Deep-sea mining

The deep sea is one of the last regions on earth largely untouched by humans. The exploitation of mineral resources from deep-sea deposits could become more important due to rising metal prices and greater demand.

Table of Contents

The exploitation of mineral resources from the deep seabed has been increasingly in the spotlight for the past five years. This is mainly due to the increased testing of mining techniques on site as well as the growing demand for mineral resources, including the raw materials needed for the energy transition and thus climate policy.

The most important types of raw materials are manganese nodules (polymetallic nodules), cobalt-rich iron and manganese crusts as well as massive sulphides and ore slurries. The raw material deposits in question are to be found at depths of 2,000 to 6,000 meters, on the slopes of seamounts, on mid-ocean ridges, on the deep-sea floor and on the floor of the Red Sea.

The ecosystems on the deep seabed and the species adapted to their extreme living conditions are very sensitive. Interventions are hardly reversible; the consequences of, e.g. the exploitation of manganese nodules would still be apparent thousands of years later. Knowledge about the ecology of the deep sea is extremely limited. The habitats with their biocenoses are often unique. Mining activities could irretrievably destroy these rare species and habitats.

The United Nations International Convention on the Law of the Sea (hereinafter UNCLOS) of 1982 declares both the deep seabed outside national jurisdictions as well as the mineral resources found there to be the "Common Heritage of Mankind". This principle primarily prohibits states from claiming sovereign rights over the deep seabed. UNCLOS established the International Seabed Authority (ISA) to define and control rules for the exploration and exploitation of mineral resources. UNCLOS also requires that negative impact on the marine environment are to be avoided. Finally, revenues and other benefits from mining activities must be shared fairly with other states ("benefit sharing").

Against the backdrop of economic, ecological and legal conditions, the ISA is to develop appropriate regulations for the exploration and exploitation of mineral resources ("Mining Code") and to control exploration and mining activities on this basis. Rules and regulations for exploration are already available; the rules and regulations for mining projects for manganese nodules are being discussed and negociated since 2017.

Since March 2020, this process has been largely dormant due to the Covid-19 pandemic.

In spring 2021, several large companies, such as BMW, Volvo, Samsung and Google, published a "Call for a Moratorium" stating that they would not use metals from the deep sea in their production. A few months later, many scientists signed an international call "to pause deep seabed mining". Both the companies and the researchers justified their call with the knowledge gaps and the possibly irreversible environmental damage.

 

State of exploration and exploitation

In principle, the ISA has to grant a licence for exploration and exploitation activities. On the basis of such a licence, the ISA and project developers (“contractors”) conclude respective contracts.

Since 2001, the ISA has entered into a total of 31 exploration contracts, each with a term of 15 years. 19 contracts are for the exploration of manganese nodules in areas of 75,000 square kilometres each, 17 of which are in the tropical Northeast Pacific and one each in the Indian Ocean and the Northwest Pacific. Seven contracts allow the exploration of massive sulphides at hydrothermal vents on mid-ocean ridges in the Atlantic and in sub-areas of the Indian Ocean with a total area of 10,000 square kilometres per contractor. The remaining five contracts are for the exploration of polymetallic crusts on seamounts in the Northwest Pacific, covering 3,000 square kilometres each.

Since 2006, the German Federal Institute for Geosciences and Natural Resources (Bundesanstalt für Geowissenschaften und Rohstoffe, BGR) holds a licence for the exploration of manganese nodules in the Equatorial North-Eastern Pacific Ocean and since 2015 another one for the exploration of massive sulphides in the Western Indian Ocean. Among other things, the contract makes it obligatory for the BGR to carry out extensive environmental investigations.

A distinction can be made between public and private project developers. Public project developers include the Institut Français de Recherche pour l'Exploitation de la Mer, IFREMER (France), the Federal Institute for Geosciences and Natural Resources (BGR) and the governments of South Korea and India. Private ones are for example: Global Sea Mineral Resources (GSR; based in Belgium), UK Seabed Resources Ltd., UK (together with Lockheed Martin, USA), the Metals Company (based in Canada; formerly deepgreen).

The ISA has not yet approved any mining activity, as the legal basis is lacking. Some private developers, such as Global Sea Mineral Resources, the Metals Company and UK Seabed Resources Ltd. expect the first mining projects to be carried out in five to ten years.

 

Economic and technical aspects

The extraction of manganese nodules, manganese crusts and massive sulphides from the deep seabed could turn out to be economically interesting because they contain a high quantity of copper, nickel, cobalt and zinc compared to the currently exploited land deposits.

The return on mining projects on the deep-sea floor depends on many factors, including the price development of these minerals and competing extraction options on land. Overall, prices are expected to rise because demand is likely to increase - due to increasing digitalisation and the energy transition.

However, it can be expected that the onshore reserves will last for a very long time since mining techniques in this sector will continue to develop as well. In addition, intensified recycling could also compensate for the extraction of more minerals, at least in part.

It must also be considered that mining activities on the deep seabed can result in the exclusion of other potential economically interesting uses, e.g. the exploitation of genetic resources for the development of pharmaceuticals. Options for use compared to no use (zero alternative) require an overall economic consideration of the consequences with regards to the conservation of natural resources and the inclusion of ecological and economic costs.

Some legal scholars argue that the great advantage of deep-sea mining is that it is only possible with the approval of the ISA, whereas in some countries in particular, mining activities entail serious violations of human rights and dramatic environmental pollution, precisely because the control mechanisms are lacking. This consideration only appears to be correct. This is because the assumption that onshore mining will no longer be needed as long as there is sufficient deep-sea mining is not appropriate. Onshore mining will continue anyway, provided it is profitable, because a lot of different companies involved look after their own economic interests.

Up to now, techniques for commercial exploitation of the three types of raw materials have not been developed. Various technical extraction concepts are under discussion and in preparation. Individual elements of these mining techniques have been tested in field trials since the mid-2010s. In this context, it should be mentioned that Japan attempts to make its national mineral resources supply more independent by means of deep-sea mining in national waters. Companies like Global Sea Mineral Resources are in the process of testing first pre-prototypes of collectors. At present, it is not possible to predict with certainty when a well-engineered technology will be available.

 

Risks for the environment

In general, exploration activities slightly impact the environment, since investigations deal with mining being technically feasible and economically viable in a certain area. Commercial mining activities, however, often cover enormous areas of land. Furthermore, respective contracts usually run for 30 years. Such projects would, for the first time, have a large-scale impact on ecosystems that have so far remained largely untouched.

Essentially, three types of environmental impacts may be differentiated:

First, the extraction of mineral resources may negatively impact biodiversity, as for instancethe manganese nodules themselves are the substrate for unique habitats.
Second, the mining process raises and disperses sediment leading to turbidity in the normally crystal clear water and, after settling, possibly covers benthic organisms. The ability of highly sensitive organism on the deep-sea floor and in the water column to ingest food is also impaired.
Third, after initial treatment of the extracted ores, the contaminated production water is discharged into the sea and can cause pollution and damage in the water column. Further possible negative impacts can be due to noise and light emissions.

Commercial deep-sea mining is very likely to result in the extinction of species. The respective publications by Holly J. Niner al. (2018) and Van Dover al. (2017) are referenced here.

It should be taken into account that the knowledge about deep-sea ecosystems is very small and that the species living there are very sensitive because, among other things, life in the deep sea develops very slowly. In order to avoid or at least limit serious consequences of deep-sea mining for the environment, technical requirements and environmental quality standards (environmental standards), being as concrete as possible, are needed. Environmental standards should possibly be quantified so that they can be verified. The ISA is currently developing such environmental standards.

At that time, this declaration was linked to the hope that deep-sea mining could possibly eradicate poverty worldwide. This expectation has not yet been realized. In principle, UNCLOS advocates the promotion of mining activities, but subject to the condition that the marine environment will be adequately protected.

The international legal requirements for mining projects are derived from UNCLOS and the 1994 Implementing Agreement. UNCLOS is a largely comprehensive set of rules and regulations of almost universal application - although the USA have not yet ratified it. According to its preamble numbers 1 to 4, it aims to clarify all aspects of the law of the seas. Most of the provisions of UNCLOS are recognized as customary international law.

The requirements under international law for mining activities on the seabed differ depending on whether they take place within or outside national jurisdiction.

UNCLOS distinguishes between certain spatial areas and defines the states’ respective rights and obligations for these areas which, primarily, comprise coastal waters, the continental shelf, the high seas and “the area”.

The territorial waters (up to twelve nautical miles, depending on the designation - UNCLOS Article 3) are part of the national territory of the coastal states with exclusive sovereignty (UNCLOS Articles 2 et seq.). In the Exclusive Economic Zone (up to 200 nautical miles) as well as on the continental shelf (generally 200 nautical miles, or further in case of corresponding natural conditions), the coastal states have the exclusive exploitation rights over natural resources, both living and non-living.

When exploring for or exploiting of mineral resources on the continental shelf, states are to comply with the requirements of Part XII of UNCLOS - "Protection and preservation of the marine environment". UNCLOS Articles 192 et seq. oblige coastal states to preserve and protect the marine environment. According to UNCLOS Article 194 (5), appropriate measures are necessary to protect and preserve rare or fragile ecosystems. According to UNCLOS Article 208 (3), national measures shall be no less effective than the internationally agreed level of protection.

In Part XI, UNCLOS refers to the seabed beyond the national continental shelf as "The Area". UNCLOS Article 136 declares "The Area" to be the "Common Heritage of Mankind". The principle of "Common Heritage of Mankind" is usually assigned five core elements. First, UNCLOS Article 137 (1) provides, similar to the high seas, for a prohibition of appropriation of the deep seabed as a whole or any part thereof. UNCLOS Article 137 (2), also applies to mineral resources as long as they are still under the seabed surface. However, according to UNCLOS Article 137 (2), sentence 2, an appropriation of mineral resources is licit if it is done pursuant to the specifications of Part XI. Secondly, UNCLOS puts the exploitation of mineral resources of “The Area” under international administration (UNCLOS Article 137 (2), sentence 2, and UNCLOS Articles 156 and 157). The ISA, based in Kingston, Jamaica, is in charge of the administration. Third, UNCLOS Article 141 calls for “The Area” to be used exclusively for peaceful purposes. Fourth, UNCLOS Article 145 stipulates that "effective protection of the marine environment from harmful effects" is to be ensured. Fifth, UNCLOS Article 140 (2) and Articles 160 et seq. provide for financial and other economic revenues and benefits be shared equitably among all states ("benefit sharing").

Since the adoption of UNCLOS in 1982, international environmental law has developed significantly. The international community has agreed on further principles, some of which are binding and some of which are not legally binding. These are: first, the principle of sustainable development; second, the precautionary principle, and third, the polluter pays principle . The principle of sustainable development calls for the integration of social, economic and ecological concerns, taking into account the interests of future generations. The precautionary principle entails that measures must also be taken in the case of gaps in knowledge if this is necessary to protect the environment.. The polluter pays principle calls on the polluter to bear the costs of restoring environmental impairment.

The ISA Signatories have repeatedly declared their commitment to both the principle of sustainable development and the precautionary principle. Thus, it can generally be assumed that the ISA recognizes these two principles as binding or at least as guiding action. This does not apply to the polluter pays principle - at least not explicitly.

The basic assumption of UNCLOS is that the ISA should encourage mining activities on the deep seabed (see UNCLOS Articles 150 et seq.). This being the case, UNCLOS in principle gives a positive answer to the question of "whether" mining activities should take place. However, according to UNCLOS Article 145, this regulation is subject to the proviso that the marine environment can be effectively protected. Legally, it would therefore be possible to prohibit mining activities and also to impose a general moratorium on mining activities arguing that the impact on the environment cannot be adequately predicted due to the existing lack of knowledge.

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Framework under international law: Part XI of the Convention on the Law of the Sea

The 1982 United Nations Convention on the Law of the Sea (UNCLOS), in conjunction with the 1994 Implementing Agreement to Part XI of UNCLOS, provides the international legal basis for governing deep-sea mining. Part XI of UNCLOS applies only to the "Area", i.e., the deep seabed beyond the territorial waters and the Exclusive Economic Zones.

Part XI of UNCLOS declares the "Area", including its mineral resources, to be the Common Heritage of Mankind. Control and management are under the authority of the ISA. Pursuant to the principle of "Common Heritage of Mankind," no state may appropriate the Area or any part thereof as territory. UNCLOS requires that negative effects on the marine environment be avoided. Finally, benefits from mining activities must be shared fairly with other states ("benefit sharing").

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The International Seabed Authority (ISA): Organs, decision-making processes and operating principles

UNCLOS gave rise to the ISA. The principle of "Common Heritage of Mankind" called for international management of mining activities on the deep-sea floor. The ISA has five organs: Assembly, Council, ISA Secretariat, Legal and Technical Commission (hereinafter LTC) and Finance Committee (FC). The Assembly, in which all State Parties are represented, is the supreme organ. The Council is the executive body. 36 State Parties are represented in the Council and selected on the basis of regional as well as economic aspects. LTC and FC are essentially advisory bodies to the Council, though with much influence. The ISA Secretariat, headed by the current Secretary General Michael Lodge, is primarily responsible for the ISA's internal management.

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Benefit Sharing

The principle of the "Common Heritage of Mankind" entails, among other things, the fair sharing of any reaped financial and economic profits. Benefit sharing is intended to prevent benefits from accruing only to the technological pioneers. The advantages resulting from the exploitation of the mineral resources found on the seabed should prove advantageous to all - this is the basic idea of the "common heritage". This is obviously in the interest of the less developed countries. Many details still remain unclear since the efficiency of projects could possibly be questioned if too many charges were levied. Already for some years, an "open ended working group" at the ISA has been negotiating the concrete structuring of the payment mechanism and the distribution system.

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The Mining Code of the ISA

The ISA's Mining Code comprises the rules and regulations for all mining activities on the deep seabed, from prospecting and exploration to the actual mining of minerals. The ISA is responsible for the development and the adoption of the Mining Code. It has already adopted appropriate regulations for prospecting and exploration. However, the legal requirements for mining activities are currently still being discussed and negotiated.

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Regional Environmental Management Plans

The ISA has undertaken to draw up so-called Regional Environmental Management Plans ("REMPs") for all regions of “The Area" in which mining activities ranging from exploration to exploitation are being carried out or are planned. These plans precede the licensing of individual projects and should, at least, be considered when decisions are taken on specific projects. It is debatable whether they should be mandatory. The purpose of these plans is to harmonize mining uses with environmental concerns, to fill knowledge gaps, to identify and deal with cumulative effects, and to address competing uses with other licit uses (e.g., fishing, cable laying). In 2012, such a plan was adopted for the Clarion Clipperton Zone . Others are in preparation. Negotiations are also underway to standardize the preparation as well as the content of such REMPs. Germany, the Netherlands and Costa Rica submitted corresponding requests in February 2020.

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