Background Briefing: Deep Sea Mining (DSM) and Human Rights in the Pacific Prepared for 2021 BHR Program in the Pacific1
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Background Briefing: Deep Sea Mining (DSM) and Human Rights in the Pacific
Prepared for 2021 BHR Program in the Pacific1
1. What is Deep Sea Mining?
Deep Sea Mining (DSM) refers to the process of retrieving mineral deposits from the deep
ocean- the area below 200 metres. Depleting mineral deposits on land, and resistance of
local communities and Indigenous peoples to the social and environmental impacts of
mining have increased commercial interest in extracting marine mineral deposits, including
polymetallic nodules, polymetallic sulphides, and cobalt crusts. These deposits contain
metals such as manganese, nickel, cobalt and copper commonly used in technology such as
smartphones, solar panels, and electric storage batteries.
Previously, commercial focus has largely been upon mineral exploration, however there is
great concern that this exploration will soon turn to exploitation through DSM. The deep
sea remains poorly understood, making it difficult to assess the potential impacts of DSM
and to put in adequate safeguards to protect the marine environment and livelihoods of
Pacific peoples. The challenges are especially acute in areas beyond the boundaries of
nation states, with the obligations of their governments to respect, protect and fulfil human
rights.
2. Governance of Deep Sea Mining
The International Seabed Authority (ISA) is an autonomous organisation within the United
Nations common system that was established under the 1982 UN Convention on the Law of
the Sea (UNCLOS). The ISA regulates exploration for and exploitation of minerals found in
‘the Area’, referring to the sea bed and subsoil beyond the limits of national jurisdiction. The
Area comprises over 50% of the entire seabed on Earth and was designated as ‘the common
heritage of mankind’.2 Under UNCLOS, exploration for and exploitation of seabed minerals
in the Area may only be carried out under a contract with the International Seabed
Authority and subject to its rules, regulations and procedures. Contracts may be issued to
both public and private mining enterprises, provided they are sponsored by a State party to
UNCLOS and meet certain standards of technological and financial capacity. 3 Regarding
disputes, under UNCLOS, the Seabed Disputes Chamber of the International Tribunal for the
Law of the Sea has been established to have jurisdiction over disputes regarding DSM
activities.4
1
This briefing paper was prepared for DTP by DTP intern, Emily Shelley in July 2021
2
Lodge, M 2021, ‘International Seabed Authority and Deep Seabed Mining’, UN Chronicle, available at
https://www.un.org/en/chronicle/article/international-seabed-authority-and-deep-seabed-mining
3
Ibid.
4
Sun, L 2017, ‘Dispute settlement relating to deep seabed mining: A participant's perspective’, Melb. J. Int'l L.,
18, available at https://law.unimelb.edu.au/__data/assets/pdf_file/0005/2497964/04_Sun.pdfThe International Seabed Authority: The ISA is made up of 167 Member States and the
European Union. The primary policy making body of the ISA is the Assembly, comprising all
Member States that have signed UNCLOS. The Assembly sets general policies, establishes
budgets, and elects a 37-member Council, which serves as the ISA’s executive authority. The
Council has two advisory bodies, the Legal and Technical Commission (30 members) which
advises the Council on all matters relating to the exploration and exploitation of non-living
marine resources, such as polymetallic nodules, polymetallic sulphides and cobalt-rich
ferromanganese crusts, and the Finance Committee (15 members) that deals with
budgetary and related matters.5
The regulation of mining in coastal waters and within national Exclusive Economic Zones is
governed by national regulation6 and separate payment regimes, though an international
payment mechanism is imposed on coastal States for mineral exploitation on the extended
continental shelf.7
3. Where is DSM Exploration Occurring?
Since 1982, the ISA has issued 30 contracts for mineral exploration in the Pacific, Indian and
Atlantic Oceans, however most of these sites are located in the Clarion-Clipperton fracture
zone (CCZ) of the Pacific Ocean.8 Contracts have been granted to a number of private
companies by a number of small island/big ocean States including Kiribati, Nauru, Cook
Islands and Tonga. For example, The Metals Company (formerly DeepGreen) is a Canadian
firm that holds the rights to exploration contracts in Nauru, Tonga and Kiribati, and plans to
begin mining operations in the near future.9 DSM projects had also been proposed by
Nautilus company in the Bismarck Sea, Papua New Guinea, however the project has been
suspended as the PNG government supported a 10-year moratorium on DSM.10
As noted above Seabed mining will also occur within national Exclusive Economic Zones and
extended continental shelves.
4. DSM Exploitation
Although exploration contracts have been issued, the ISA is still developing the Exploitation
Regulations and was not able to meet its self-imposed deadline of July 2020, in large part
due to the Covid-19 crisis.11 At the end of June 2021, Nauru requested the ISA Council to
5
International Seabed Authority, 2021, ‘Frequently Asked Questions,’ available at
https://www.isa.org.jm/frequently-asked-questions-faqs
6
K. WILLAERT, “Crafting the perfect deep sea mining legislation: a patchwork of national laws”, Marine Policy
2020, doi: 10.1016/j.marpol.2020.104055
7
K. WILLAERT, “Payment regimes for the exploitation of mineral resources in the Area and on the extended
continental shelf: deep sea mining at a discount?”, China Oceans Law Review 2021, 43-83 and K. WILLAERT,
“The financial aspects of deep sea mining: common heritage of mankind or first-come-first-served?”, Journal of
International Maritime Law 2019, 387-395
8
Lyons, K 2021, ‘Mining’s new frontier: Pacific nations caught in the rush for deep sea riches’, The Guardian,
available at https://www.theguardian.com/world/2021/jun/23/minings-new-frontier-pacific-nations-caught-
in-the-rush-for-deep-sea-riches
9
Ibid.
10
Environmental Justice Atlas 2020, Deep Sea Mining Project Solwara 1, available at
https://ejatlas.org/conflict/deep-sea-mining-project-solwara-1-in-the-bismarck-sea-papua-new-guinea
11
https://chinadialogueocean.net/13685-covid-19-could-throw-seabed-mining-negotiations-off-track/
2complete the adoption of the rules, regulations and procedures necessary to facilitate the
approval of plans of work for exploitation in the Area within two years’ time. If they are not
completed within that timeframe and an application for exploitation activities is pending,
the Council must nonetheless consider it, but there are numerous legal uncertainties about
the consequences of the request.12
5. Concerns on Environmental Impact 13
● Habitat destruction: DSM will cause the destruction of habitat on the seafloor with
unknown environmental impacts on plant and animal life.
● Sediment plumes: Plumes of sediment and wastewater discharged from ships during
mining may spread hundreds of kilometres, prove toxic to marine life or enter the
marine food chain.
● Pollution: noise, vibrations and light pollution caused by mining equipment and
surface vessels, could upset species attuned to living in the dark, or the swimming
and schooling behaviour of fish, dolphins and whales who use noise, echolocation or
bioluminescence to communicate and escape predators. DSM also has the potential
for spills of fuel or toxic substances. The location of DSM increases the challenges of
regulatory oversight - including responses and accountability for pollution.
An article by the Harvard Environmental Law Review has recorded that the exploratory
phase of DSM has already resulted in environmental disturbances. Prospective vessels have
created disturbances to traditional fishing grounds in Tonga, and PNG villagers adjacent to
the Bismarck sea have reported high incidences of dead fish washed onto beaches.14
6. Concerns for Human Rights
● Right to Life, health, food and an Adequate Standard of Living: Risks to local
fisheries industries: DSM pollution and mine waste may adversely impact upon
fishing and seafood harvesting industries across the Pacific, putting livelihoods of
local communities at risk. Impacts may extend beyond coastal communities to wider
impacts as well to ecosystem services such as fisheries, climate regulation,
detoxification and nutrient cycling that could have wider implications for food
security.15
12
K. Willaert “Under Pressure: The Impact of Invoking the Two Year Rule within the Context of Deep Sea
Mining in the Area.” The International Journal of Marine and Coastal Law 36 (20 21) 1–9
13
World Wildlife Fund 2021, No Deep seabed mining, available at
https://wwf.panda.org/discover/our_focus/oceans_practice/no_deep_seabed_mining/
14
Business and Human Rights Resource Centre 2018, Pacific: Adverse impacts of deep-sea mining, including on
rights of indigenous people, are possibly as harmful as land mining, says Harvard paper, available at
https://www.business-humanrights.org/en/latest-news/pacific-adverse-impacts-of-deep-sea-mining-
including-on-rights-of-indigenous-people-are-possibly-as-harmful-as-land-mining-says-harvard-paper/
15
The UK Subsea Mining Capability Statement April 2017, notes that, “The activities involved in subsea mining
could have detrimental impacts on localised populations as well as an impact on world oceans through the
potential extinction of unique species which form the first rung of the food chain.”
3● Access to information, participation and remedy: The existing prospecting and
exploration regulations promulgated by ISA do not include any public participation
procedures. The draft Exploitation Regulations contain some improvements in
providing further access to information and participation. Deep Sea Conservation
Coalition, a coalition of over 90 civil society organisations, views the ISA’s
consultation processes as insufficient to establish the establish Free, Prior and
Informed Consent (FPIC) of Indigenous communities.16 The draft Exploitation
Regulations do not permit third party stakeholders, including those representing
environmental interests and the interests of local communities in the process of
engaging on specific licensing processes to contest final decisions on contracting. In
other words, there is no access to remedy for decision-making to challenge the
approval of a plan of work or an existing contract.17 In addition, there are legitimate
concerns about difficulties in monitoring and legal liability. How can companies be
held responsible when harms are done? Which states bear primary responsibility?
There are concerns about the limited capacity of small island states to monitor
companies and ensure accountability work.18
● Cultural rights: For many coastal communities, there is a deep cultural connection to
the seas, with cultural or spiritual value associated with a pristine ocean, or
traditional sense of ownership of or identification with the ocean and its resources
that could be affected. This is an additional argument for incorporating the concept
of free, prior and informed consent (FPIC), into licensing processes.19
● Rule of law: Numerous actors have highlighted concerns about the governance
arrangements within the ISA20 including about lack of transparency and participation
in its main decision-making body, which remain closed, despite a Decision from the
Assembly, the supreme organ,21 about the potential formal conflicts of interest and
informal conflicts of interest in the state sponsorship requirements for companies
seeking licenses. There is little information in the public domain regarding the
contractual arrangements and regulatory measures established by states in relation
to ISA contractors whom they sponsor.22
16
World Economic Forum, 2021, Briefing Paper on Deep-Sea Mining, available at
http://www3.weforum.org/docs/WEF_Deep_Sea_Minerals_2021.pdf
17
K. WILLAERT, “Public participation in the context of deep sea mining: luxury or legal obligation?”, Ocean &
Coastal Management 2020, doi: 10.1016/j.ocecoaman.2020.105368.
18
Lyons, K 2021, ‘Mining’s new frontier: Pacific nations caught in the rush for deep sea riches’, The Guardian,
available at https://www.theguardian.com/world/2021/jun/23/minings-new-frontier-pacific-nations-caught-
in-the-rush-for-deep-sea-riches
19
Aguon and Hunter, (2018) “Second Wave Due Diligence: The Case for Incorporating Free, Prior, and
Informed Consent into the Deep Sea Mining Regulatory Regime,” STANFORD ENVIRONMENTAL LAW JOURNAL
[Vol. 38:3]
20
See for example, Christiansen, S., Ginzky, H., Singh P. Thiele T. (2018): The International Seabed – The
Common Heritage of Mankind, IASS Policy Brief, July 2018.
https://www.umweltbundesamt.de/sites/default/files/medien/2875/dokumente/chm_policy_brief.pdf. K.
WILLAERT, “Institutional troubles within the ISA: the growing politicization of the LTC”, Journal of International
Maritime Law 2020, 60-73.
21
ISBA/23/A/13, 2017, G4 ISBA/23/A/13, 2017, G4
22
Lily, H. Sponsoring State Approaches to Liability Regimes for Environmental Damage Caused by Seabed
Mining (Centre for International Governance Innovation, The Commonwealth
47. Opposition to DSM Growing:
7.1 Community Opposition in Pacific
● Alliance of Solwara Warriors: representing Indigenous communities in Bismark and
Solomon Seas of PNG have organised resistance against DSM, launching a legal case
against the Solwara 1 project.23
● Pacific Islands Association of NGOs (PIANGO) the Pacific Conference of Churches
(PCC), World Wide Fund for Nature (WWF), and the Development Alternatives with
Women for a new era (DAWN) launched a collective statement calling for a Global
Ban on Deep Sea Mining on March 25th 2021.24
7.2 Governments calling for Moratorium
● Pacific Island Leaders Moratoriums: The Pacific Island Leaders Forum in Tuvalu in
2019 called for a 10 year moratorium of DSM.
● The PNG Government announced a moratorium on DSM bringing an end to the
Nautilus plans for the Bismark and Solomon Seas
7.3 Global Corporations Join Calls for Moratorium
● In response to concerns raised by WWF and others, a number of automobile and
technology companies have pledged their support for a global moratorium on DSM,
including BMW, Samsung, Google, and Volvo Group. The signatories pledge to not
source or use any deep sea minerals in their supply chains, and not to finance DSM
activities.25
Other actors
● The UN Special Envoy for the Ocean, Peter Thomsen, who was himself the former
head of the ISA, has called for using the 2021–2030 UN Decade of Ocean Science for
Sustainable Development.
● Sir David Attenborough has called for ban on deep seabed mining.26
● The High Level Panel on a Sustainable Ocean Economy Blue Paper on deep seabed
mining noted that a full analysis – fuller than has been done to date - of the
perceived positive and negative impacts is required before there can be confidence
23
Jonathan Mesulam, 2020, ‘If we allow seabed mining, everyone is at risk’, CIVICUS, available at
https://www.civicus.org/index.php/media-resources/news/interviews/4275-papua-new-guinea-if-we-allow-
seabed-mining-then-we-may-just-call-for-the-end-of-humanity
24
PIANGO 2021, The Pacific Draws the Blue Line, available at http://www.piango.org/our-news-events/latest-
news/the-pacific-draws-the-blue-line/
25
WWF 2021, ‘Brand Back Call for Moratorium on Deep Seabed Mining’, available at
https://wwf.panda.org/wwf_news/press_releases/?1909966/Brands-Back-Call-for-Moratorium-on-Deep-
Seabed-Mining
26
The Guardian (21 March 2020) David Attenborough calls for ban on 'devastating' deep sea mining
5that engaging in industrial-scale deep-seabed mining would achieve a global net
benefit. 27 28
8. DSM Campaigns and Calls to Action
● Alliance of Solwara Warriors:
https://www.facebook.com/pages/category/Community/Alliance-of-Solwara-
Warriors-234267050262483/
○ Alliance of communities in the Bismarck and Solomon Seas who stand to Ban
Seabed Mining in PNG and the Pacific.
● Pacific Blue Line Statement: https://www.pacificblueline.org/pacific-blue-line-
statement
○ Joint statement by Pacific civil society groups including PIANGO, Pacific
Conference of Churches calling for a global ban on DSM
● Deep Sea Conservation Coalition: http://www.savethehighseas.org/
○ Founded in 2004, a coalition of more thant 80 NGOS, fishers organisations
and law policy institutes worldwide aiming to protect vulnerable deep-sea
ecosystems
● WWF No Deep Seabed Mining Campaign:
https://wwf.panda.org/discover/our_focus/oceans_practice/no_deep_seabed_mini
ng/
○ Calls for a global moratorium on DSM
● Sustainable Ocean Alliance's deep seabed mining campaign:
https://www.soalliance.org/soa-campaign-against-seabed-mining
o Position: https://www.soalliance.org/soa-campaign-against-seabed-
mining#ourposition
o Campaign toolkit: https://www.soalliance.org/soa-campaign-against-seabed-
mining#campaigntoolkit
● The Ocean Foundation Deep Sea Mining Campaign:
http://www.deepseaminingoutofourdepth.org/
9. The Global Framework on Climate Change, Nationally Determined Contributions
(NDCs) and the ISA
The pressures for DSM are likely to grow as shifts towards renewable energy may increase
demand for certain minerals found in the deep sea. How the ISA can incorporate the
commitments of states to reduce carbon emissions (NDCs), and their commitments on
biodiversity into their governance and regulatory regime is coming under scrutiny.
27
Haugan, P.M., L.A. Levin, D. Amon, M. Hemer, H. Lily and F.G. Nielsen. 2019. What Role for Ocean-Based
Renewable Energy and Deep Seabed Minerals in a Sustainable Future? Washington, DC: World Resources
Institute.
28
www.oceanpanel.org/blue-papers/ocean-energy-and-mineral-sources
6"The International Seabed Authority has an opportunity now, as it negotiates the rules for
mining beyond national jurisdiction to:
(a) factor predicted and actual climate variations into its management regime so as
properly to understand cumulative impacts, and to manage the predicted adverse
effects on biodiversity or ecosystem services caused by mining and other activities
(b) set restrictions on the carbon emitted during at-sea mining operations and
account for the real carbon cost of the full industrial chain including transport and
treatment"
https://www4.unfccc.int/sites/SubmissionsStaging/Documents/202003301548---
DOSI_DOOS%20contribution%20to%20UNFCCC%20SBSTA%20final.pdf
10. Further reading and resources
● UN Overview of Pacific Deep Sea Mining Activity
○ https://www.un.org/en/chronicle/article/international-seabed-authority-
and-deep-seabed-mining
● World Economic Forum Briefing Paper on Deep-Sea Mining: OECD Due Diligence
Guidelines, Rights of Indigenous Peoples, Biodiversity Impacts, UNCLOS laws
designating the international seabed as the ‘common heritage of mankind’
○ http://www3.weforum.org/docs/WEF_Deep_Sea_Minerals_2021.pdf
● BERNAZ, N., & PIETROPAOLI, I. (2020). Developing a Business and Human Rights
Treaty: Lessons from the Deep Seabed Mining Regime Under the United Nations
Convention on the Law of the Sea. Business and Human Rights Journal, 5(2), 200-
220. doi:10.1017/bhj.2020.7
○ https://www.cambridge.org/core/journals/business-and-human-rights-
journal/article/abs/developing-a-business-and-human-rights-treaty-lessons-
from-the-deep-seabed-mining-regime-under-the-united-nations-convention-
on-the-law-of-the-sea/9D8D5F06A4768AFB399903AE6134C159
● Interview with Alliance of Solwara Warriors
o https://www.civicus.org/index.php/media-resources/news/interviews/4275-
papua-new-guinea-if-we-allow-seabed-mining-then-we-may-just-call-for-the-
end-of-humanity
● Impact of COVID-19 on Deep Sea Mining
○ https://theconversation.com/covid-19-made-deep-sea-mining-more-
tempting-for-some-pacific-islands-this-could-be-a-problem-158550
7● DOSI, The necessity of traditional knowledge for management of deep-seabed
mining, Lisa Levin, Elva Escobar, Klaas Willaert (UGent) , Phillip Turner, Bleuenn
Guilloux, Kerry Howell, Daniel Jones, Cresantia Koyavakauta, Clement Yow Mulalap,
Pradeep Singh, et al. (2021) In DOSI Policy Briefs
● See from Klaus Willaert: https://biblio.ugent.be/person/802001635902
○ An association of NGOs and citizens from Australia, Papua New Guinea and
Canada concerned about the likely impact of DSM on marine and coastal
ecosystems and communities.
○ The goal of the campaign is to develop an active, broad-based and informed
Civil Society response to Deep Sea Mining in the Pacific region. In particular,
the aim is to achieve Free Prior and Informed Consent (FPIC) from affected
communities and the application of the precautionary principle in decision-
making about DSM.
8You can also read
