At least a dozen United Nations member states, along with Latin American and Caribbean countries, oppose a plan by a global body to issue the first-ever license to a nation to explore minerals in the deep seabed in 2023. These countries are concerned about the lack of thorough information that is available to determine how much damage such mining can cause to the overall environment and the ocean in particular.
Despite these misgivings, the International Seabed Authority, an autonomous body charged with carrying out the UN Convention on the Law of the Sea (Unclos) — including controlling all mineral-resources-related activities in the ocean — is proceeding with writing a global mining code that could lead to commercial exploitation of the seabed as soon as 2024.
Chile, which currently leads the seabed authority’s governing council, wants an agreement on a mining code to be delayed for 15 years, until more studies are done on the effects of digging into ocean floors.
“There is a lack of knowledge about the ecosystems in the deep seabed, but we know that humanity sometimes produces knowledge very fast,” Ximena Fuentes, the vice minister of foreign affairs of Chile, told PassBlue in an interview in New York City in December.
“That is why we are open to the development of new technologies, and we have proposed a precautionary pause of 15 years, which means that we are open to the idea that in some areas, at some point in time, there could be some exploitation,” Fuentes added.
The members of the ISA, as it’s known, consist of 167 countries and the European Union. Formally, the organization is made up of five bodies: the Secretariat; the Assembly, representing member countries; the Council, elected by the Assembly; the Finance Committee; and the Legal and Technical Committee.
Critics of the seabed authority say it has little public oversight. Based in Kingston, Jamaica, it was established through the 1982 convention, or Unclos, and led by the idea of a “common heritage of mankind,” a phrase that is used to clarify that the natural abundance of the ocean floor should belong to all of humanity. Right now, that wealth may be co-opted by one large mining company in Canada, using the small island country of Nauru in the Pacific Ocean to influence legislation at the ISA.
Stakes could hardly be higher for advancing a mining code. Such work could introduce toxic metals into marine food networks and cause the waste to disperse over long distances, affecting fisheries and delicate ecosystems like coral reefs. It could potentially smother ocean life, threaten people’s livelihoods and compound the climate crisis, scientists fear.
But the financial interests of deep-sea mining is equally strong, intent on exploring the ocean floor for its myriad metals embedded in naturally occurring nodules — the most-coveted mineral being cobalt, which is used for batteries in phones, electric cars and other electronics. Other minerals include nickel, manganese and copper.
The contention among members of the ISA hinges on a subparagraph in a section of Unclos establishing that the 36 Council parties must complete the rules, regulations and procedures for exploitation within two years after a plan of work has been submitted for approval. Even with no mining code, the Council “shall none the less consider and provisionally approve such plan of work.”
The two-year deadline was triggered in the summer of 2021 after Nauru — an 8.1 square-mile island in the southwestern Pacific — filed a deep-seabed mining application. Nauru is sponsoring the Metals Company, headquartered in Vancouver, which already holds the exploration and commercial rights of tons of seabed rocks packed with cobalt, copper and nickel in the Clarion-Clipperton Zone, an area in the Pacific between Mexico and Hawaii.
The ISA regulations should be approved by consensus of the 36 Council members, or at least a two-thirds majority of 25 member states, a threshold that is far from clear right now, according to national statements read during the 40th anniversary of the adoption of the Convention, marked at United Nations headquarters in New York City on Dec. 8 and 9.
Several ISA Council members called for a pause or moratorium on mining the ocean floor: Palau, Fiji, Samoa, Micronesia, New Zealand, Costa Rica, Spain, Germany, Panama and Chile. In November, at the UN’s climate change conference in Egypt, French President Emanuel Macron called for a complete ban on deep-sea mining.
Current knowledge and available science are insufficient to approve deep-seabed mining, stressed Michael Hasenau, a legal adviser for the German mission to the UN, during the Convention anniversary meeting on Dec. 9, calling for “a precautionary pause” to prevent rash decisions on the marine environment.
Meanwhile, Brazil, the Netherlands, Portugal, Singapore, Ecuador, Italy and Switzerland indicated they would not approve any mining contracts until enough environmental protections are in place. The Group of Latin America and Caribbean Countries (Grulac) and composed of 25 members, took a similar position, saying: “Mining exploitation in the deep sea cannot be initiated until a robust legal framework, including the regulations and the relevant standards and guidelines, has been adopted.” None of these countries referred to the two-year timeline. Though the United States is not a party to the Law of the Sea treaty, American organizations still have influence over the ISA. Lockheed Martin, the weapons manufacturer, for example, holds two exploration contracts. The US maintains observer status to the seabed authority.
“Chile confirms the value given by the Convention to the exploration and prospecting of the seabed as the way forward agreed by the parties and within a process leading to its exploitation, but with the foreseen safeguards,” the country said in its official position at the Unclos states parties meeting in June. The statement warned that any economic benefit that might be achieved by seabed mining could amount to nothing, given that more resources would be needed “to restore an ecosystem that formed thousands of years ago and of which we lack sufficient scientific knowledge.”
Two other Council members besides Nauru — Britain and Norway — have argued that it’s feasible to adopt the mining code by July 2023, echoing the official position of the Seabed Authority’s leadership.
“Early adoption of the new regulations is important,” Mirjam Bierling, first secretary of Norway’s mission to the UN, said at the session in December. Her country, she added, “encourages the Authority to continue its work on the draft regulations as a matter of priority.”
A British lawyer, Michael Lodge, is secretary-general of the ISA. His position at the UN conference in December was much more bullish than the Norwegian stance. In the Convention’s four decades, he said, countries have “acted with the necessary caution and restraint to avoid an extreme polarization of views.” That is not the case now, he suggested, adding that it was “a matter of the greatest concern.” Some countries promote positions that “radically change the rules of engagement and even deny the essential vision set out in the Convention,” Lodge added.
On Dec. 9, at a General Assembly session on Oceans and the Law of the Sea, Lodge assured the members that the seabed authority was moving into 2023 with “a determination to complete the mining code.”
Lodge is a controversial figure. He has a background in ocean law and fisheries management and has worked extensively in the South Pacific, where he was a lead negotiator for the 1995 Fish Stocks Agreement, part of the Law of the Sea treaty. He has been with the ISA as a legal counsel since 1996 and was elected secretary-general in 2016. But civil society members and former employees of the ISA have been raising alarms about potential conflicts of interest in the organization and a lack of transparency surrounding funding for and profits from mining, according to a two-part investigation by PassBlue a year ago into the seabed authority’s operations.
Indeed, the process to produce a mining code is taking place amid increased scrutiny on the seabed authority’s ostensible lack of accountability, as PassBlue reported. It found, for example, that the relationship between Lodge and the Metals Company, which holds three exploration licenses issued by the ISA, especially alarmed critics of the authority. Lodge sparked negative attention when he tweeted a photo of himself in 2018, wearing a hard-hat branded DeepGreen, the previous name of the Metals Company, on one of its exploration cruises.
PassBlue’s investigation into ISA’s operations involved interviewing eight scientists, researchers and lawyers familiar with deep-sea mining as well as four former ISA employees and scouring documents from the ISA, embassy cables, civil society reports, academic papers and examining records in the UN Appeals Tribunal, which is hearing disputes from employees who have left the seabed authority.
In October, The New York Times revealed that the seabed authority provided the Metals Company with critical information about the most valuable seabed areas, advantaging it over other contractors.
In September, civil society organizations complained that the ISA had not been transparent when approving a deep-sea mining test that was not made public until a Metals Company subsidiary, NORI, issued a press release on Sept. 7, a week before the seabed authority did so. The Deep Sea Conservation Coalition called for NORI’s testing approval to be rescinded.
Matt Gianni, a political and policy adviser for the coalition, said that the seabed authority’s Legal and Technical Commission — responsible for issuing exploration licenses and that longtime observers say has never turned down an application — approved the test without consulting Council members.
Despite these red flags, the mining test in the Pacific’s seabed proceeded for eight weeks, a critical step for licensing commercial exploitation. With one of the biggest vessels of its type in the world, NORI mined and lifted onboard 3,000 tons of polymetallic nodules from the sea floor. Greenpeace activists from Mexico and New Zealand peacefully confronted the vessel off the coast of Manzanillo, Mexico, as it returned from the Pacific. Activists in a kayak alongside the ship held banners that read “Stop Deep Sea Mining.”
To date, the ISA has approved 30 contracts for exploration, involving 22 countries and covering more than 1.3 million square kilometers of the ocean floor. These activities are aimed at gathering information on the location and quality of the minerals of the seabed as well as to collect environmental information, but no mining operations have started anywhere in the world. That will change if and when the first exploitation license is authorized.
Despite the growing opposition to seabed mining, the Metals Company will likely submit an application for a commercial exploitation license by this summer, even if the Council is unable to complete the rules, regulations and procedures. The Assembly could have the ability to approve the authorization.
“This is an interpretation of the Convention,” Fuentes of Chile said. “I think that interpretation should not prevail because it contradicts the developments of international law on environmental protection.”
It is customary international law, upheld in many tribunals, that no country should harm other countries’ resources or areas beyond its national jurisdiction, Fuentes noted. Prevention of harm must therefore be considered, she said, requiring due diligence. “Therefore, one cannot argue that because there are no particular regulations like a mining code, someone can do whatever they want.”
Regardless of precedents, the Metals Company told investors that it expected to start its commercial mining operation in 2024. After a Council meeting in November at ISA headquarters, the company said: “Despite roughly 10 out of 167 ISA Member States calling for a pause on the industry, the vast majority of statements from member states last week expressed continued support for negotiating the draft exploitation regulations in good faith.”
It’s still uncertain whether certain countries and civil society activists have rallied enough support from fellow seabed authority members to force a pause or to permanently ban mining exploitation for commercial purposes.
“I prefer not to answer that question now, because it would only be a speculation,” Fuentes said on the number of countries that would support a moratorium. “We are in negotiations, so I prefer to keep that open. I prefer to be cautious.”
More clarity may surface when the Council members meet from March 16 to March 31 in Kingston, for the 28th session of the ISA — and possibly succeed in slowing or stopping efforts by commercial interests to exploit the ocean floor.
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Maurizio Guerrero is an award-winning journalist who for 10 years was the bureau chief in New York City and the United Nations of the largest news-wire service in Latin America, the Mexican-based Notimex. He now covers immigration, social justice movements and multilateral negotiations for several media outlets in the United States, Europe and Mexico. A graduate journalist of the Escuela de Periodismo Carlos Septién in Mexico City, he holds an M.A. in Latin American, Caribbean and Latino Studies from the City University of New York (CUNY).