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University of Pennsylvania Journal of International Law

Publication Date

2024

First Page

181

Document Type

Article

Abstract

Private companies and sovereign States have begun mining the deep sea for polymetallic nodules that contain precious minerals, including cobalt, nickel, copper, and magnesium. In 2021, the small island nation of Nauru triggered a procedural “two-year rule” that requires the International Seabed Authority (ISA) to finalize regulations for deep sea mining (DSM) or consider the provisional approval of commercial exploitation applications. This two-year deadline passed in July 2023 without any resolution. ISA Members States continue to debate a precautionary moratorium on deep sea mining operations in light of inadequate scientific and environmental information about deep sea ecosystems. Meanwhile, advocates argue for scaled-up commercial mining operations in the next few years.

Mining proponents argue that harvesting valuable metals from the ocean floor is essential to facilitate a transition to a new green economy and causes less damage than land-based mining. But marine scientists warn that DSM will cause irreversible environmental damage, impacting biodiversity, migratory species, fisheries, and carbon cycling. Scientific research shows that a combination of sediment plumes, industrial contamination, and anthropogenic noise from deep sea mining have harmful impacts on marine life both on the seabed (benthic fauna) and in the waters above (pelagic fauna). Mining even alters the water chemistry of the deep sea.

The ISA has legal authority to regulate DSM beyond national jurisdictions. Established under the United Nations Convention on the Law of the Sea (UNCLOS), the ISA is required to act on behalf of all humankind and ensure effective protection of the marine environment. Further, under the precautionary principle, ISA officials must consider a range of social and environmental impacts.

This article describes draft ISA regulations that govern mineral exploitation on the seabed and argues these regulations fail to satisfy legal obligations under UNCLOS or properly account for scientific unknowns regarding deep sea ecology. The Article argues that a lack of transparency and mechanisms for meaningful stakeholder participation undermine core principles of ocean law. Current suction dredge mining regulations in the United States established under the Clean Water Act, and reflected in State regulation, may serve as an example for sub-jurisdictional regulation of environmentally harmful mining activities. The Article urges ISA Member States to seek a temporary DSM moratorium until the ISA can revise regulations to comply with international legal obligations, establish reliable ecological baselines, incorporate broader stakeholder participation, and harmonize ISA regulations with the new United Nations Treaty on Biodiversity Beyond National Jurisdiction (BBNJ).

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