Environmental Liability for Deep Seabed Mining in the Area: an Urgent Case for a Robust Strict Liability Regime

Abstract

and recommend changes to the development of liability standards, including the creation of an environmental fund. PART 1-CONTEXT AND LIABILITY ISSUES The Deep Seabed (DSB) extends on the continental shelf, the exclusive economic zone (EEZ), and the Area, and is defined as any seabed surface below 200 m. 4 It is thought to contain vast quantities of minerals, resources, and potentially oil and gas. 5 The DSB encompasses not only the Area, but also the continental shelf (CS) and EEZ. 6 Resources are defined in Article 133 of the UNCLOS as "all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules." 7 It is believed to be a next frontier for extractive industries, 8 as it is seen as solving two issues: first, the potential decline in onshore mineral resources, such as copper and rare-earth metals, 9 and second, that developing countries may benefit from resource extraction as a route to economic development. 10 DSM has not been a significant issue to date due to a lack of technologies that could exploit the Area. 11 However, extractive technologies are advancing at a rapid pace and are almost at commercial readiness. 12 Given that much of the DSB is found at depths of 1.5 km and commercial quantities from 3000 to 6,000 m, 13 there is a great risk of environmental damage conducted by any exploration or exploitation. There was no fulsome regulatory regime for the Area in the UNCLOS. Rather, Part XI created the International Seabed Authority (ISA) to regulate activities. 14 The ISA may exercise control in the Area, as is necessary, to ensure compliance with Part XI, and all countries are obligated to ensure compliance with Article 139. 15 The ISA is thus responsible for all DSM in the Area. 16 To obtain a permit to explore the Area for DSM, a sponsoring state must submit a Plan of Work. 17 As of the date of this article, twenty eight exploration contracts have been issued by the ISA. 18 Yet, despite this number of permits, there are several important legal issues related to DSM that have not been fully developed, including both liability and environmental assessment (EA) requirements.

Deep-sea mining and the potential environmental cost of ‘going green’ in the Pacific

“…81 Thirdly, given the difficulties of establishing fault and causation for environmental harmespecially in the deep sea where there are no physical barriers, there needs to be in place some form of pollution insurance to cover the possibility of environmental harm to species, livelihoods, marine and land environments. 82 Again, nothing has been decided on this to date.…”

Deep-seabed mining: an environmental concern and a holistic social environmental justice issue

“…Until now, there has been a gold rush to the ocean floor occurring under a set of environmental legislations, however with lax environmental regulations and standards, particularly because there is at present significant scientific uncertainty regarding the environmental impacts (IUCN, 2019;MacMaster, 2019;Leal Filho et al, 2021;Levin, 2021;Christiansen et al, 2022;EASAC Report, 2023;Environmental Justice Foundation, 2023;Heffernan, 2023). This uncertainty is not only in terms of environmental science but also in terms of legal, ethical/justice, and geopolitical issues, all of which are fundamental factors in environmental regime effectiveness.…”

The Sanctions on Environmental Performances: An Assessment of Indonesia and Brazilia Practice

“…Therefore, several legal regimes have emerged after this incident aimed at protecting the sea from oil spills. 9 Since environmental issues transcend the limits of government and state management, these environmental disasters have increased human awareness of the significance of conserving the environment and enforcing its laws. Air, water, and sea are three essential aspects of environment or nature to humanity, and were selected as examples in the three scenarios shown above.…”