Broadening Common Heritage: Addressing Gaps in the Deep Sea Mining Regulatory Regime

By Julie Hunter, Pradeep Singh, & Julian Aguon*

With recent technological advances and growing demand for minerals used in consumer electronics, deep sea mining (“DSM”) appears poised to become the next frontier in resource extraction. Hailed as the new global gold rush,[1] DSM entails harvesting mineral deposits in the deep sea (approximately 400 to 6,000 meters below sea level)[2] for use in emerging and high technology, among other sectors.[3]

Although the proposition of DSM—and its legal and regulatory foundations—has been in the making since at least the late 1960s, it has only become economically viable within the past decade.[4] In anticipation of this hour, governments and companies have scrambled to obtain exploration licenses for vast tracts of both national and international seabed.[5] In 2011, the government of Papua New Guinea (“PNG”) granted the world’s first deep-sea mining lease within an Exclusive Economic Zone (“EEZ”)[6] to Canadian company Nautilus Minerals.[7] Between August and September 2017, Japan became the first country to successfully mine its seabed, tapping into a deposit of mineral resources 1,600 meters below the ocean’s surface off the coast of Okinawa.[8] As of this writing, the International Seabed Authority (“ISA”) has issued twenty-nine exploration contracts for “the Area”[9] that exists beyond the national jurisdiction of states.[10]

Despite arising in the last half century, the “new global gold rush” of DSM shares many features with past resource scrambles – including a general disregard for environmental and social impacts, and the marginalization of indigenous peoples and their rights. This can be attributed in part to DSM’s original 1960s “common heritage” framing, which focused primarily on mineral exploitation, and excluded consideration of other benefits, as well as externalities resulting from extraction.[11]

Based on a limited technical study of the seabed that existed at the time, Maltese statesman Arvid Pardo presented a fantastical portrayal of almost inexhaustible mineral resources to the First Committee of the United Nations (“UN”) General Assembly in 1967, deeming “1.5 trillion tons” of nodules a “conservative” calculation.[12] Pardo simultaneously argued for a regime to prevent individual state monopolies and to ensure the equitable distribution of the benefits arising from these resources as the common heritage of mankind.[13]

Although the concept of common heritage and the details of the subsequent regime to regulate the international seabed remain controversial today (and indeed, constitute a primary justification for the U.S. failure to ratify the UN Convention on the Law of the Sea[14]), the initial “exploitation” framing posited by Pardo and others has continued to dominate the deep-sea narrative.[15] This portrayal derived from a time period in which virtually nothing was known about the deep seabed beyond the fact that it contained mineral resources with economic potential. Hydrothermal vents themselves were not discovered until after Pardo’s speech, in the 1970s.[16]

Today, our knowledge of the deep seabed remains extremely limited. The surface of the moon, Mars, and even Venus have all been mapped and studied in much greater detail,[17] leading marine scientists to commonly remark that, with respect to the deep sea, “we don’t yet know what we need to know.”[18] Recent scientific research, however, has revealed that the deep seabed, and hydrothermal vents in particular, make potentially critical contributions to both biodiversity and global climate regulation.[19] With respect to biodiversity, hydrothermal vent organisms (i.e. crustaceans, giant tubeworms, clams, slugs, anemones, fish, and many other species yet to be documented) are unlike any other life on Earth, able to thrive in temperatures up to 113°C (the highest temperature recorded at which an organism can live) and relying on chemosynthesis to survive.[20] Researchers have discovered over 300 new animal species around vents,[21] over 80% of which are endemic, making each individual vent ecosystem unique.[22] Vent species are also evolutionarily distinct[23] and extremely rare.[24] Many scientists now hypothesize that life itself may have begun at hydrothermal vents, or a similar environment.[25]

In addition to their rich biodiversity, hydrothermal vents and seeps “constitute important . . . sinks,”[26] in which microorganisms specifically adapted to these environments consume and sequester carbon and methane,[27] a greenhouse gas (“GHG”) with roughly 25 to 50 times the potency of carbon dioxide.[28] A 2016 study released by 14 universities and oceanographic institutions found carbon sequestration by hydrothermal vents and seeps to be even more “extensive in space and time than previously thought.”[29] Indeed, one study author cautioned that the release of sequestered methane could be “a doomsday climatic event.”[30] Recent scientific breakthroughs have further revealed that most of the excess heat resulting from increased atmospheric GHG concentrations has been absorbed by the deep ocean, thereby significantly limiting climate change impacts on the ocean’s surface and on land.[31]

These discoveries suggest that the “common heritage” of the seabed extends beyond its mineral resources to include substantial contributions to biodiversity and climate regulation—contributions that may be less quantifiable in terms of projected revenue, but indispensable to human life.

It is becomingly increasingly clear that DSM poses a grave threat to these vital seabed functions. Extraction methods would involve the operation of large, remote vehicles on the seafloor to chemically leach or physically cut crust from substrate and/or use highly pressurized water to strip the crust.[32] All of these methods would produce large sediment plumes and involve the discharge of waste and tailings back into the ocean, significantly disturbing seafloor environments.[33] Several studies[34] have assessed short- and long-term environmental impacts of small-scale experimental DSM,[35] uniformly finding immediate adverse impacts on ecosystem health, species abundance, and biodiversity.[36] Most studies found little to no recovery of mined locations, even years after the experimental operations concluded.[37] Industrial-scale operations are both more intense—operating continuously for significant periods[38]—and more extensive, “devastat[ing] much larger areas of seafloor,” on the order of 10,000 to 100,000 square kilometers.[39] They are anticipated to have far greater environmental impacts, including seabed ecosystem destruction and species extinction;[40] disturbance of large marine animals;[41] contamination of fish and other larger pelagic animals from heavy metals and other toxic substances;[42] potential oil spills and other surface accidents;[43] and increased acidification and destruction of coral reefs.[44] Recent research suggests that environmental damage caused by DSM activities would be largely irreversible.[45]

Another critical lacuna is the environmental impact arising from the onshore processing of harvested minerals, which would likely occur in less developed countries.[46] Although the extent of resultant environmental harm has yet to be quantified, a race to the bottom by developing states to attract onshore processing opportunities is foreseeable. While this may generate small short-term revenues for developing countries, it will impose far greater environmental burdens, even as rich and industrialized nations reap the benefits of harvested deep seabed minerals.[47]

Given these likely environmental effects, DSM implicates other, newer areas of international law, including a corpus of environmental law establishing the climate change and biodiversity regimes (subjected to the emerging notion of “common concern of humankind”), as well as the emergence of relevant norms such as the precautionary approach,[48] the obligation to conduct environmental impact assessments (“EIAs”) and environmental monitoring (“EM”),[49] and the principle of transboundary harm.[50] These laws and norms[51] are now triggered by the latest knowledge of hydrothermal vents and the deep seabed.[52] Consequently, they must be incorporated into the international seabed regime, as well as the national legislation of states intending to enable DSM within their jurisdiction.[53] These laws may also mandate adoption of circumspective measures such as prohibiting DSM in areas where ecosystems are already vulnerable due to the effects of climate change.[54]

DSM’s wide-ranging environmental impacts are also likely to disproportionately impact indigenous peoples[55]—particularly in the Pacific Islands, where much DSM is slated to take place (both in the Area’s Clarion-Clipperton Fracture Zone,[56] as well as the seabed within national jurisdiction of Pacific Island nations).[57] With the support of the European Union (“EU”) and other powerful government actors, multinational mining companies have been actively prospecting in the EEZs of Pacific Island countries, enlisting the aid of the Secretariat of the Pacific Community (“SPC”) to draft legislative frameworks establishing DSM regulatory regimes.[58] The world’s first commercial deep sea mine, Solwara 1, operated by Nautilus Minerals in a joint partnership with the government of PNG, is scheduled to begin production in PNG’s territorial waters in 2019.[59]

The exploratory phase of DSM has already adversely impacted indigenous peoples in the Pacific. In Tonga, large DSM prospecting vessels have overrun prime fishing waters, disturbing fish populations and curtailing traditional fishing routes.[60] In PNG, villagers have reported high incidence of dead fish washing up on shore – including strange deep-sea specimens hot to the touch[61] – as well as a sharp decline in water quality, with traditional fishing waters grown excessively dusty and murky.[62] Moreover, since DSM began, sharks have been absent from their traditional habitat, preventing indigenous communities along PNG’s New Ireland coast from engaging in the customary practice of shark calling.[63]

Although governments and operators have tried to argue that seabed resources are entirely the provenance of the state, a recent body of international indigenous rights law posits a need for obtaining the free, prior, and informed consent (“FPIC”) of indigenous peoples over development activities which could adversely impact their lands, territories, and resources, or their rights over the same.[64] Given the documented impacts on numerous indigenous communities, indigenous concerns and rights must also be incorporated into any regime positing control over seabed resources.[65]

Emerging as it did during a recently post-colonial era in which the voices of developing countries were just beginning to be heard – and those of indigenous and Pacific Islander peoples had largely yet to be – it is no surprise that the seabed regime as originally envisioned excluded the peoples who DSM now threatens to impact the most, as well as consideration of yet unforeseen environmental impacts.

In 2018, however, both the deep sea and the legal landscape look vastly different. The invaluable biodiversity and climate functions provided by hydrothermal vents and the deep seabed are beginning to be understood, with more revelatory discoveries sure to come. Multilateral negotiations to create an internationally binding instrument for the protection of biodiversity and marine genetic resources beyond national jurisdiction will take place between 2018 and 2020, undoubtedly bearing on future DSM activities.[66] Similarly, the emergence of regimes to protect and conserve the environment, as well as the development of bodies of indigenous and human rights law, have drastically altered the assumptions upon which DSM was first premised. Given these exigencies, governments should reform the international seabed regime and design their own national legislation to reflect the newest developments in law and science. In doing so, they should recognize the risks of operating in an unknown environment, fully embrace the precautionary approach, and protect and conserve the ocean for the benefit of current and future generations.

* Julie Hunter (YLS ’13) is a human rights lawyer for Blue Ocean Law, and Clinic Fellow at Allard Law School at the University of British Columbia. Pradeep Singh (HLS ’15, LLM) is a researcher and doctoral candidate at the Center for Marine Environmental Sciences, Bremen (MARUM) and the Faculty of Law, University of Bremen. Julian Aguon is the founder of Blue Ocean Law, a human rights and environmental law practice covering Pacific issues, and Lecturer in Law at the William S. Richardson School of Law. Additional research assistance provided by Autumn Bordner, Stanford Law School.

[1] See, e.g., Brian Clark Howard, The Ocean Could Be the New Gold Rush, Nat’l Geographic (Jul. 13, 2016), https://perma.cc/JW9A-DJEZ; Rebecca Trager, Countries Poised to Roll Out Deep Sea Mining in New ‘Gold Rush’, Chemistry World (Mar. 7, 2017), https://perma.cc/UM66-7TA6.

[2] Kathryn A. Miller et al., An Overview of Seabed Mining Including the Current State of Development, Environmental Impacts, and Knowledge Gaps, 4 Frontiers Marine Science, Jan. 2018, at 9, 10 fig.4. The three main resource types include: 1) manganese nodules: small potato-shaped compounds located on abyssal plains, which are formed over millions of years and contain deposits of manganese, nickel, copper, and other rare earth elements; 2) seafloor massive sulfides: large deposits formed along hydrothermal vents, which contain gold, silver, copper, zinc, and other minerals; and 3) cobalt-rich crusts: hard, metallic coating formed over seamounts, containing deposits of cobalt and other valuable materials (e.g., copper, manganese, platinum). Id at 2–4. Manganese nodules would be plucked from the sea-floor by a remotely operated vehicle, placed in a vertical riser pipe, and pumped to a surface vessel for mineral extraction. Id. at 9. Ore would be mechanically severed from sea-floor massive sulfides and likewise pumped to a surface vessel for extraction. Id. Extracting ore from cobalt-rich crusts is the most technically difficult operation because it requires breaking the crust away from the seafloor without removing too much substrate. International Seabed Authority, Cobalt-rich Crusts 3, https://perma.cc/ZK5B-DJPJ [hereinafter Cobalt-Rich Crusts].

[3] Miller, supra note 2, at 2. See also, James R. Hein et al., Deep-ocean Mineral Deposits as a Source of Critical Metals for High- and Green-technology Applications: Comparison with Land-based Resources, 51 Ore. Geology Rev. 1, 8–9 (2013).

[4] Helen Rosenbaum, Out of Our Depth: Mining the Ocean Floor in Papua New Guinea 6 (Natalie Lowry et al. eds., 2011), https://perma.cc/XK9L-H7WB [hereinafter Out of Our Depth]; see also Brooke Jarvis, Deep-Sea Mining—Bonanza or Boondoggle?, NovaNext PBS (Jan. 25, 2013), https://perma.cc/57DQ-KHJ4.

[5] Ecorys, Study to Investigate State of Knowledge of Deep Sea Mining – Final Report, Annex 5: Ongoing and Planned Activity 194–199 (2014), https://perma.cc/279R-4FJL. Companies are incentivized to pursue DSM because seabed minerals have high expected market value, while governments generally desire to secure their domestic supply of minerals and prevent supply shocks – or in the case of nations licensing their waters for DSM, to gain economically through royalties and taxes on resource extraction. In practice, however, DSM operations are expensive, experimental, and capital-intensive, which drastically reduces and may even negate net financial benefits. See, e.g., Baker et al., Deep Sea Minerals and the Green Economy 47–48 (Elaine Baker & Yannick Beaudoin eds., 2d ed. 2013).

[6] ­See United Nations Convention on the Law of the Sea arts. 55, 57, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]. UNCLOS defines the “Exclusive Economic Zone” as “an area beyond and adjacent to the territorial sea,” extending to 200 nautical miles from a baseline constructed from points on the land territory of the State.

[7] Stace E. Beaulieu et al., Should We Mine the Deep Sea Floor?, 5 Earth’s Future 655, 655 (2017), https://perma.cc/56LS-DPZ2.

[8] Japan Successfully Undertakes Large-Scale Deep-Sea Mineral Extraction, Japan Times (Sept. 26, 2017), https://perma.cc/9JRK-EEUZ; see also Bob McDonald, Japan Just Mined the Ocean Floor and People Want Answers, CBC Radio (Oct. 14, 2017), https://perma.cc/B6PP-SLAM. The deposits contained zinc, gold, copper, and lead and were located at an inactive hydrothermal vent “several hundred metres away” from an active chimney. Id.

[9] See UNCLOS, supra note 6, at art. 1(1). UNCLOS defines “the Area” as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.” Id.

[10] The Republic of Korea and ISA Sign Exploration Contract, International Seabed Authority (Mar. 27, 2018), https://perma.cc/2HKC-B75T.

[11] U.N. GAOR, 22d. Sess., 1st comm. debate at 3-5, UN Doc. A/C.1/PV.1515 (Nov. 1, 1967).

[12] Surabhi Ranganathan, Global Commons, 27 Eur. J. Int’l L. 693, 712 (2016).

[13] Id.

[14] Marjorie Ann Browne, Cong. Research Serv., The Law of the Sea Convention and U.S. Policy, at 6–9 (2006), https://perma.cc/56S4-2MHZ.

[15] Michael W. Lodge, The Common Heritage of Mankind, 27 In’l J. Marine & Coastal L. 733, 733–34 (2012).

[16] What Are Hydrothermal Vents?, Woods Hole Oceanographic Inst. (2017), https://perma.cc/6T37-HUHM.

[17] Jon Copley, Mapping the Deep, and the Real Story Behind the “95% Unexplored” Oceans, U. Southampton: Exploring our Oceans (Oct. 4, 2014), https://perma.cc/U8F8-QSJP.

[18] Megan Miner, Will Deep-sea Mining Yield an Underwater Gold Rush?, Nat’l Geographic (Feb. 3, 2013), https://perma.cc/RKA5-85SH; see also Cinzia Corinaldesi, New Perspectives in Benthic Deep-sea Microbial Ecology, 2 Frontiers Marine Sci., Mar. 2015, at 1.

[19] Cindy Lee Van Dover et al., Scientific Rationale and International Obligations for Protection of Active

Hydrothermal Vent Ecosystems from Deep-sea Mining, 90 Marine Pol’y 20, 20–22 (2018).

[20] Deep Sea Ecology: Hydrothermal Vents and Cold Seeps, World Wildlife Fund, https://perma.cc/QG4D-PZRS [hereinafter Deep Sea Ecology].

[21] On average, a new vent species has been discovered every 10 days since vent ecosystems were first discovered in 1977. Id.

[22] Institute of Ocean Sciences, Management and Conservation of Hydrothermal Vent Ecosystems 2 (Paul Dando & S. Kim Juniper eds., 2001); see also Verena Tuncliffe, The Nature and Origin of the Modern Hydrothermal Vent Fauna, 7 PALAIOS 338, 339 (1992) (“The animal assemblage found at hydrothermal vents is . . . endemic to the habitat in that over 90% of the species are found nowhere else . . . .”).

[23] J. Thomas Beatty et al., An Obligately Photosynthetic Bacterial Anaerobe from a Deep-sea Hydrothermal Vent, 102 Proc. Nat’l Acad. Sci. 9306, 9306–10 (2005), https://perma.cc/4Q43-U5DG.

[24] Maria C. Baker et al., Biogeography, Ecology, and Vulnerability of Chemosynthetic Ecosystems in the Deep Sea, in Life in the World’s Oceans: Diversity, Distribution and Abundance 161, 164 (Alasdair D. McIntyre ed., 2010).

[25] W. Martin et al., Hydrothermal Vents and the Origin of Life, 6 Nature Rev. Microbiology 805, 806–10 (2008); see also Tia Ghose, Origin of Life: Did a Simple Pump Drive Process?, LiveScience (Jan. 10, 2013, 4:34 PM), https://perma.cc/HN4R-CEYK; Robert Service, Our Last Common Ancestor Inhaled Hydrogen from Underwater Volcanoes, Sci. (July 25, 2016), http://www.sciencemag.org/news/2016/07/our-last-common-ancestor-inhaled-hydrogen-underwater-volcanoes.

[26] Lisa Levin et al., Hydrothermal Vents and Methane Seeps: Rethinking the Sphere of Influence, 3 Frontiers Marine Pol’y 1,14 ( 2016) (citing Ritger et al., Methane-derived Authigenic Carbonates Formed by Subduction-induced Pore-water Expulsion Along the Oregon/Washington Margin, 98 Geological Soc. Am. Bull. 147, 147–56 (1988); William S. Reeburgh, Oceanic Methane Biogeochemistry, 107 Chemistry Rev. 486 (2007)).

[27] See id.; Jeffrey J. Marlow et al., Carbonate-hosted Methanotrophy Represents an Unrecognized Methane Sink in the Deep Sea, 5 Nature Comm. 1, 6–8 (2014); see also David Stauth, Hydrothermal Vents, Methane Seeps Play Enormous Role in Marine Life, Global Climate, Ore. St. U. (May 27, 2016), https://perma.cc/7JLP-2SHY.

[28] Potency measured over a 50 or 100 year timeframe, respectively. Overview of Greenhouse Gases: Methane Emissions, U.S. Envtl. Prot. Agency (Apr. 14 2017), https://perma.cc/4JQ7-FR5C; see also Global Warming Potentials, U.N. Framework Convention on Climate Change (2014), https://perma.cc/K97V-HNCS..

[29] Levin, supra note 26, at 14 (citing Marlow et al., Microbial Abundance and Diversity Patterns Associated with Sediments and Carbonates from the Methane Seep Environments of Hydrate Ridge, OR, 1 Frontiers Marine Sci., Oct. 2014, at 1; Levin et al., Biodiversity on the Rocks: Macrofauna Inhabiting Authigenic Carbonate at Costa Rica Methane Seeps, 10 PLoS ONE, July 2015, at 1; Stakes et al., Coldseeps and Authigenic Carbonate Formation in Monterey Bay, California, 159 Marine Geology 93, 93–109 (1999)).

[30] David Stauth, Hydrothermal Vents, Methane Seeps Play Enormous Role in Marine Life, Global Climate, Ore. St. U. (May 31, 2016), https://perma.cc/7JLP-2SHY.

[31] See, e.g., Gerald A. Meehl, Model-Based Evidence of Deep-Ocean Heat Uptake During Surface-Temperature Hiatus Periods, 1 Nature Climate Change 360, 360–62 (2011); Xiao-Hai Yan et al., The Global Warming Hiatus: Slowdown or Redistribution?, 4 Earth’s Future 472, 476–79 (2016); Genevieve Wanucha, How the Ocean Reins in Global Warming, MIT News (Mar. 21, 2014), https://perma.cc/HBC6-4DQ8.

[32] Cobalt-Rich Crusts, supra note 2, at 3.

[33] Miller, supra note 2, at 15; see also Cindy Lee Van Dover, Impacts of Anthropogenic Disturbances at Deep-Sea Hydrothermal Vent Ecosystems: A Review, 102 Marine Envtl. Res. 59, 65–66 (2014); see also, e.g., Jochen Halfar & Rodney M. Fujita, Danger of Deep-sea Mining, 316 Sci. 987, 987 (2007); see also Katia Moskvitch, Health Check for Deep Sea Mining: European Project Evaluates Risks to Delicate Ecosystems, 512 Nature 122, 123 (2014), https://perma.cc/H4R8-CSWD.

[34] The studies examined a single disturbance event over areas ranging from 1 to 11 square kilometers. See Adrian G. Glover & Craig R. Smith, The Deep-Sea Floor Ecosystem: Current Status and Prospects of Anthropogenic Change by the Year 2025, 30 Envtl. Conservation 219, 231 fig.3 (2003).

[35] See, e.g., id. at 230–31 (collecting studies); Dmitry M. Miljutin et al., Deep-Sea Nematode Assemblage Has Not Recovered 26 Years After Experimental Mining of Polymetallic Nodules (Clarion-Clipperton Fracture Zone, Tropical Eastern Pacific), 58 Deep Sea Res. I 885, 886 (2011) (also covering collecting studies).

[36] See, e.g., H. Bluhm et al., Megabenthic Recolonization in an Experimentally Disturbed Abyssal Manganese Nodule Area, 13 Marine Georesources & Geotech. 393, 393 (1995); Miljutin, supra note 35, at 891; T. Radziejewska, Responses of Deep-sea Meiobenthic Communities Sediment Disturbance Simulating Effects of Polymetallic Nodule Mining, 87 Int’l Rev. Hydrobiology 457, 466-69 (2002); Rodrigues et al., Impact of Benthic Disturbance on Megafauna in Central Indian Basin, 48 Deep-sea Res. II 3411, 3422-24 (2001); Y Shirayama, The Responses of Deep-Sea Benthic Organisms to Experimental Removal of the Surface Sediment, Proc. IV Ocean Mining Symposium 77, 78-80 (2001).

[37] See, e.g., H. Bluhm, Re-establishment of an Abyssal Megabenthic Community After Experimental Physical Disturbance of the Seafloor, 48 Deep-Sea Res. II 3841, 3841 (2001) (abundance and diversity of megafauna remained below pre-disturbance levels seven years after disturbance); T. Fukushima et al., The Characteristics of Deep-sea Epifaunal Megabenthos Community Two Years After an Artificial Rapid Deposition Event, 39 Publ. Seto Marine Laboratory 17, 25–6 (2000) (two years after disturbance abundance of megafauna remained depressed). But see C. Borowski, Physically Disturbed Deep-sea Macrofauna in the Peru Basin, Southeast Pacific, Revisited 7 Years After the Experimental Impact, 48 Deep-Sea Res. II 3809, 3819–20, 3828–29 (2001) (macrofaunal abundance achieved pre-disturbance levels 7 years after disturbance, but macrofaunal diversity remained depressed).

[38] Glover & Smith, supra note 34, at 231.

[39] Id.

[40] See, e.g., Cindy Lee Van Dover et al., Biodiversity Loss from Deep-Sea Mining, Nature Geosci. 1, 1 (2017); Andrew J. Gooday et al., Giant Protists (Xenophyophores, Foraminifera) Are Exceptionally Diverse in Parts of the Abyssal Eastern Pacific Licensed for Polymetallic Nodule Exploration, 207 Biological Conservation 106, 114–15 (2016); Glover & Smith, supra note 34, at 230 fig.3.

[41] See, e.g., Daniel O.B. Jones et al., Biological Responses to Disturbance from Simulated Deep-sea Polymetallic Nodule Mining, 12 PLoS ONE, Feb. 2017, at 18; see also Diva J. Amon et al., Insights into the Abundance and Diversity of Abyssal Megafauna in a Polymetallic-nodule Region in the Eastern Clarion-Clipperton Zone, 6 Science Rep., July 2016, at 1, 6–8.

[42] Helen Rosenbaum & Francis Grey, Deep Sea Mining Campaign, Accountability Zero: A Critique of the Nautilus Minerals Environmental and Social Benchmarking Analysis of the Solwara 1 Project 10 (2015), https://perma.cc/8Y2B-BB8R.

[43] Most PI nations do not have the resources or capacity to clean up oil spills or other major marine disasters.

See Richard Steiner, Independent Review of the Environmental Impact Statement for the Proposed Nautilus Minerals Solwara 1 Seabed Mining Project, Papua New Guinea 5–6 (2009) (conducted for the Bismarck-Solomon Seas Indigenous Peoples Council), https://perma.cc/H2WD-BP9J.

[44] Geophysicist Maurice Tivey of Woods Hole Oceanographic Institution noted that the highly acidic slurry piped out of the seabed “could acidify a whole reef” if an accident occurred. Jarvis, supra note 4.

[45] Cindy Lee Van Dover et al., Biodiversity Loss From Deep-sea Mining. 10 Nature Geosci. 464, 464–65 (2017). An experimental deep seabed dredging expedition illustrated that some of the mined areas of the deep seabed had shown little sign of recovery after nearly three decades and would potentially never return to pre-disturbance conditions. See Miljutin, supra, note 35 at 889–91, 895–96 (finding that the 26-year period post-disturbance was “not sufficient for the nematode assemblage to re-establish its former density, diversity, and structure,” and that “[i]f the environment returns to its pre-disturbance condition slowly (as in the present study), the original living community may never be re-established”).

[46] Till Markus & Pradeep Singh, Promoting Consistency in the Deep Seabed: Addressing Regulatory Dimensions in Designing the International Seabed Authority’s Exploitation Code, 25 Rev. Eur. Community & Int’l Envtl. L. 347, 360-361 (2016). Onshore processing has been singled out as one of the three chief environmental impacts that would arise from DSM activities. See J.M. Markussen, Deep Seabed Mining and the Environment: Consequences, Perceptions and Regulations, in Green Globe Yearbook of International Co-operation on Environment and Development 33 (H.O. Bergesen & G. Parmann eds., 1994).

[47] T. Markus & P. Singh, supra note 46, at 360–361.

[48] See, e.g., U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26/Rev.1 (Vol. I), princ. 15 (Aug. 12, 1992) (“Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”); Protocol to the Convention of 1972 on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, art. 3, Nov. 7, 1996, 1046 U.N.T.S. 120; The Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 1522 U.N.T.S. 3; Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998). Article 3.3 of the U.N. Framework Convention on Climate Change states: “Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.” United Nations Framework Convention on Climate Change, art. 3.3, Jan. 20, 1994, 1771 U.N.T.S. 107. Article 6 of the Straddling Fish Stocks Agreement also calls for the application of the precautionary approach, stating: “1. States shall apply the precautionary approach widely to conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks in order to protect the living marine resources and preserve the marine environment. 2. States shall be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.” Agreement for the Implementation of the Provisions of the U.N. Convention on the Law of the Sea of December 10, 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, art. 6, Aug. 4, 1995, U.N. Doc. A/CONF. 164/38.

[49] See, e.g., UNCLOS, supra note 6, at arts. 204- 206. Article 206 stipulates that: “When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.” Id. at art. 206. For a detailed analysis, see N. Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration (2008). In the Pulp Mills on the River Uruguay (Arg. v. Uru.) case, the International Court of Justice considered the preparation of EIAs prior to conducting an activity that could potentially cause a transboundary environmental harm as “a requirement under general international law.” Judgement, 2010 I.C.J. Rep. 14, at 82–83 (Apr. 20). This obligation extends to the continuous monitoring of environmental impacts from such activities once it commences. Id at 84. The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea referred to the ICJ ruling and observed that the requirement to conduct EIAs is a direct obligation under UNCLOS and a general obligation under customary international law that applies to the Area. See Responsibilities and Obligations of States Sponsoring Persons and Activities with Respect to Activities in the Area, Case No. 17, Advisory Opinion of Feb. 1, 2011, ITLOS Rep. 10, 50 ¶¶ 145, 147–148 https://perma.cc/8SJJ-5MGT.

[50] See, e.g., Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905, 1905 (Perm. Ct. Arb. 1941); United Nations Conference on the Human Environment, Declaration of the United Nations Conference on the Human Environment, princ. 21, U.N. Doc A/CONF.48/14/Rev.1 (June 16, 1972); International Law Commission (ILC), Draft Articles on Prevention of Transboundary Harm from Hazardous Activities [with commentary], in Report of the International Law Commission, 53d Sess., UN G.A.O.R., 56th Sess., Supp. No. 10 at 370, 378 art. 3, UN Doc. A/56/10 (2001) (providing that “[t]he State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof”); Pulp Mills on the River Uruguay (Arg. v. Uru.), Request for the Indication of Provisional Measures Order, 2006 I.C.J. Rep. 113 (July 13), https://perma.cc/9QL7-96P7.

[51] See Alan Boyle, Climate Change, Ocean Governance and UNCLOS, in Law of the Sea: UNCLOS as a Living Treaty 211, 225–27 (Jill Barrett & Richard Barnes, eds., 2016). Applying these laws in practice would entail that EIAs and EMs pertaining to DSM activities include detailed prior assessments on the possible effects of such activities related to degrading ecosystem structures and functions and exacerbating climate change impacts in the deep oceans.

[52] Van Dover et al., supra note 19, at 23–25.

[53] Id. at 25; T. Markus & P. Singh, supra note 46, at 357–358. While states work together through the main organs of the ISA to enact laws and standards pertaining to DSM activities in the international seabed, there has yet to be any multilateral discussion on harmonizing domestic regulations for DSM activities within national jurisdictions. If laws pertaining to seabed activities in national jurisdictions are not aligned, any rigor in regulations or standards employed in areas beyond national jurisdiction could be inconsequential.

[54] Lisa A. Levin et al., Defining “Serious Harm” to the Marine Environment in the Context of Deep-Seabed Mining, 74 Marine Pol’y 245, 255 (2016).

[55] Although there is no official definition of “indigenous” within the UN system, the following are criteria which help determine indigeneity: self-identification as indigenous peoples at the individual level and acceptance by the community as such; historical continuity with pre-colonial and/or pre-settler societies; strong links to territories and surrounding natural resources; distinct social, economic or political systems; and a distinct language, culture and beliefs, among others. See, e.g., Who Are Indigenous Peoples? UN Permanent Forum on Indigenous Issues, https://perma.cc/8UDK-YJEC.

[56] Clarion-Clipperton Fracture Zone, International Seabed Authority, https://perma.cc/TVV2-HBD6. Located beyond national jurisdiction (i.e. in the high seas/Area) in the Eastern Pacific Ocean, the Clarion-Clipperton Fracture Zone (CCFZ) is a vast undersea expanse believed to contain massive mineral deposits worth hundreds of billions of dollars; 17 out of the 29 exploration contracts approved by the ISA are within the CCFZ. Biodiversity Loss from Deep-Sea Mining Will Be Unavoidable, Duke Nicholas Sch. Env’t (June 26, 2017), https://perma.cc/W6NK-V3LQ.

[57] Ecorys, supra note 5, at 146; see also Blue Ocean Law & Pacific Network on Globalisation, Resource Roulette: How Deep Sea Mining and Inadequate Regulatory Frameworks Imperial the Pacific and its Peoples 27–29 (2016), https://perma.cc/WQ9S-XXP3 [hereinafter Resource Roulette].

[58] See, e.g., Secretariat of the Pacific Community, Pacific-ACP States Regional Legislative and Regulatory Framework for Deep Sea Minerals Exploration and Exploitation (2012), https://perma.cc/G594-VAAN; Secretariat of the Pacific Community, Achievements of the SPC-EU Deep Sea Minerals Project: Strengthening the Management of Deep Sea Minerals in the Pacific 1–2 (2014), https://perma.cc/6LTE-77B9; Survey Response, Hannah Lily & Alison Swaddling, Secretariat of the Pacific Community, SPC- EU Deep Sea Minerals Project Response to the ISA Stakeholder Engagement Survey on Developing a Regulatory Framework for Mineral Exploitation in the Area 1 (May 16, 2014), https://perma.cc/EH6B-V6PA.

[59] Nautilus Minerals Inc., Management’s Discussion and Analysis of Financial Condition and Results of Operations 10 (2017), https://perma.cc/M2LK-MN2Y; see also Nautilus Provides Project Update, Nasdaq GlobeNewswire (Oct. 12, 2017), https://perma.cc/7ACK-XCCM.

[60] Resource Roulette, supra note 57, at 21.

[61] Id. at 5.

[62] Id.

[63] Id. Villagers suspect noise from drilling chased the sharks away. Shark calling, whereby sharks are lured from the deep through incantation and a rattle-like instrument fashioned from bamboo and coconut shells, is a sacred cultural practice stretching back several millennia. Interview with Rosa Koian, Environmental and Indigenous Rights Advocate and Researcher, in Port Moresby, Papua New Guinea (Apr. 15, 2016).

[64] The FPIC norm has been recognized in a number of international instruments in recent decades, reflecting its emergence as the standard to be adhered to by all states in their engagements with indigenous peoples. The Declaration on the Rights of Indigenous Peoples, adopted in 2007 by an overwhelming majority of states, represents the clearest contemporary elaboration of the requirement for FPIC in any existing international instrument, with several of its provisions calling upon states to secure indigenous peoples’ FPIC before initiating or approving projects with known or potential deleterious impacts on their traditional lands, territories, and resources. See, e.g., G.A. Res. 61/295, annex art. 32(2) (Sept. 13, 2007) (“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”); see also, e.g., Kichwa Indigenous People of Sarayaku v. Ecuador, Inter-Am. Ct. H.R. (Ser. C.) No. 245, ¶¶ 168, 232 (2012), available at https://perma.cc/5B2U-X296; Saramaka People v. Suriname, Inter-Am. Ct. H.R. (Ser. C.) No. 174 (2007), available at https://perma.cc/D87D-6S86.

[65] There is textual basis for the argument that the UNCLOS already provides some consideration of indigenous rights. See UNCLOS, supra note 6, at art. 138 (“The general conduct of States in relation to the Area shall be in accordance with the provisions of this Part, the principles embodied in the Charter of the United Nations and other rules of international law . . . .”). This language would undoubtedly include international law’s recognition, however belated, of the rights of indigenous peoples. Additionally, in much the same way scholars have argued for heightened rights of coastal states with respect to the resources in Areas Beyond National Jurisdiction (ABNJ), see Dunn et al., Adjacency: How Legal Precedent, Ecological Connectivity, and Traditional Knowledge Inform Our Understanding of Proximity 5 (2017), indigenous peoples within coastal states should likewise be accorded heightened rights in ABNJ, as they represent the subset of mankind most directly connected to the physical world and consequently most vulnerable to environmental harm. This argument is particularly persuasive in light of the fact that the primary governing principle of the seabed mining regime authorized in Part XI of the UNCLOS—that “[t]he Area and its resources are the common heritage of mankind,”—is set out in human-, not state-centric, terms. UNCLOS, supra note 6, at art. 136; accord id. at art. 137 (“All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act.”). Moreover, there is arguably no doctrinal obstacle to establishing additional mechanisms within the UNCLOS framework to safeguard indigenous interests in ABNJ similar to that provided in the Convention on Biological Diversity (CBD) framework. See generally Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, Oct. 29, 2010, UNEP/CBD/COP/DEC/X/1 (referencing indigenous peoples and local communities and mandating benefits-sharing relative to the exploitation of genetic resources, including in transboundary situations).

[66] See G.A. Res. 72/249, ¶ 1–3 (Dec. 24, 2017). Although it is still early to predict the course of the negotiations, the overlap between deep sea marine biodiversity and deep seabed activities such as DSM is obvious. Hence, the intergovernmental conference created to negotiate this new instrument would have to consider all other competing uses of the high seas and international seabed and attempt to harmonize them with conservation and sustainable use of marine biological resources in those areas.