of the Sea (UNCLOS). The anniversary saw major events affecting ocean health and the maritime economy, including the first test extraction of rare earth metals from international waters in over three decades. It was, in many respects, a banner year for the growing exploitation of marine areas farther and farther from the shoreline.
But 2022 also presents a case study on how environmental concerns cannot be ignored forever. Although the international community failed (despite much initial hope) to craft a treaty that would conserve international waters, and though the regulatory body responsible for protecting the international seabed appeared to side with profits over conservation, the year ended with environmentalists securing one big win: broad-based state support for their cause.
From Europe all the way to the edge of the Pacific, governments are beginning to take note that, in the absence of global governance, commercial interests will take advantage of this void. This realisation may be too little too late, but the momentum from last year will carry the policy debate around the international seabed into 2023.
The High Seas Treaty: Kicking the can yet again
Ultimately, to seabed conservationists, prospectors, and enthusiasts alike, 2022 ended as somewhat of a mixed bag. The chief disappointment was the UN Intergovernmental Conference’s failure to pass a ‘High Seas Treaty’ that would comprehensively protect marine life in areas outside of any country’s maritime borders.
Despite marathon negotiations at the fifth session of the Conference in August, no High Seas Treaty emerged that all countries could agree on. The Treaty would have solved some of the unfinished business of the original UNCLOS, namely by setting boundaries on what kind of economic exploitation can happen in the deep ocean.
The ground laid in 2022 will ensure that state-backed exploration of seabed mining will continue, and 2023 may see the first steps taken towards commercial-scale exploitation of the seabed.
Both issues have grown in importance since 1982. At the Third Conference on the Law of the Sea, concerns about how to regulate activity in the deep sea could be left for future generations to handle, solely because the exploitation of the seabed was unfeasible for virtually all countries. The basic rules for activity on the seabed were thus left up to two new international bodies, called the International Seabed Authority (ISA) and the Commission on the Limits of the Continental Shelf.
In the 40 years since, technology has changed considerably, and the scientific community can now claim with confidence to have mapped out a quarter of the seabed. With greater knowledge of deep-sea geography, states and private companies have gained greater means to exploit it. Marine genetic resources, useful for pharmaceutical research, and rare earth metals lodged in the seabed are all suddenly within reach.
Acknowledging the need to put some guardrails on seabed activity, the Intergovernmental Conference first started negotiating the High Seas Treaty in 2017, and the International Seabed Authority began drafting a ‘Mining Code’ that would lay out comprehensive regulations on mining activity in the high seas.
In 2022, both of these efforts fell short. The aforementioned High Seas Treaty will have to be further negotiated this year, with many of its important provisions still not to all states’ satisfaction. Chiefly, the areas of disagreement in the draft text appear to be the articles related to sharing the benefits of marine genetic resources in international waters equitably.
This has been a thorny issue since the UNCLOS was originally signed and revolves around more than simply splitting revenue. At the UN Ocean Conference last year, a coalition of island nations urged wealthier states to transfer technology necessary for marine exploration and exploitation to less developed countries. This would go far in making access to the marine economy more equitable, but it is a tough pill for many governments to swallow.
The rise and fall of seabed mining
For the ISA, it did not technically fail to draft a Mining Code — the in-progress text is online — so much as it appears to have run out of time. The small Pacific Island nation of Nauru submitted a letter of intent to begin seabed mining in international waters in 2021, which now forces the ISA (under its own rules) to produce a finalised Mining Code by 2023 or allow mining activity to begin without one. As of January 2023, a comprehensive Mining Code still appears to be far off.
The seabed mining industry secured its next big win in 2022 by launching an unheard-of test extraction in the Clarion Clipperton Zone, an area of the Pacific rich in rare earth metals that is under the ISA’s jurisdiction.
In September 2022, the ISA announced that there would be a ‘pilot test’ for extracting rare earth metal nodules in the Clarion Clipperton Zone that same month. This shocked much of the international community given the test date would be on such short notice and there was little inkling of it beforehand. The test would be conducted by The Metals Company (TMC), a small company akin to a proof of concept for commercial-scale seabed mining rather than a company capable of commercial-scale extraction on its own. The rare earth metals in question included manganese, nickel, and cobalt — all of which are vital components for products such as lithium batteries.
It was later revealed that the ISA had somewhat ignobly colluded with The Metals Company. According to the New York Times, the ISA provided data to TMC on where the most fruitful areas for prospecting in the Clipperton Zone were in advance of that data going public. Conservationists were especially galled at the TMC’s sub-standard environmental impact assessment. Nonetheless, seabed mining advocates were dealt their own setbacks at the tail-end of 2022.
While the test was technically a success — the drillship modified for the endeavour hauled up the largest extraction of its kind to date — TMC (and its Nauru-based subsidiary, NORI) may not last long enough to relish in it. TMC’s stock is plummeting and the company is under threat of being delisted from major stock exchanges.
This is largely because of the momentum growing for a seabed mining moratorium, which would pause any mining activity in international waters. Pressure has been increasing since Palau first announced it was leading a coalition of countries in favour of such a ban at the UN Ocean Conference in June last year. Now the number of countries urging a ban includes most Pacific Island countries, France, New Zealand, and Germany. All of them have members in the ISA’s Legal and Technical Commission responsible for setting regulations on the activity and some are using their influence to push for rigorous environmental regulations.
Last year may have actually been the death knell for the private sector’s seabed mining ambitions. Notably, part of what spurred the mining moratorium movement onward was the recent torrent of research on the devastating impacts of seabed mining.
The scientific community has always assumed that economic activity would have an impact on the deep sea. The deepest parts of the ocean contain some of the most isolated and fragile ecosystems on the planet. Exposing them to any sort of activity outside of the norm has devastating effects on ecosystem health and the health of living creatures on the ocean floor.
Research now shows that the byproducts from mining the seafloor can spread and smother habitats thousands of kilometres away from the actual mining site. Some of the polymetallic nodules that seabed mining harvests are actually part of the ecosystem itself, anchoring wildlife. The noise pollution alone from seabed mining is speculated to have cascading effects on deep sea creatures.
Exacerbating this is the always-relevant outcry that most deep sea creatures have yet to even be discovered. Entire habitats could be destroyed by reckless exploitation, and the surface world would not realise what was being harmed until it was too late.
Deep sea ambitions still afloat
In short, the notion of an environmentally conscious Mining Code was struck down hard this past year. It is increasingly clear that there may be no way to actually minimise the environmental damage from seabed mining without making commercial exploitation completely unprofitable.
But this does not mean the practice itself will stop. On the contrary, the ground laid in 2022 will ensure that state-backed exploration of seabed mining will continue, and 2023 may see the first steps taken towards commercial-scale exploitation of the seabed.
Now that TMC has done the proof-of-concept work, the allure of commercial extraction will only grow for certain countries willing to plunge state funds into the practice. This was probably always where seabed mining as an industry was headed. The astronomical cost and political sensitivity of it make state backing a necessity.
Whereas 2022 complicated efforts for the economic exploitation of international waters, each country is still entitled to its own ‘continental shelf’. This comprises the ocean floor in excess of 200 nautical miles off their coastline. Under the UNCLOS, countries enjoy economic rights, akin to de facto sovereignty, over these vast swathes of the seabed, and there is little to no enforceable moratorium to be placed on that.
Accordingly, in 2023, the focus on seabed mining will simply shift back to waters closer to home. Japan has already announced its intention to extract rare earth metals from its continental shelf at a commercial scale starting in 2024, establishing itself as a clear first-mover in the industry.
China, another forerunner in seabed exploitation, has been researching and testing the best methods of extracting economic value from its claimed continental shelf in the South China Sea for over two years and is likely to continue in the coming years.
The Philippines announced it was exploring its own seabed mining policy in 2022, placing it alongside other countries, including the United Kingdom and India, in crafting explicit national strategies on deep-sea resources. The policy space around the seabed looks set to grow exponentially in the new year.
DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.
Author biography
Drake Long is currently writing a book on seabed policy and maritime disputes for MCUPress. He is a Young Leader for the Pacific Forum and a 2023 cohort member of Foreign Policy for America’s NextGen Initiative. Image credit: Flickr/NOAA Ocean Exploration.