Everyone is aware of off-shore oil rigs; these platforms drill down underwater for valuable resources just off the coast of many nations. But, deep in the ocean beyond national aquatic boundaries lies an abundance of natural resources such as gold, copper, manganese and zinc. State-sponsored companies are surveying and staking claim to these resources, but so far, no one has been granted approval to begin extracting them.
The International Seabed Authority (ISA) — the governing body that oversees all activities in international waters (known as the Area) — is currently developing regulations for the extraction of marine minerals. Rules and procedures that govern liability for damage arising from mining activities will be crucial aspect of this regulatory framework.
Who is responsible when an environmental disaster occurs as a result of mining activities?
To assist in clarifying these legal issues of responsibility and liability, the Centre for International Governance Innovation (CIGI), the Commonwealth Secretariat and the Secretariat of the International Seabed Authority established the Liability Issues for Deep Seabed Mining project. Under the direction of Neil Craik (CIGI), Hannah Lily (Commonwealth Secretariat) and Alfonso Ascencio-Herrera (ISA Secretariat), this project seeks to provide a foundational understanding of key questions surrounding the further development of liability rules.
When we talk about deep seabed mining, what we’re really talking about is the exploitation of mineral resources — in this case, different kinds of minerals embedded in the seabed or sitting on the seabed. And this is an area of what we call beyond national jurisdictions, so this is that part of the ocean that doesn’t form part of any state but rather is in the global commons. What’s currently happening now is there’s a regime for exploration, so there’s quite a number of states that are assessing the profitability and feasibility of accessing minerals. But they’re moving quite quickly — probably in the next two or four years — to actually begin exploitation, so that is actually extracting the minerals. This is an environmentally risky activity, and it involves very large ships, underwater activity, and so presents a number of both environmental risks but also possible risks to other interests in the deep ocean.
So, at that point, it was identified that there was a need that this issue be discussed at the level of a legal working group, given the complexity of the issues involved.
That was really one of the driving reasons why the International Seabed Authority and CIGI felt it was important to create a working group to develop the expertise to look into, in a deep way, these particular issues.
So, what we hope to do in this group is to look at one very small portion, but very important around liability issues, basically, if something goes wrong, who’s responsible to compensate or remediate?
So, if you think about it in a domestic context, if you have a mine on land and there’s an incident, we have very dense domestic law, negligence law, nuisance law that would compensate someone who suffered as a result of a mining accident. We don’t have those laws in the middle of the ocean, so we actually have to develop those laws.
And the outcome would be that the result of the working group will go to the commission, and the commission will consider it and decide as to what to do with it.
We’re looking to assist; we’re not looking to come up with very concrete conclusions or even recommendations. We want to explore options and implications and try and sort of lay them out, ready for the LTC to take it to the next stage.
Effectively, there needs to be some policy and political direction at this stage, and we’re really providing the foundation to enable the International Seabed Authority to do that.
I’m really struck by the quality of the discussions, and I’m sure that these will provide a good input for the commission for them to pursue their work.