Plundering the Abyss: Why Deep-Sea Mining Violates UNCLOS
The United Nations Convention on the Law of the Sea (UNCLOS) mandates the avoidance of ‘serious harm’ to the marine environment AND requires the development of rules, regulations, and procedures (RRPs) to ensure the ‘effective protection from harmful effects’ (Article 145) when when greenlighting projects under its jurisdiction. These legal obligations serve as the cornerstone for environmental governance in the deep sea, emphasizing well-recognized global principles; namely, the precautionary principles and sustainable resource management.
Despite these legal safeguards, the International Seabed Authority (ISA) has been under increasing pressure from marine science and policy experts. A recent expert statement has called for a moratorium on deep-sea mining until robust scientific information is available to determine whether such activities can proceed without causing significant damage to the marine environment.
A proposal was recently introduced at the ISA to define ‘serious harm’ and establish criteria for evaluating environmental risks if indeed the ISA would start considering applications for deep sea mining. Without a clear definition, it remains difficult to assess whether deep-sea mining operations comply with UNCLOS’ environmental mandates.
Similarly, regarding the ‘effective protection of the marine environment’ under Article 145, a proposal has been made to introduce additional criteria to the Legal and Technical Commission’s (LTC) assessment of mining applications. This measure seeks to align decision-making with UNCLOS’ environmental obligations but remains in need of further discussion and implementation.
To translate environmental harm criteria into enforceable environmental methods, the ISA is working on developing legally binding standards. These standards must be in place before any mining application can be approved. Three intersessional expert groups have been established under the LTC, with membership announced in November 2023. These groups are responsible for developing initial threshold standards in three critical areas:
- Toxicity – Establishing limits on harmful substances released into the marine environment.
- Sedimentation/Turbidity – Regulating the dispersal of sediment and its impact on marine ecosystems.
- Noise and Light Pollution – Assessing the effects of artificial noise and light on deep-sea life.
The Need for an Environmental Management Framework
One of the most glaring regulatory gaps is the absence of an overarching environmental management framework or policy within the ISA. A framework would serve to clarify how the ISA’s environmental obligations translate into operational goals and objectives while ensuring adherence to the precautionary principle. This principle, central to international environmental law, dictates that activities should not proceed if their environmental impacts are uncertain or potentially severe. However, this is currently missing under the current RRPs for deep sea mining.
The draft RRPs propose that contractors conduct small-scale test mining operations before submitting exploitation applications. These tests are intended to validate environmental impact assessments (EIAs). However, key concerns remain:
- How extensive should test mining be before it qualifies as a full-scale operation?
- What safeguards should be in place to ensure EIAs accurately reflect real-world impacts?
- How will the ISA enforce compliance with environmental standards in the absence of a broader regulatory framework?
Another key concern is the fact that the data we do have, coming from small-scale test mining activities 40 years ago, show irrefutable evidence that the environment has still not recovered, and the impact of mining is so extensive that it will take unknown decades for these environments to recover.
The ISA recently responded to a resolution proposed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) that called for a pause on deep-sea mining until more scientific data is available. However, the ISA has yet to commit to a definitive moratorium. Given the ecological stakes, the precautionary principle should take precedence, delaying deep-sea mining until environmental risks are fully understood and stringent, enforceable protections are in place.
Deep-sea mining presents a direct challenge to UNCLOS’ core environmental protections. With no clear definition of ‘serious harm,’ no established threshold standards, and no comprehensive management framework, proceeding with mining operations would be reckless. The ISA must prioritize environmental protection over economic interests by ensuring scientifically informed regulations are in place before any exploitation is approved. A moratorium remains the only responsible path forward to safeguard the deep sea for future generations.