Environmental lawyer Duncan Currie discusses fears deep sea miners could bypass a UN agreement and apply to mine under US law
Chimaeras like this one are found in the ocean depths, where campaigners fear seabed ecosystems may be disrupted by mining operations (Image: NOAA Office of Ocean Exploration and Research, CC BY-SA 2.0)
Pressure to open the international seabed for mining is mounting.
Last month, Canadian business The Metals Company (TMC) announced plans to apply to US authorities for permission to mine in international waters. That could mean bypassing a United Nations seabed regulator that has for years been considered the only body capable of giving such approval.
The news shocked environmentalists and governments who have been pushing for a mining moratorium to prevent damage to little-understood ecosystems.
Deep-sea mining involves harvesting minerals more than 200 metres below the surface. Would-be miners are mainly targeting nickel, copper, cobalt and manganese. These “critical minerals” are essential to modern technologies including smartphones, solar panels, wind turbines and electric vehicles. But collecting them could devastate vulnerable ecosystems, say those opposed to the plans.
Previously, most eyes had been focused on negotiations at the International Seabed Authority. ISA is a UN body that regulates seabed mining in international waters under the UN Convention on the Law of the Sea. Now, TMC says that – thanks to legislation passed in 1980 – the US government has the authority to regulate US citizens’ commercial mining in international waters.
On 24 April, US President Donald Trump announced an executive order asserting his country’s right to exploit international seabeds, and allowing the National Oceanic and Atmospheric Administration – a US government agency – to give firms permission to mine.
Dialogue Earth spoke with Duncan Currie, a veteran environmental lawyer and long-time observer of negotiations at the ISA, about the developments and what they mean. Currie is a legal adviser to the Deep Sea Conservation Coalition, which advocates for a mining moratorium.
The conversation has been edited for length and clarity.
Dialogue Earth: The Metals Company’s announcement on 27 March came when you were at a meeting of the International Seabed Authority. What was your immediate reaction?
Duncan Currie: My reaction was almost shock. Anger. Frustration. Almost every country that took the floor at the ISA meeting was deeply critical of the announcement.
The announcement has already impacted the company’s relationships with the Pacific islands. The Pacific countries, such as Nauru, that have worked with the company to explore minerals and obtain commercial mining approval under the UN legal framework, must be feeling incredibly frustrated and confused.
UN legal framework on deep-sea mining, a history
The UN Convention of the Law of the Sea (Unclos) is a set of rules adopted in 1982 to govern the ocean and its resources, including maritime boundaries, scientific research and economic activities.
Part XI of the convention concerns deep-sea mining and states that an International Seabed Authority (ISA) should be set up to regulate mineral exploration and exploitation in the high seas. The ISA was established in 1994 when Unclos came into force and has been working since the early 2000s to create a Mining Code. Since the part of the code concerning exploration was adopted in 2014, ISA’s focus has been on finalising rules for exploitation.
Also in 1994, after the US and other developed countries raised “certain difficulties” with the Unclos deep-sea mining provisions, an agreement was reached to modify them. The changes include a new rule allowing an ISA member to request that the body completes its Mining Code within two years and, if that is not achieved, “provisionally approves” mining under whatever regulations are in place at the time. This is also known as “the two-year rule”.
Were you previously aware of the US’s 1980 Deep Seabed Hard Mineral Resources Act, which TMC says gives the US the ability to approve mining?
I knew about it. But I have always seen it, as I think most commentators have, as a belt-and-braces approach, a “just in case” sort of arrangement. The legislation was there in case the US needed to invoke it as part of the Unclos multilateral scheme. It’s not there as one or the other. It was there as part of the UN scheme.
Although the US did not ratify Unclos, it did sign an agreement in 1994 to amend the deep-seabed mining provisions of the convention, after it successfully negotiated all the changes it wanted. That indicates that they were comfortable with it. Also, under the Vienna Convention on the Law of Treaties, countries that have signed a treaty have an obligation not to undermine its objective and purpose.
One legal issue lies in whether the US has persistently objected to part XI [which governs deep-sea mining]. Some in the US government would say they did in 1982 and 1983. However, the negotiations and the subsequent signing of the 1994 agreement show they are not in a position to oppose the provisions.
Can the US government unilaterally authorise mining operations via an executive order from the president?
In this context, number one, they shouldn’t do anything that undermines the provisions [of the 1994 agreement]. Number two, they are bound by customary international law to abide by Unclos.
I don’t see the executive order signed by Trump yesterday as authorising mining operations. It essentially tasks a branch of the US government – Noaa – to develop an expedited process to review and issue mining exploration licenses and exploitation permits in international waters within 60 days.
The move signals the US intends to pursue mining operations unilaterally. But what Noaa could do under the executive order may send shockwaves through the 170 parties to Unclos, who strongly advocate multilateralism.
What are the potential consequences of the US bypassing the UN regime and approving seabed mining?
A part of the problem is that it creates chaos. It creates uncertainty. I wouldn’t want to go down the lane of thinking about what will happen – because it could be quite severe. I’m still hoping that the US decides it’s a really bad idea.
Also, under international law, the metals cannot be sold. Let’s use illegal, unreported, and unregulated fishing as an analogy. When a fishing vessel violates fishing regulations, it faces consequences, including not being able to unload its catch in various ports. Its catch also cannot be sold in several countries, like the US or the European Union. Similar things would apply to metals obtained in violation of Unclos.
Other countries involved in the mining activities could also act. For example, the deep-sea collection system that The Metal Company used in their recent mining trial is owned by a Swiss-based offshore contractor, Allseas. Switzerland would be under legal obligations to ensure its nationals do not participate in such activity.
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Mining vessel Hidden Gem, part of the technology The Metals Company wants to use to exploit deep sea metals (Image: Charles M. Vella / Sipa US / Alamy)
Where does this leave The Metals Company’s chances of mining under the UN regime?
As far as I can tell, the firm hasn’t decided on whether a mining application will be made under the US legislation, the ISA or both. The CEO of The Metal Company Gerard Barron’s comments to investors explicitly left the possibility open.
We’re only two months away from 27 June, the date the company said they would lodge an application to the ISA for an exploitation contract. We’re clearly getting a lot of disputes, chaos and difficulties around this issue. All of these give a stronger reason for a moratorium or a precautionary pause on mining. So that we can have some years when countries can say: “Okay, well, let’s just take a deep breath and consider the whole matter properly.”
- This article was originally published on Dialogue Earth under the Creative Commons BY NC ND licence. Read the original article.
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