Deep-Sea Mining in Areas Under National Jurisdiction
Mapping the International Legal Framework Preventing Potential Harm to Coastal Communities
Authors: Iris Druyan, Shai Goldman, Roni Sobol, and Yasmin Younis; Hebrew University
Beneficiary: The Society for Threatened Peoples, Switzerland
Exploration and understanding of the deep seabed have grown significantly in recent decades, and with them the potential for extraction of valuable minerals through technologies of Deep Sea Mining (DSM). Growing DSM capacities raise concerns regarding the environmental and social impacts of such operations, especially harm to marine ecosystems and the effects on coastal communities, including Indigenous Peoples. This memorandum maps the main instruments and sources of international law relevant to DSM, focusing on affected states, citizens, coastal communities and/or Indigenous Peoples that may wish to limit DSM operations and mitigate its negative impacts. We identify relevant disciplines of international law, among which there are gaps, but also overlaps and synergies – the Law of the Sea (LOS), environmental law, international human rights law, indigenous peoples law, and international investment law. We provide a general characterization of these legal areas as applicable to DSM within national jurisdiction, identify legal obligations of DSM State sponsors and private operators, and examines legal tools which are available to affected groups.
Under LOS and especially the United Nations Convention on the Law of the Sea (UNCLOS), States have the right to exploit natural resources in marine areas under their national jurisdiction, subject to certain limitations. UNCLOS imposes general obligations on States to protect the marine environment from pollution, including specific protections against pollutive activities on the seabed. Under Article 208 UNCLOS, States must adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction, no less effective than international standards. States wishing to carry out DSM under national jurisdiction should incorporate into domestic legislation the precautionary principle (PP), environmental impact assessments (EIAs), biodiversity protection, prevention of transboundary harm, prevention of vessel-source pollution, and community partnership, granting significant protections to the environment and communities, especially if domestically incorporated.
International human rights law applies to DSM in areas such as the right to a healthy environment. The recognition of human rights relating to the environment and expansion of the scope of their protection has increased.
Indigenous peoples’ rights relate to the impact DSM may have on the livelihood and culture of Indigenous Peoples. Indigenous communities must be involved in the approval processes of such projects, enabling them to effectively voice concerns and objections. Most significant is the principle of Free, Prior and Informed Consent (FPIC). FPIC dictates that before a State carries out any project that may infringe upon the rights of Indigenous Peoples, it must first obtain their approval through consultation.
We also briefly address international investment law, recommending further research regarding scenarios in which a government grants DSM licenses to foreign investors, possibly exposing it to investment claims.
A recurring concern is the need for preventive measures. Many of the relevant legal and policy mechanisms are most effective if deployed as preventive rather than reactive measures. Standards such as FPIC, PP and biodiversity protection law should be utilized in order to limit or sustainably manage natural resource exploitation before negative impacts of DSM occur.