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Suhr, Lahrs --- "Environmental protection in deep seabed mining: international law and New Zealand's approach" [2008] NZJlEnvLaw 5; (2008) 12 NZJEL 97

Last Updated: 15 February 2023

97

Environmental Protection in

Deep Seabed Mining: International Law and New Zealand’s Approach

Lahrs Suhr*

In 2008 the Government agreed that the Ministry for the Environment should instruct the Parliamentary Counsel Office to draft an exclusive Economic Zone Environmental Effects Bill. A regime that increases environmental protection for the New Zealand exclusive economic zone (“EEZ”) would be welcome, but in relation to seabed mining a stronger regime is needed than has been envisaged. The mining may affect abyssal plains, seamounts, and hydrothermal vents. The proposed regime does not live up to the high standards set in relation to the mining of the deep seabed in international legal and institutional arrangements under the United Nations Convention for the Law of the Sea 1982 and its associated 1994 Implementation Agreement. Marine ecosystems harbour an immense and valuable biodiversity, which requires effective protection. The policies in the proposed legislation will need to be tightened considerably in order to ensure such protection. The precautionary approach should be applied with rigour, including the application of a conservation-oriented approach that incorporates the establishment of marine protected areas. Exploitation should be restrained in the interests of future generations, and strict liability should be imposed for environmental damage.

* This paper has been written in the Public International Law course of the LLM programme of The University of Auckland in 2008. The author would like to thank Caroline Foster for her great support.

98 New Zealand Journal of Environmental Law

1. INTRODUCTION

The New Zealand Government is currently in the process of drafting new “EEZ legislation” which attempts, inter alia, to regulate the environmental effects of seabed mining. This paper will try to analyse New Zealand’s future mining regime by means of a comparison with the international legal regime for seabed mining, and assess whether it will provide sufficient protection of the deep sea environment. In order to do so, three main types of deep seabed mining will be considered — namely, polymetallic nodule mining, cobalt rich crust mining, and massive sulphide deposit mining. The technical and economic aspects of the respective types of mining will be discussed, followed by a description of the biodiversity which is to be found at future mining sites. The need for strict protection of the deep sea environment is then argued, by pointing out how deep seabed mining is supposed to threaten the marine biota and why mankind cannot afford such a risk. Next is an outline of how international law divides the oceans into areas of national and international juridical competence, followed by an analysis of the international deep sea mining regime and New Zealand’s current and future mining regime. Finally, certain principles of international environmental law are utilised to provide recommendations on how a mining regime should reflect the risks of deep sea mining in an adequate way.

2. MINING IN THE DEEP SEA

Seabed mining is a complex undertaking in the hostile conditions of the “deep sea”.¹ No light penetrates ocean layers which lie in depths below 1000 metres, and the pressure increases by 1 atmosphere for every 10 metres of depth.² The landscape of the ocean floor is uneven, abounding in seamounts, hills, ridges, troughs, scarps, outcrops, boulders, and other irregularities and obstacles.³ The sea surface is affected by waves, ocean swells, currents, and sometimes storms and cyclones, while beneath the waves different types of currents are encountered at various depths of the water column.⁴ In order to resist these harsh physical conditions, mining and transportation equipment must be adequately

1. The term “deep sea” shall refer to the aphotic (lightless) depths of the ocean below 1000 m.
2. “Going Deep”, The Economist, 21 May 1998, 1. Thus at 1000 m the pressure is about 100 times what it is on the surface; in the Mariana Trench at 11,000 m the pressure is 1100 atmosphere, “an equivalent of 50 jumbo jets weighing down on a human”.
3. International Seabed Authority (“ISA”), Background Document, “Workshop on Polymetallic Nodule Mining Technology — Current Status and Challenges Ahead” (ISA, Kingston, Jamaica, 2008) 5.
4. Ibid.

constructed. As this is an expensive task, economic feasibility of deep seabed mining is imperative. The main factors which determine this feasibility are the onshore availability of minerals, demand for those minerals, and technological innovation which might lead to lower recovery costs.⁵

Polymetallic nodules, cobalt-rich crusts, and “massive sulphide deposits” are important mineral resources of the deep sea. Polymetallic nodules are golf- to tennis-ball-sized rock concretions, which are widely scattered over the abyssal plains at depths beyond 4000 metres.⁶ They contain manganese, nickel, iron, copper, and cobalt; and possibly also molybdenum, vanadium, and titanium.⁷ Cobalt-rich ferromanganese crusts, in turn, have formed over millions of years on seamounts, ridges, and plateaus at depths between 400–4000 metres, where sediment does not accumulate.⁸ They are a potential source for — besides cobalt

— many other metallic and rare earth elements such as titanium, cerium, nickel, platinum, manganese, phosphorus, thallium, tellurium, zirconium, tungsten, bismuth, and molybdenum.⁹ Massive sulphide deposits again are mainly found around and in the stockwork below hydrothermal vents¹⁰ (also called “black/

5. Lindsay Parson, “Evaluation of the Non-Living Resources of the Continental Shelf Beyond the 200-mile Limit of the World’s Margins” in ISA, Minerals Other than Polymetallic Nodules of the International Seabed Area — Proceedings of a Workshop held on 26–30 June 2000 in Kingston, Jamaica (ISA, Jamaica, 2004), Vol II, Ch 17, 668.
6. Peter Rona, “Metallogenesis of Marine Mineral Deposits” in ISA, Minerals Other than Polymetallic Nodules of the International Seabed Area — Proceedings of a Workshop held on 26–30 June 2000 in Kingston, Jamaica (ISA, Jamaica, 2004), Vol I, Ch 1, 83. For the formation of nodules see John Murphy, “Deep Ocean Mining: Beginning of a New Era” (1976) 8 Case W Res J Int’l L 46; Dorrik Stow, Encyclopedia of the Oceans (Oxford University Press, 2004) 114.
   7. John Yates, Daniel Spagni & Jim Keane, “Marine Mining: Birth of a New Industry” (1986) Endeavour New Series, Vol 10, no 1, 47. Those are the “economically significant minerals”; ibid, at 45.
8. J R Hein, “Cobalt-rich Ferromanganese Crusts: Global Distribution, Composition, Origin and Research Activities” in ISA, Minerals Other than Polymetallic Nodules of the International Seabed Area — Proceedings of a Workshop held on 26–30 June 2000 in Kingston, Jamaica (ISA, Jamaica, 2004), Vol I, Ch 5, 188; see also ISA, “Cobalt-rich Crusts” [brochure], (ISA, Kingston, Jamaica, March 2008), at <www.isa.org.jm/files/ documents/EN/Brochures/ENG9.pdf> (at 13.08.2008) 1. The thickest crusts, which are also richest in cobalt, occur in depths of about 800–2,500 m.
   9. ISA brochure, “Cobalt-rich crusts”, supra note 8, at 2.
10. Hydrothermal vents exist at divergent tectonic plates “when seawater seeps down through the cracks into the ocean crust. Where it comes into contact with hot basaltic lava (near 1000°C/1800°F), there is a violent exchange of minerals and heat. Superheated water, enriched in [...] metals, returns to the seafloor. On contact with the near freezing seawater a variety of minerals precipitate rapidly out of the solution, building up tall, chimney like structures”; Stow, supra note 6, at 212.

white smokers” depending on their plume) at water depths up to 3,700 metres.¹¹ They contain iron, copper, zinc, silver, and gold in variable concentrations.¹²

The metals obtainable from nodules and crusts — such as manganese, cobalt, and nickel — are primarily used in the steel industry. Cobalt is further needed in the aerospace, communications, electrical, engine, and tool manufacturing industries. Nickel is also used in chemical plants, petroleum refineries, electrical appliances, and motor vehicles.¹³ Examples of high-tech products containing these metals are super-alloys, photovoltaic and solar cells, superconductors, advanced laser systems, catalysts, fuel cells, and powerful magnets, as well as cutting tools.¹⁴ The precious metals of massive sulphide deposits might be used as monetary reserves or manufactured into jewellery, but they can also be used for industrial and medical appliances. In the following overview, the technical and economic aspects of nodule mining, crust mining, and massive sulphide deposit mining are discussed in more detail.

2.1 Technical and Economic Aspects of Nodule Mining

Since the 1970s marine engineers have conceived three basic design concepts for nodule mining. Nodules can be picked up with a dredge-type collector unit and subsequently lifted through a riser-pipe (hydraulic mining system). Nodules might also be collected with a bucket-type collector unit; the bucket is then dragged up with a rope or a cable (continuous line bucket mining system). Dredge-type collectors might also mine the nodules and then ascend by the force of their own buoyancy (modular or shuttle mining system).¹⁵ However, since the 1990s only variations of the hydraulic mining system have been further pursued. Recent demonstrations of such systems have shown that it is possible to mine and haul nodules from the seabed in water depths of 5,200 metres.¹⁶ Nevertheless, there are still a vast number of technical problems to be solved

• — for example, keeping a steady ship position, since a vessel cannot anchor five kilometres above the sea floor, and making sure that the pipe does not break or that the recovery vehicle is not lost or permanently stuck on the ocean floor.¹⁷

11. Massive sulphide deposits have also been found in the area of hot brine pools, e.g. in the “Atlantis Deep” in the Red Sea; Stow, supra note 6, at 212.
12. Rona, supra note 6, at 76, 78, 120. The term “massive” means that such deposits contain at least 60 per cent metallic sulphide minerals.
13. Hein, supra note 8, at 231.
14. ISA brochure, “Cobalt-rich crusts”, supra note 8, at 3. 15 ISA, supra note 3, at 6.
16. Ibid, at 1.
17. UN Convention on the Law of the Sea Secretariat, “The United Nations Convention on the Law of the Sea (A historical perspective)”, at <http://www.un.org/Depts/los/convention_ agreements/convention_-historical_perspective.htm#Deep%20Seabed%20Mining> (at 13.08.2008).

The development of an integrated nodule mining system is thus still considered to be at a pre-pilot scheme stage.¹⁸

The technical infeasibility of commercial nodule mining might be owed to the fact that commercial interest has stalled at various times,¹⁹ at latest by the early 1990s, when the discovery of large nickel deposits in Canada and the break-up of the Union of Soviet Socialist Republics introduced large quantities of mineral resources to the world’s markets.²⁰ Commercial interest might nonetheless revive, as the ongoing industrialisation of China and India and the reindustrialisation of the Russian Federation have resulted in an increased demand for cobalt, nickel, copper, and manganese. Market prices for copper have more than tripled since 2002; those for nickel and cobalt have risen sixfold since 2001. Also, the price for manganese has more than doubled in the same period.²¹ For the future, especially, nickel prices are considered a major factor in the profitability and attractiveness of investments in polymetallic nodule mining ventures. Current studies indicate that, while there are no large land- based deposits of nickel sulphides remaining to be developed, demand for nickel will further increase.²²

While nodules are widely scattered over all ocean floors, the area containing the highest density of nodules, and thus the area of maximum commercial interest for polymetallic nodule mining, lies in international waters within the Clarion-Clipperton Zone, southeast of the Hawaiian Islands.²³ Nodules in this area contain typically about 26 per cent manganese, 7 per cent iron, 1.3 per cent nickel, 1.1 per cent copper, and 0.27 per cent cobalt.²⁴

2.2 Technical Economic Aspects of Cobalt-rich Crust Mining

Crust mining is still in its infancy. It is considered technologically more difficult than nodule mining, as crusts are weakly to strongly attached to substrate rock,

18. ISA, supra note 3, at 7.
19. Already in the late 1970s economic analyses had indicated that private nodule mining of that time was unlikely to produce the internal rates of return needed for such risky investments; see Charles J Johnson & James M Otto, “Manganese Nodule Project Economics” in Resources Policy (Butterworths & Co Ltd, March 1986) 17.
20. ISA, supra note 3, at 4.
21. Ibid, at 5.
22. ISA, Report of the Secretary General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea, ISBA/14/A/2 (ISA, Kingston, Jamaica, 2008) 18.
    23. Craig R Smith et al (eds), Biodiversity, species ranges, and gene flow in the abyssal Pacific nodule province: predicting and managing the impacts of deep seabed mining (ISA, Technical Study No 3 [Kaplan-Project], Kingston, Jamaica, 2008) 4.
    24. R R Churchill & A V Lowe, The Law of the Sea (3rd ed, Manchester University Press, 1999) 223.

while nodules are found on the surface partly buried in a soft-sediment substrate. Successful mining also requires that the crust is recovered without too much substrate attached, as this would substantially dilute the ore quality.²⁵ In the first step, prospective miners will have to identify and evaluate possible mining sites. Later, crusts of a suitable thickness might be mined by manned submersibles or remotely operated vehicles, possibly using “articulated cutters that would allow the crust to be fragmented while minimising the amount of substrate rock collected”.²⁶ The resulting slurry could then be pumped via suction pipes to a mining vessel.

The market price for cobalt has been highly volatile in the last decades, since a significant amount of the world’s supply is coming from politically unstable countries, such as the Democratic Republic of the Congo (formerly Zaire).²⁷ Crust mining might take off when either cobalt prices stabilise on a higher level, or demand in other rare crust metals increases significantly.

2.3 Technical and Economic Aspects of Massive Sulphide Deposits Mining

Current ambitions to mine the seabed focus on massive sulphide deposits, since they might contain high concentrations of base and precious metals which are densely located around hydrothermal vents. Provided that the mining site has a sufficient size and tonnage, and is close to land (200 nm or 12 nm zone), massive sulphide mining is supposed to have certain economic advantages over land mining, as no specific infrastructure is required, no shafts or other mine development is needed, no acid mine drainage is expected, and no waste disposal is necessary.²⁸ Because of this commercial attractiveness, massive sulphide mining has recently even seen involvement of the private sector.²⁹ Two companies, Nautilus Minerals Inc and Neptune Minerals Inc, are specialising in mining those deposits and have both obtained exploration licences in the

25. ISA brochure, “Cobalt-rich crusts”, supra note 8, at 3. 26 Hein, supra note 8, at 229–30.
27. In 1979 (the former) Zaire supplied more than 50 per cent of the world’s demand in cobalt. In 2005 and 2006, the Democratic Republic of Congo produced 22,000 tonnes of cobalt, amounting to almost 40 per cent of the world’s supply. The country has been shattered by several (civil) wars in the last decade; see US Geological Survey fact sheet, at <http:// minerals.usgs.gov/minerals/pubs/commodity/cobalt/cobalmcs07.pdf> (at 15.08.2008); and ISA brochure, “Cobalt-rich crusts”, supra note 8, at 3.
28. Peter Herzig, S Petersen & Mark D Hannington, “Seafloor Massive Sulphides and their Resource Potential” in ISA, Minerals Other than Polymetallic Nodules of the International Seabed Area — Proceedings of a Workshop held on 26–30 June 2000 in Kingston, Jamaica (ISA, Jamaica, 2004), Vol I, Ch 2, 128.
29. Until 2000 only the “Atlantis II Deep” sulphide deposit had been evaluated by a commercial company (Preussag, Germany); ibid, at 126.

exclusive economic zone (“EEZ”) of Papua New Guinea, New Zealand, and various Pacific island States.³⁰

The technical and commercial feasibility of massive sulphide mining seems to be a given. In 2004, Worley Parsons, a consulting engineer for Nautilus Minerals Inc, had completed a prefeasibility study, which showed that using two “marinised” coal-mining machines and a riser pipe system for lifting the ore to a semi-submersible platform could provide a lucrative way of harvesting the seabed minerals.³¹ This approach can still be found in Nautilus’s current plans to mine the seabed.³² According to Nautilus’s former chief executive officer David Heydon, the key to economic success lies in the ability to redeploy the mining equipment quickly over many deposits in different locations.³³ Regarding the recent activities of Nautilus Minerals, the Secretary-General of the International Seabed Authority stated in his 2008 report:³⁴

The current focus of Nautilus Minerals activities is the exploration, mine planning and development activities associated with its Solwara 1 project, believed to contain high-grade deposits of copper, gold and zinc, which is situated 50 kilometres north of Rabaul, the main port of East New Britain Province in Papua New Guinea, at depths around 1,600 meters. In 2007, Nautilus Minerals announced that, subject to the permission and approval of the Government of Papua New Guinea, development activities at Solwara 1 would be expected to commence in 2009 and first concentrate sales would be expected in 2010 from an onshore processing facility.

30. Neptune Minerals Inc holds exploration licences totalling more than 278,000 square kilometres in the EEZ of New Zealand, Papua New Guinea, the Federated States of Micronesia and Vanuatu. Further exploration applications are pending, covering 434,000 square kilometres in the territorial waters of New Zealand, Japan, Commonwealth of Northern Mariana Islands (US), Palau and Italy; see <www.neptuneminerals.com> (at 12.08.2008); Nautilus Minerals Inc holds 360,000 square kilometres of tenement licences and exploration applications in the EEZ and territorial waters of Papua New Guinea, Fiji, Tonga, the Solomon Islands and New Zealand. See ISA, ISBA/14/A/2, supra note 22, at 22–23; <www.nautilusminerals.com> (at 14.09.2008).
31. “Nautilus plans ocean-bed mining”, Mining Magazine (September 2005) 9.
32. The cutters are expected to have a peak production of 6000 tonnes per day; see Nautilus Minerals Inc’s presentation “Nautilus Corporate and Project Update” of June 2008, at

<http://www.nautilusminerals.com-/i/pdf/Presentation_June2008.pdf> and <http://www. nautilusminerals.com/s/Projects-Solwara.asp> (at 07.08.2008); see also Mark Schrope, “Digging Deep” in Nature, Vol 447, 17 May 2007, 246; “Treasure on the Ocean Floor”, The Economist (US) (2 December 2006) 381.8506; Jochen Halfar & Rodney M Fujita, “Danger of Deep Sea Mining”, Science, Vol 316, no 5827 (The American Association for the Advancement of Science, Washington, 18 May 2007) 987.

33. See his statement in “Nautilus plans ocean-bed mining”, supra note 31, at 9. 34 ISA, ISBA/14/A/2, supra note 22, at 28.

Figure 1: Nautilus’s mining system.³⁵

Neptune Minerals, in turn, recently completed its second and third explo- ration programmes — Kermadec 07 and Colville-Monowai 07 — offshore New Zealand. During Kermadec 07, Neptune Minerals discovered two new hydrothermally inactive deposit zones over which the company plans to lodge a mining licence application.³⁶ In December 2005, Neptune Minerals had already concluded their first commercial exploration drilling programme (Kermadec 05), during which 23 core samples and 29 seafloor samples were collected. The analysis of the core samples, sediments, and rocks gathered revealed an average metal content of 11.2 g/t gold, 122 g/t silver, 8.1% copper, 5% zinc, and 0.5% lead.³⁷ Preliminary metallurgical tests indicated that such material could be processed using standard onshore sulphide separation processes.³⁸

Massive sulphide mining might therefore take off very soon. If those high concentrations prove to be on a large-scale basis, the seabed might even face a modern “gold rush”.³⁹

Figure 2: (facing page) Distribution of sulphide deposits.⁴⁰

35 As presented in “Nautilus Corporate and Project Update” of June 2008, supra note 32. 36 “Neptune Minerals”, at <http://www.neptuneminerals.com/> (at 29.09.2008).

37. On concentrations in general, see Herzig, Petersen & Hannington, supra note 28, at 123, 129.
38. “Neptune Minerals — Project Kermadec”, at <http://www.neptuneminerals.com/Neptune- Minerals-Kermadec.html> (at 29.09.2008).
39. William J Broad, “First Move Made to Mine Mineral Riches of Seabed”, New York Times, 21 December 1997, at <http://query.nytimes.com/gst/fullpage.html> .
40. From <http://www.isa.org.jm/en/scientific/maps> (at 15.08.2008).

3. THE MARINE ECOSYSTEMS OF THE DEEP SEA AND THE IMPACT OF SEABED MINING

3.1 Biodiversity of the Deep Sea

The ocean, and especially the deep sea, is still an unknown place for mankind.⁴¹ The bare knowledge that life exists in these abyssal depths is quite recent. In the mid 19th century there was an ongoing debate among scientists whether life could even exist in depths greater than 600 metres. The Challenger Expedition from 1872 to 1876 settled this, as scientists covered 69,000 nautical miles and hauled samples from the seafloor at 240 different locations, which, in turn, ultimately proved that there is indeed life in the deep sea.⁴² However, it was not until the late 1960s that there was evidence of a greater diversity of life in the dark zone. Today, scientists consider that at some spots there are possibly “more than enough species to rival the celebrated diversity of tropical rainforests”⁴³. Moreover, life has been found in even the most remote places, such as at the bottom of deep sea trenches.⁴⁴

As we humans are used to an environment that constantly changes, it is hard for us to picture the characteristics of the deep sea as an environment where change barely happens. While winds and waves constantly stir and mix the upper layers of the oceans, they do not affect the lower water layers (the abyssopelagic zone; in deep sea trenches also: hadalpelagic zone) and the subjacent seafloor (the benthic zone).⁴⁵ Thus, these water layers and the seafloor are relatively stable environments regarding their physical and chemical conditions (such as salinity, temperature, density, influence of light penetration).⁴⁶ Marine biota is adapted to such a homogenous environment that in general is further characterised by low rates of productivity, growth, respiration, reproduction, recruitment, and bioturbation.⁴⁷

41. Ellen J Prager with Sylvia A Earle, The Oceans (McGraw-Hill, New York, 2000) xii.
42. David Kenneth Leary, International Law and the Genetic Resources of the Deep Sea

(Koninklijke Brill NV, Leiden, The Netherlands, 2007) 13–14.

43. C L Van Dover, The Ecology of Deep-Sea Hydrothermal Vents (2000) 8, from Leary, supra note 42, at 14.
44. In March 1996 the Japan Agency for Marine-Earth Science and Technology sampled some 3000 microbial strains from the deepest spot of the earth, the bottom of the Mariana Trench, at a depth of 11,034 m. See <http://www.jamstec.go.jp/jamstec-e/bio/seaex/mariana.html> (at 08.08.2008).
45. Stow, supra note 6, at 72.
46. “The current view [of the deep sea] is of an ecosystem relatively homogenous in space and time, punctuated by biogenic pulses of disturbance of organic enrichment at scales ranging from centimetres to thousands of kilometres”; see Adrian G Glover & Craig R Smith, “The Deep-Sea Floor Ecosystem: Current Status and Prospects of Anthropogenic Change by the Year 2025”, Environmental Conservation 30(3) (Foundation for Environmental Conservation, 2003) 221.
47. Ibid, at 220.

Figure 3: Water layers of the ocean.⁴⁸

The actual biodiversity of a deep sea ecosystem⁴⁹ is, however, highly dependent on the topography and features of the seafloor. As deep seabed mining might take place on abyssal plains (nodules), seamounts (crusts), and hydrothermal vents (massive sulphides), the biodiversity of these places shall be discussed further. For this purpose the term “biodiversity” meaning “biological diversity” shall be defined according to Article 2 of the Convention on Biological Diversity⁵⁰ as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems”. “Biodiversity” therefore refers to the “variability of life in all forms, levels and combinations”.⁵¹

48. From <http://censeam.niwa.co.nz/outreach/censeam_cruises/macridge/glossary> (at 15.08.2008).
49. Ecosystems are “a subset of nature’s global economy, a local or regional system of plants, micro-organisms, and animals working together to survive. These are the living (biotic) components of an ecosystem and their functioning in this way provides the services upon which life on earth depends.” Patricia Birnie & Alan Boyle, International Law and the Environment (2nd ed, Oxford University Press, New York, 2002) 547.
50. See infra Part 5.
51. Oceans and the Law of the Sea: Report of the Secretary-General, Sixtieth Session of the General Assembly, UN Doc A/60/63/Add.1 (16 July 2005) 3.

• 3.1.1 The biodiversity of abyssal plains

In combination with continental slopes, abyssal plains are the largest seabed habitat of the oceans.⁵² Marine life found on the abyssal plains ranges from amphipods, sea stars, sea urchins, and shrimps to deep sea sharks. Most of them hover above the deep seabed and feed on dying organic matter that sinks through the water column and eventually reaches the abyssal seafloor.⁵³ The main part of the biodiversity is, however, found in the deep seabed. Among other fauna, in particular, polychaete worms, nematode worms, and protozoan foraminifera (giant single-celled organisms) have been found in an abundant variety of species.⁵⁴ They are not equally distributed over the seafloor, as some species might only be found in a certain location.⁵⁵ Also, many species are new to science. Biologists of the Census of the Diversity of Abyssal Marine Life (“CeDAMar”) project, presently discovering the biodiversity of abyssal plains, report that “in any sample taken at any spot of the deep sea, at least half of all animals have never been seen before by anybody”.⁵⁶ As polymetallic nodules are the only hard substrate in the soft sediment layers of the abyssal plains, they host a specific nodule fauna, which differs from the sediment fauna.⁵⁷

• 3.1.2 The biodiversity of seamounts

Seamounts are undersea mountains of tectonic and/or volcanic origin.⁵⁸ Most seamounts have been found to harbour an abundance of — often endemic

• — marine flora and fauna-like algae, sea fans, sponges, brittlestars, corals, crustaceans, molluscs, and several species of fish.⁵⁹ At these places, local

52. They account for an area equivalent to 90 per cent of the total global ocean. The whole deep seafloor accounts for 60 per cent of the Earth’s solid surface; ibid, at 7; Glover & Smith, supra note 46, at 220.
53. Stow, supra note 6, at 213.
54. Smith et al (eds), supra note 23, at 1, 6.
55. Ibid, at 29.
56. According to their homepage <www.cedamar.org> (at 29.08.2008). The CeDAMar project is a branch of the current “Census of Marine Life” project, which is “a global network of researchers in more than 80 nations engaged in a 10-year scientific initiative to assess and explain the diversity, distribution, and abundance of life in the oceans”. See <http://www. coml.org/aboutcoml.htm> (at 29.08.2008).
57. Lauren S Mullineaux, “Organisms living on manganese nodules and crusts: distribution and abundance at three pacific sites”, Deep-Sea Research, Vol 34, no 2 (Pergamon Journals Ltd, UK, 1987) 165; Julie Veillettea et al, “Ferromanganese nodule fauna in the Tropical North Pacific Ocean: Species richness, faunal cover and spatial distribution”, Deep Sea Research Part 1: Oceanographic Research Papers, Vol 54, no 11 (Elsevier Ltd, November 2007)

1912.

58. Report of the Secretary-General, UN Doc A/60/63/Add.1, supra note 51, at 8.
59. Raymond R Wilson, Jnr & Ronald S Kaufmann, “Seamount Biota and Biogeography”

upwelling transports nutrients into the euphotic zone, which, in turn, results in zooplankton abundance in the waters over seamounts that provides the basis for this rich marine life.⁶⁰ The communities which feed on the plankton ultimately attract larger predators, such as sharks, tuna, billfish, turtles, seabirds, and marine mammals.⁶¹ Therefore, the feeding grounds provided by seamounts can be considered as oases of life in the deserts of the open ocean. They might even function as “stepping stones” for certain coastal fish, marine mammals, and seabirds which cross the oceans.⁶² However, despite the vast number of seamounts, knowledge about their ecosystems is still limited.⁶³

• 3.1.3 The biodiversity of hydrothermal vents

Hydrothermal vents exist at divergent tectonic plates where superheated miner- alised water effuses the seafloor.⁶⁴ The fauna in the area of active hydrothermal vents includes clams, mussels, sea anemones, crabs, tube worms, shrimps, fishes, and “bacteria”,⁶⁵ most of them new to science.⁶⁶ Remarkably, hydrothermal vent ecosystems thrive on chemosynthesis — i.e. the source of life is not sunlight, but energy derived from chemical compounds.⁶⁷ Furthermore, communities on hydrothermal vents succeed in an extremely hot and toxic environment.⁶⁸ The life-giving influence of a hydrothermal field on its environment is widespread: hydrothermal plumes are associated with upper zooplankton communities that are supported by both ascending and descending organic matter.⁶⁹ As on abyssal

in Barbara H Keating et al (eds), Seamounts, Islands, and Atolls (American Geophysical Union, Washington DC, 1987) 355; see also the homepage of CenSeam (A Global Census of Marine Life on Seamounts) project, another branch of “Census of Marine Life”, at

<http://censeam.niwa.co.nz/censeam_about> for a search for species found at seamounts consider the database at <http://seamounts.sdsc.edu> (both at 29.08.2008).

60. George W Boehlert, “A Review of the Effects of Seamounts on Biological Processes” in Barbara H Keating et al (eds), supra note 59, at 320, 322.
61. Report of the Secretary-General, UN Doc A/60/63/Add.1, supra note 51, at 8.
62. “About Seamounts/Introduction”, at <http://seamounts.sdsc.edu/> (at 01.09.2008).
63. The global number of seamounts is estimated to be 100,000, but of these so far only 358 have been biologically sampled; see <http://censeam.niwa.co.nz/science/censeam_science_ results> (at 29.08.2008).
64. Supra note 10.
65. Some of these bacteria might not actually even be bacteria but a new form of microbial life (called “archea”), as their DNA is completely unrelated to previously known genes; Prager with Earle, supra note 41, at 258.
66. Stow, supra note 6, at 212; ibid, at 256.
67. Ibid.
68. Ibid, at 258.
69. Salvatore Arico & Charlotte Salpin, “Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects” (Institute of Advanced Studies, United Nations University (UNU/IAS), Tokyo, 2005), at <http://www.ias.unu.edu/sub_page.aspx?c atID=111 & ddlID=169> (at 02.09.2008) 11.

plains and seamounts, the biodiversity of hydrothermal vents is locally unique. Scientists report that “every seafloor hydrothermal field examined to date has some species that are not found in any other field”.⁷⁰

3.2 The Importance of Deep Sea Ecosystems and the Threats Posed by Seabed Mining

Deep sea ecosystems are invaluable to humankind. As they are an integral part of the marine biodiversity, they are partly responsible for the creation of one third of the atmospheric oxygen and thus play an important role in the regulation of the global climate.⁷¹ Seamount communities host aggregations of commercially valuable fish, such as orange roughy and tuna, and are therefore important fishing grounds.⁷² Hydrothermal vent ecosystems are in the focus of the biochemical and medical industry because of the distinct features of their inhabitants.⁷³ Pharmaceuticals derived from such marine biota might have the potential to combat cancer, HIV/AIDS, inflammatory diseases, obesity, diabetes, and neurological ailments.⁷⁴ Beyond medical applications, scientific research as well as “bioprospecting”⁷⁵ might also unlock genetic resources and compounds that are of value to the food⁷⁶ and industrial⁷⁷ sectors.⁷⁸ Apart from that, research at hydrothermal vent sites has fundamental significance, as hydrothermal vent ecosystems might well be the “habitat of the origin of life”. Knowledge obtained at hydrothermal vent sites is thus used in the development of NASA programmes to search for life in outer space.⁷⁹ Because of this treasure trove the progress of mankind into the deep sea should be conducted extremely carefully. The risk of this progress has been described best in Principle 3 of the Stockholm Declaration:

70. Rona, supra note 6, at 88.
71. Report of the Secretary-General, UN Doc A/60/63/Add.1, supra note 51, at 3.
72. M R Clark, “Fisheries for Orange Roughy (Hoplostethus atlanticus) on Seamounts in New Zealand”, Oceanologica Acta, Vol 22, no 6 (Elsevier BV, 1999), 593.
73. ChEss (Biogeography of Deep-Water Chemosynthetic Ecosystems) project, a further branch of “Census of Marine Life”, at <http://www.noc.soton.ac.uk/chess/science/sci_project.php> (at 01.09.2008).
74. Report of the Secretary-General, UN Doc A/60/63/Add.1, supra note 51, at 23.
75. Bioprospecting might be defined as the (commercial) “search for, and exploitation of, valuable compounds from genetic resources”; see Arico & Salpin, supra note 69, at 7.
76. For example, anti-freeze proteins and dietary supplements; see David Leary, “Bioprospecting in the Arctic” (Institute of Advanced Studies, United Nations University (UNU/IAS), Tokyo, 2008), at <http://www.ias.unu.edu/sub_page.aspx?catID=111 & ddlID=169> (at 08.09.2008)

12.

77 For example, bioremediation and other pollution control technologies; see ibid. 78 Arico & Salpin, supra note 69, at 8.

79 ChEss project, supra note 73.

Man has constantly to sum up experience and go on discovering, inventing, creating and advancing. In our time, man’s capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment.

However, the value of the deep sea biodiversity does not merely depend on its worth as a resource for mankind. Life in the deep sea — as all life — has also a value in itself.⁸⁰

As deep sea ecosystems are still poorly understood, the impact of seabed mining is not exactly predictable. Nonetheless, it may be assumed that, since deep sea ecosystems are adapted to a homogenous environment, they might be vulnerable to even slight changes caused by the introduction of light, noise, vibration, waste, thermal fluctuation, and physical disturbance.⁸¹ As a result, “wrongly or heedlessly applied” seabed mining will certainly lead to the extinction of species, but the whole dimension is so far unpredictable due to limited knowledge of the taxonomy, species structure, biogeography, and basic natural history of deep sea animals.⁸²

In the following, the environmental threats posed by nodule mining, crust mining, and massive sulphide mining will be discussed in detail.⁸³ By doing so, extensive consideration will be given to the impact of nodule mining, whereas impacts of crust mining and massive sulphide mining will be touched on more briefly. This reflects the fact that the bulk of environmental studies so far have been made in respect of nodule mining. However, one must bear in mind that even these studies lack sufficient data to assess the impacts of nodule mining accurately.⁸⁴

• 3.2.1 Threats posed by nodule mining

The direct disruption of the seafloor by the nodule mining machine is likely to be the main threat on the abyssal biota. The removal of the nodules would

80. See also the Preamble of the Convention on Biological Diversity.
81. Communities at hydrothermal vents, for example, have been found to be particularly sensitive to changes in the hydrothermal flux temperature; see Arico & Salpin, supra note 69, at 12.
82. Glover & Smith, supra note 46, at 219.
83. This paper will only deal with the threats imposed by the actual mining process itself; however, considerable environmental impacts are also to be expected from offshore or onshore processing of the minerals, and transportation of the minerals to shore.
84. ISA, ISBA/14/A/2, supra note 23, at 16; E D Brown, Sea-bed Energy and Minerals: The International Legal Regime, Vol 2, “Sea-bed Mining” (Martinus Nijhoff Publishers, 2001) 380.

cause habitat loss and local extinction of the specific nodule fauna.⁸⁵ Also, the distinct fauna which lives in the sediment layers would suffer. A study on the environmental impacts of nodule mining expects a mortality rate of 95–100 per cent for the living organisms which are found in exploitation strips.⁸⁶ Recovery of the fauna is likely to take decades, if not, in the case of nodule fauna, millions of years.⁸⁷ As species extinction of known seabed fauna is regarded to be possible,⁸⁸ scientists favour the designation of marine protected areas.⁸⁹

The cutting and penetrating of the seabed will further result in the formation of a benthic plume in the water column near the seafloor, which will alter the physico-chemical conditions of the area.⁹⁰ Heavier particles of the plume will sink rapidly to the floor, and bury both the biota and its food resources in the adjacent area, which might also have a deleterious effect.⁹¹ Finer material that remains in the water column will form a cloud which is supposed to disturb the sensory functions of living organisms and injure filter feeders by clogging their feeding apparatus.⁹² A single nodule mining operation is projected to directly disrupt 300–800 square kilometres⁹³ of seafloor per year and disturb the sediment-dwelling fauna over an area 5–10 times that size due to redeposition of suspended sediments.⁹⁴ In total, economically viable nodule mining will likely be at scales of tens to hundreds of thousands of square kilometres.⁹⁵

85. Veillettea et al, supra note 57, at 1912; Report of the Secretary-General, UN Doc A/60/63/ Add.1, supra note 51, at 42.
86. Stig Berge, Jan Magne Markussen & Gudmund Vigerust, Environmental Consequences of Deep Seabed Mining — Problem Areas and Regulations (The Fridtjof Nansen Institute, Lysaker, Norway, 1991) 33.
87. Glover & Smith, supra note 46, at 231.
88. Until recently, the extinction of species on abyssal plains was regarded by some as unlikely or even impossible. According to the source-sink hypothesis, abyssal plains were constantly populated by generations of non-reproducing species deriving from “source” populations in the bathypelagic layer (see Report of the Secretary-General, UN Doc A/60/63/Add.1, supra note 51, at 7, and M A Rex et al, “A source-sink hypothesis for abyssal biodiversity” The American Naturalist, Vol 165, no 2 (University of Chicago Press, February 2005) 163). However, recent studies indicate that there is a characteristic fauna of the abyss. See Smith et al (eds), supra note 23, at 28.
89. Ibid, at 29.
90. R Sharma, B Nagender Nath, G Parthiban & S Jai Sankar, “Seabed Redistribution during Simulated Benthic Disturbance and its Implications on Deep Seabed Mining”, Deep Sea Research Part II, Vol 48, no 11 (Elsevier Science Ltd, 2001) 3363, at 3371–72.
91. Glover & Smith, supra note 46, at 230.
92. Berge, Markussen & Vigerust, supra note 86, at 33.
93. For comparison, the urban area of Auckland, New Zealand, has a size of 1,086 square kilometres.
94. Smith et al (eds), supra note 23, at 4. 95 Glover & Smith, supra note 46, at 219.

The transportation of the nodules to the surface will further lead to a waste water plume. As the nodule slurry is pumped upwards, the mining vessel has to filter the nodules and subsequently discharge waste water which comprises cold, nutrient-rich deep sea water, seafloor sediments, and fragments of nodules (and possibly benthic biota).⁹⁶ The release of the waste water into the euphotic zone might “alter dramatically light and productivity regimes, food-web structure, particle export and heavy-metal loading within zone of influence of the plume”⁹⁷. Some scientists favour therefore a discharge of the waste water in greater depths, particularly below the oxygen-minimum zone in depths of more than 1,000 metres.⁹⁸ Yet the environmental consequences of such activities are even more difficult to predict due to our lack of knowledge regarding the structure and functioning of mid-water ecosystems.⁹⁹

In addition, the operation of the mining machine, riser system, and mining vessel will lead to underwater noise and vibration.¹⁰⁰ The resulting noise pollution is expected to disturb, in particular, whales, dolphins, and porpoises, which are dependent on sound as a means of prey location, navigation, and communication.¹⁰¹ Impacts of anthropogenic noise pollution can be lethal. The military use of mid-frequency sonar, for example, coincided with stranding of whales and dolphins.¹⁰²

Consideration must also be given to the environmental effects which may follow from unpredictable events — i.e. malfunctions or defects of parts of the mining system. A pump failure or a fracture in a pipeline segment, for example, might result in the release of large quantities of mud into the ambient waters and thus in the formation of a mega-plume.¹⁰³

96. Berge, Markussen & Vigerust, supra note 86, at 36.
97. Report of the Secretary-General, UN Doc A/60/63/Add.1, supra note 51, at 42.
98. Jin S Chung, Gerd Schriever, Rahul Sharma & Tetsuko Yamazaki, Deep Seabed Mining Environment: Preliminary Engineering and Environmental Assessment, ISOPE Special Report OMS-EN-1 (International Society of Polar and Offshore Engineers, Cupertino, California, USA, 2002) 8.
99. Report of the Secretary-General, UN Doc A/60/63/Add.1, supra note 51, at 42. 100 Berge, Markussen & Vigerust, supra note 86, at 35.
101. Greenpeace, “Cetaceans and the Ocean Crisis” (Greenpeace, 19 July 2004), at <http:// www.greenpeace.org/-international/press/reports/cetaceans-and-the-oceans-crisis> (at 08.09.2008) 2, at 3.
102. Ibid.
103. Berge, Markussen & Vigerust, supra note 86, at 35.

Figure 4: Environmental impacts (bold type) of a hydraulic mining system utilising a nodule buffer and a mining platform.¹⁰⁴

• 3.2.2 Threats posed by crust mining and massive sulphide mining

Especially in regard to crust mining and hydrothermal vent mining, scientists consider that there are not sufficient studies to predict the actual impact.¹⁰⁵ However, as crust mining and massive sulphide mining currently involve technical design concepts that are comparable to those of nodule mining, the actual effects of the respective mining operations (seabed destruction, formation of sediment, and waste water plumes) are believed to be somewhat similar. Nevertheless, the smaller scale of crust mining and massive sulphide mining, and the different biota of seamounts and hydrothermal vents, need separate consideration.

The first impact from crust mining will be the destruction of the sessile fauna on the crusts themselves.¹⁰⁶ Despite the disruption of a much smaller area, species extinction is predicted to occur more often due to the high diversity and endemic nature of seamount biota.¹⁰⁷ The subsequent sediment plume and

104. From Glover & Smith, supra note 46, at 230. 105 ISA, ISBA/14/A/2, supra note 23, at 16–17.
106. Glover & Smith, supra note 46, at 231.
107. Ibid.

the waste water plume will probably have an adverse effect on the primary production in the adjacent water layers — for example, the photosynthesis of algae in upper water layers — and might therefore alter and harm seamount food chains.¹⁰⁸ In addition, if seamounts function as “stepping stones”, migratory routes of fish will possibly be diverted or migration even totally hindered. Crust mining is therefore likely to have an impact on the fishing industry.

Massive sulphide mining at active hydrothermal vent sites, in turn, will result in habitat loss for the unique vent fauna. However, once mining ceases, active vents are believed to rebuild quickly, and afterwards a rapid recolonisation by species from surrounding vent sites is expected.¹⁰⁹ Mining at active sites might yet result in a vast extinction of species, if operations are conducted on a large-scale basis, or in isolated areas with an endemic fauna.¹¹⁰ Massive sulphide mining at inactive sites, which are devoid of chemoautotrophy-based (but not any) fauna,¹¹¹ is in this regard considered to be less dramatic.¹¹² However, all so far explored mining sites lie less than one kilometre from active vents.¹¹³ Thus, if mining commences at an inactive vent site, the resulting sediment plume might still have an adverse impact on the surrounding active vent communities.¹¹⁴ Naturally, piping and filtering of the massive sulphides will result in a waste water plume that poses further threats to the marine ecosystems. Given the tremendous possibilities of scientific research and applications that hydrothermal vent communities provide, Dr Sylvia A Earle, marine biologist and former chief scientist of the US National Oceanic and Atmospheric Administration, has likened mining companies to “aliens from space with a taste for cement who land in Manhattan and ignore the people, operas and museums”.¹¹⁵

4. THE DIVISION OF JURIDICAL COMPETENCE OVER NON-LIVING SEABED RESOURCES

Mineral resources of the deep sea are found in areas within and beyond national jurisdiction and sovereignty. Seen historically, the modern division of the

108. Report of the Secretary-General, UN Doc A/60/63/Add.1, supra note 51, at 43; ibid. 109 Report of the Secretary-General, UN Doc A/60/63/Add.1, supra note 51, at 43.
     110. Ibid.
     111. Herzig, Petersen & Hannington, supra note 28, at 128, 154; Glover & Smith, supra note 46, at 232.
     112. Glover & Smith, supra note 46, at 232.
     113. Halfar & Fujita, supra note 32, at 987.
     114. S Kim Juniper, “Impact of the Development of Seafloor Massive Sulphides on the Vent Ecosystem” in ISA, Minerals Other than Polymetallic Nodules of the International Seabed Area — Proceedings of a Workshop held on 26–30 June 2000 in Kingston, Jamaica (ISA, Jamaica, 2004), Vol I, Ch 6, 289.
     115. Broad, “First Move Made to Mine Mineral Riches of Seabed”, supra note 39.

oceans into international areas (international waters) and areas under national jurisdiction (territorial waters) reaches back to the beginning of the 17th century when Hugo Grotius set his principle of the freedom of the high seas against the mare clausum doctrine¹¹⁶ in order to foster Dutch interests in sea trade.¹¹⁷ The practice of recognising these two maritime zones continued until the mid 20th century, when nations successfully began to extend their claims, for the first time also casting an eye on seabed resources.¹¹⁸ Today, the extent of national juridical competence over seabed resources is regulated by the International Law of the Sea, particularly in the 1982 United Nations Convention on the Law of the Sea (“LOSC”), which entered into force on 16 November 1994 and has so far been ratified by 156 States and the European Community.¹¹⁹ Also, States which are not party to the LOSC may be bound by its provisions, as many of these provisions are based upon the 1958 Geneva Convention on the Law of the Sea, and related developments in international customary law.¹²⁰ While the LOSC attempts to provide a global framework for the rational exploitation and conservation of the sea’s resources and the protection of the environment,¹²¹

116. In the 15th and 16th centuries, the Iberian powers had in their monopolist ambitions tried to establish a mare clausum (closed seas) over large parts of the oceans. See Brown, supra note 84, at 14.
117. Hugo Grotius, mare liberum (1609); E D Brown, The International Law of the Sea, Vol 1 (Dartmouth Publishing Company, England, 1994) 7; However, the idea that “the sea belongs to everybody” can be traced back to Ancient Rome (Plautus, 3rd century BC); see Yves Peurière, “Fisheries, Property Rights and Regulation in Ancient Rome: Nihil Novi Sub Mari” in Max Falque, Michael de Alessi & Henri Lamotte (eds), Marine Resources: Property Rights, Economics and Environment (Elsevier Science, 2002) 17.
118. Michaela Stirling, “New Zealand’s Offshore Mining Regime — Rights and Responsibilities beyond the 12-Mile Limit” (2002) 6 NZJEL 141.
119. UN Division for Ocean Affairs, “United Nations Convention on the Law of the Sea of 10 December 1982 — Overview and full text” of 25 September 2008; Consolidated table of ratifications/accessions, at <http://www.un.org/Depts/los/convention_agreements/ convention_overview_convention.htm> (at 02.10.2008); the United States of America has signed, but still not ratified LOSC, mainly for economic and sovereignty reasons (concerning the establishment of the ISA in Part XI) (see Majorie B Paulsen, Law of the Sea (Nova Science Publishers Inc, 2007) vii); however, lately a ratification is again discussed avidly, see Kevin Drawbaugh, “US Senate panel backs Law of the Sea treaty” (Reuters, 31 October 2007), at <http://www.reuters.com/article/latestCrisis/idUSN31335584> (at 13.09.2008); for the 1994 Implementation Agreement, see infra 5.1.
120. Brown, supra note 117, at 19. International customary law is, for example, “the right of innocent passage” and the EEZ; see Stirling, supra note 118, at 143 (in footnote 17) & 144. International customary law forms when two elements are present: (i) a particular usage is habitually observed by the generality of States (consuetudo); and (ii) they observe that usage out of a feeling of legal obligation (opinio juris); see E D Brown, Sea-Bed Energy and Minerals: The International Legal Regime, Vol 1, “The Continental Shelf ” (Martinus Nijhoff Publishers, 1992) 3; this is not the case for the specific provisions with regard to seabed mining, but will be the case for the continental shelf regime.
121. Birnie & Boyle, supra note 49, at 348.

this section will only deal with: (i) the degree of national sovereignty over seabed resources; and (ii) the degree of jurisdiction in related environmental matters (together: juridical competence)¹²² as provided by the LOSC through its maritime zones.

4.1 Maritime Zones

In order to regulate the degree of national juridical competence over the oceans, the LOSC provides a set of eight zones. Stretching seaward from shore they are: internal waters; the territorial sea; archipelagic waters; contiguous zone; exclusive economic zone; continental shelf; high seas; and the “Area”. While some zones comprise the waters and the seabed (and its subsoil),¹²³ other zones only deal exclusively with either the seabed or the superjacent waters. By doing so, zones necessarily overlap, and the degree of juridical competence enjoyed by the costal State for purposes of the exploitation of mineral resources varies from zone to zone.

Figure 5: Maritime zones as provided by LOSC.¹²⁴

The outer limit of all maritime zones is measured from the “baseline”, which

122. The term “sovereignty” aims in this context rather at property rights, whereas “jurisdiction” means the competence to prescribe and enforce legislation.
123. The wording of the LOSC differs between the terms “seabed” and “subsoil”; for the purpose of this paper, however, the term “seabed” shall be inclusive.
124. From “Fisheries and Oceans Canada”, at <http://www.dfo-mpo.gc.ca/oceans/canadasoceans- oceansducanada/-marinezones-zonesmarines-eng.htm> (at 10.09.2008).

is in general the low-water line along the coast.¹²⁵ All waters lying landward of the baseline — such as rivers, lakes, bays, and ports — are regarded as “internal waters”,¹²⁶ while seaward of the baseline the territorial sea extends to a maximum of 12 nautical miles (“nm”) in breadth.¹²⁷ The coastal State has in these areas sovereignty over the mineral resources of the seabed and jurisdiction in related environmental issues, but must ensure that mining operations conducted in the territorial sea do not hamper the right of innocent passage of foreign vessels.¹²⁸ Archipelagic States are entitled under a special regime to adopt a baseline system that encloses the archipelago “within a series of straight lines joining the outermost islands and reefs of the archipelago”¹²⁹. The resulting area is the “archipelagic waters”, where the archipelagic State enjoys similar rights to those of the territorial sea.¹³⁰

Beyond the territorial sea, the contiguous zone stretches up to 24 nm from the onshore baseline. In general, it forms part of the “high seas” and thus does not fall under the sovereignty or jurisdiction of the coastal, or any other, State.¹³¹ While the LOSC still grants the coastal State a right of hot pursuit to prevent future, or punish past, infringement of its customs, fiscal, immigration, and sanitary laws and regulations, it does not provide the State with further juridical competence over any marine resources.¹³²

The coastal State is, however, ipso facto and ab initio entitled¹³³ to a (legal) continental shelf of at least 200 nm from the onshore baselines.¹³⁴ In this area,

125. Article 5 LOSC.
126. Brown, supra note 120, at 14.
127. Article 3 LOSC.
128. Articles 2 & 17–26 LOSC; foreign ships can navigate through territorial waters, but they cannot stop or anchor for longer than necessary and their passage must not be prejudicial to the peace, good order, or security of the State. See Articles 18(2) & 19(1) LOSC; Stirling, supra note 118, at 143.
129. Article 47 LOSC, and Brown, supra note 117, at 16; “archipelagic state” means a State constituted wholly by one or more archipelagos and may include other islands; “archipelago” means a group of islands, including parts of islands, interconnecting waterways and other natural features which form, or have historically been regarded as, an intrinsic geographical, economic and political entity; see Article 46(1) & (2) LOSC.
130. Ibid; see Articles 49–54 LOSC.
131. Brown, supra note 117, at 130. On the other hand, if the coastal State claims an EEZ, the contiguous zone is associated with it.
132. Brown, supra note 120, at 17.
133. “[The coastal State’s rights] exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it [...]. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed”; see North Sea Continental Shelf Judgement, ICJ Reports (1982) para 19; and Article 77(3) LOSC.
134. Article 76 LOSC. Despite the wording, the legal continental shelf should not be confused with the geomorphological continental shelf or geomorphological continental margin; see Brown, supra note 120, at 24.

the State may exclusively exercise sovereign rights for the purpose of exploring the seabed and exploiting its natural resources,¹³⁵ which comprise the mineral and other non-living resources of the seabed together with the seabed’s living sedentary fauna.¹³⁶ While these sovereign rights apply to the seabed, they do not extend to the superjacent waters.¹³⁷ The coastal State has, however, the right to establish artificial islands, installations, and structures on the continental shelf that naturally must penetrate the water layers, and may even reach to the water surface.¹³⁸ Furthermore, it must ensure that mining operations on the continental shelf do not interfere with the rights and freedoms of other States — such as the right of navigation and the right to lay submarine cables and pipelines.¹³⁹ For this purpose, the coastal State can establish safety zones around mining structures up to 500 metres in every direction that all ships must respect, and can direct the course of a foreign cable or pipeline.¹⁴⁰ The coastal State does not have jurisdiction over the continental shelf, except for artificial islands, installations, and structures.¹⁴¹ The necessary minimum of jurisdiction in environmental matters regarding seabed mining is then provided by Article 208(1) LOSC.¹⁴² In certain circumstances the State can also claim under the “Irish formula” an extension of the continental shelf up to a distance of either 350 nm from the baseline, or 100 nm from the 2,500 m isobath (which is the line connecting the depth of 2,500 m).¹⁴³ The resulting area is supposed to provide coastal States the lion’s share of the economically valuable resources.¹⁴⁴ However, exploitation of mineral resources on the extended parts of the continental shelf is subject to annual payments or contributions under Article 82 LOSC.

The coastal State can claim an EEZ adjacent to its territorial sea with a breadth up to 200 nm from its baseline. Where such an EEZ is claimed, the area coincides with the continental shelf up to the 200 nm line. The proclamation of an EEZ provides a limited set of sovereign rights over the living and non-living

135. Article 77(1) LOSC.
136. Article 77(4) LOSC. The term “sedentary fauna” includes “the living organisms which, at a harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil”.
137. Articles 77(2) & 78(1) LOSC.
138. Articles 80 & 60 LOSC. Stirling, supra note 118, at 146.
139. Articles 78 & 79 LOSC.
140. Articles 80 & 60(4), (5) & 79(3) LOSC; Stirling, supra note 118, at 148.
141. Articles 80 & 60(2) LOSC.
142. “Coastal States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction [...].”
143. The “Irish formula” is embodied in paragraph 4; see Brown, supra note 120, at 24; see also Stirling, supra note 118, at 146; Article 76(4) & (5) LOSC.
144. Brown, supra note 120, at 25.

resources in both the water column and the seabed.¹⁴⁵ Despite this conferment of sovereign rights over the seabed, Brown argues that the EEZ is of very little significance for the exploitation of mineral resources, as Article 56(3) LOSC ensures that the provisions of the continental shelf prevail.¹⁴⁶ The proclamation of an EEZ, however, gives the coastal State jurisdiction for the protection and preservation of the marine environment in its whole area.¹⁴⁷

The high seas, which comprise all waters not included in the EEZ, in the territorial sea, or in the internal waters, are beyond national juridical compe- tence. They are open to all States, subject to the freedom of the high seas, and reserved for peaceful purposes.¹⁴⁸ Equally, the seabed beyond national juridical competence is called the “Area”.¹⁴⁹ It lies seaward of the outer limit of the legal continental shelf and below the high seas. The legal principles which govern the Area and the current international regime regarding the exploitation of its mineral resources will be further discussed in the following section.

5. THE REGULATION OF DEEP SEABED MINING IN THE “AREA”

5.1 General Principles

The general principles which govern the Area are based on suggestions made by the Maltese Delegation before the General Assembly of the United Nations in 1967. They were implemented three years later by the General Assembly of the United Nations in its “Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction” which declared, inter alia, that:¹⁵⁰

(i) The sea bed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as the Area), as well as the resources of the Area, are the common heritage of mankind.

(ii) The Area shall not be subject to appropriation by any means by States

145. Articles 56(1) & 57 LOSC.
146. Brown, supra note 120, at 18.
147. Article 56 LOSC; see also Articles 61 & 62. 148 See Part VII LOSC.
149. Article 1(1) LOSC defines the Area as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”.
150. General Assembly Resolution 2749 (XXV), adopted by the General Assembly of the United Nations on 17 December 1970 by 108 votes to nil with 14 abstentions; see also Satya Nandan, “Administering the Mineral Resources of the Deep Seabed” in Richard Barnes, David Freestone & David Ong, Law of the Sea (Oxford University Press Inc, New York, 2006) 76; Churchill & Lowe, supra note 24, at 227.

or persons, natural or juridical, and no State shall claim or exercise sovereignty or sovereign rights over any part thereof.

(iii) No State or person, natural or juridical, shall claim, exercise or acquire rights with respect to the Area or its resources incompatible with the international regime to be established ... .

(iv) The exploration of the Area and the exploitation of its resources shall be carried out for the benefit of mankind as a whole ..., and taking into particular consideration the interests and needs of developing countries.

On this basis the Third United Nations Conference on the Law of the Sea (“UNCLOS III”) developed the regime for the Area.¹⁵¹ Since it established that the resources of the Area are the “common heritage of mankind”, the developing countries sought to administer these by installing an international seabed authority as a public enterprise with the sole power to control mining in the Area, either by conduction of mining operations itself, or by granting licences to other companies. The industrialised countries, on the contrary, initially proposed that such an authority should only register national claims to seabed mining sites, while the resources should be commercially exploited by mining consortia.¹⁵² At the time of adoption in 1982 the developing countries had mainly succeeded with their suggestions.¹⁵³

However, the concept in this form never became reality. After the adoption, the United States did not sign the LOSC because of objections to the proposed regime for deep seabed mining in Part XI. Other industrialised States such as the United Kingdom, Italy, and the Federal Republic of Germany signed the Convention but did not ratify it.¹⁵⁴ States criticised, inter alia, that provisions of the LOSC were either not able to adequately protect the interest of investors in deep seabed mining or gave the authority an unfair advantage over private operators.¹⁵⁵ Further concerns addressed the mandatory transfer of technology to both the authority and developing States as being incompatible with intellectual property rights, or the financial arrangements as resembling taxes.¹⁵⁶ In 1990, informal consultations were initiated to meet these objections. They resulted in the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (“1994 Agreement”), which was adopted by the General Assembly of the United Nations through its

151. See Articles 136 & 137 LOSC.
152. Churchill & Lowe, supra note 24, at 228; UN Convention on the Law of the Sea Secretariat, supra note 17.
153. Churchill & Lowe, supra note 24, at 228.
154. Nandan, supra note 150, at 76.
155. Ibid.
156. Elli Louka, International Environmental Law (Cambridge University Press, 2006) 84.

Churchill & Lowe, supra note 24, at 249.

resolution on 28 July 1994.¹⁵⁷ Today, the 1994 Agreement and Part XI of the LOSC are “interpreted and applied together as a single instrument” in order to form the legal regime for the administration and development of the Area and its mineral resources.¹⁵⁸

5.2 The Current Legal Regime for the Exploitation of the Mineral Resources in the “Area”

The current legal regime provides for an International Seabed Authority (“ISA”) through which the States Parties are to organise and control all activities concerned with seabed minerals in the Area.¹⁵⁹ In order to fulfil its task, the ISA has issued in-depth regulations entitled “Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area” (“RPEPN” or “Mining Code”),¹⁶⁰ and is currently working on separate sets of rules regarding the exploration of massive sulphide deposits and cobalt-rich crusts, all eventually to be integrated in the Mining Code.¹⁶¹ These regulations will include the forms necessary to apply for exploration rights as well as standard terms of exploration contracts. The ISA also promotes and coordinates marine scientific research in order to take the necessary measures for the protection and conservation of the natural resources of the Area and to prevent damage to the flora and fauna of the marine environment from activities in the Area.¹⁶²

Mineral resources of the Area may be exploited both by the Enterprise, which is the operating arm of the ISA,¹⁶³ and by commercial operators (the so- called “parallel system”). The Enterprise, however, is to conduct initial mining operations through a joint venture, and not as an independent mining operator.¹⁶⁴ The legal regime for commercial operators divides between “prospecting” and “exploration and exploitation” of mineral resources. “Prospecting” — i.e. general searches for mineral resources — only requires notification to the ISA of the approximate areas where it is being carried out, and a written undertaking

157. Berhard H Oxman, “Law of the Sea Forum: The 1994 Agreement on Implementation of the Seabed Provisions of the Convention on the Law of the Sea — The 1994 Agreement and the Convention” in Hugo Caminos, Law of the Sea (Dartmouth Publishing Company, Ashgate Publishing Ltd, England, 2001) 687.
158. Article 2(1) of the 1994 Agreement; see also Nandan, supra note 150, at 78.
159. See Articles 156–191 LOSC.
160. See Articles 160(2)(f )(ii) & 162(2)(o)(ii) LOSC, and Article 17 of Annex III (Basic Conditions of Prospecting, Exploration and Exploitation). The Regulations were adopted on 13 July 2000.
161. ISA, ISBA/14/A/2, supra note 23, at 15.
162. Nandan, supra note 150, at 75.
163. For the Enterprise see Article 170 LOSC and Annex IV (Statute of the Enterprise). 164 Churchill & Lowe, supra note 24, at 248.

to observe the Convention, rules, and regulations of the ISA in this regard.¹⁶⁵ If an applicant, in contrast, wants to engage in “exploration and exploitation” of a mining site, a specific authorisation by the ISA is required.¹⁶⁶

In order to obtain such authorisation, the applicant must be “qualified”. This is the case if the applicant’s entity either possesses the nationality of a State Party, or meets at least certain criteria regarding its control and sponsorship.¹⁶⁷ Moreover, the applicant must submit its plans of work, give a written assurance of good faith in fulfilling contractual obligations, and accept the Convention and all rules made under it.¹⁶⁸ The plans of work, in turn, must meet certain financial and technical qualifications. Due to Annex, Section 1, paragraph 6(a)(ii) of the 1994 Agreement these qualifications are considered being met if the applicant’s sponsoring State certifies that the applicant has already expended an amount equivalent to at least US$30 million in research and exploration activities and has expended no less than 10 per cent of that amount in the location, survey, and evaluation of the area referred to in the plan of work. Besides the fact that a mining site can only be distributed once, an applicant might be rejected if, due to certain elaborate criteria, its sponsoring State would obtain a monopoly position in seabed mining, or mining activities at the proposed site would likely¹⁶⁹ result in serious harm to the marine environment.¹⁷⁰

An application also requires that the applicant complies with the provisions on technology transfer,¹⁷¹ but those provisions have been altered insofar that technology can only be obtained by the Enterprise and developing States “on fair and reasonable commercial terms and conditions, consistent with the effective protection of intellectual property rights” — i.e. acquired on the open market.¹⁷²

Finally and most significantly, every plan of work must specify two sites of equal estimated commercial value.¹⁷³ The successful applicant will be granted an exclusive mining right in only one of the sites. The other site, however, will be reserved for development by the Enterprise, which might do so either in a sole undertaking or in association with developing States.¹⁷⁴

165. Article 2 of Annex III LOSC; ibid.
166. Articles 3, 6 & 7 of Annex III LOSC; ibid, at 249.
167. Article 153 LOSC; Annex III, Article 4.
168. Article 153 LOSC; Annex III, Articles 3 & 4.
169. See infra 5.3.2.
170. Churchill & Lowe, supra note 24, at 250.
171. Article 4, paragraph 6(d) of Annex III LOSC. 172 1994 Agreement, Annex 5.
     173. Annex III, Article 8 LOSC.
     174. Annex III, Articles 8 & 9 LOSC.

So far, eight applicants have been granted exploration licences for poly- metallic nodule mining in the Area.¹⁷⁵ Exploration sites lie mainly in the Clarion-Clipperton Zone, but one contractor is operating in the Indian Ocean.¹⁷⁶ All contractors are under the obligation to provide an annual activities report to the ISA. These standardised reports shall provide the ISA with the necessary information to assess the activities, in particular regarding their potential to harm the marine environment.¹⁷⁷

Figure 6: (facing page) Map of the Clarion-Clipperton Zone in the Pacific, showing ISA contractor areas and reserved areas.¹⁷⁸

5.3 Protection of the Environment of the “Area” from Seabed Mining

The environment of the Area is mainly protected by international environmental law. As with all international law, it derives from four sources, namely: international conventions; international general practice accepted as law (international custom); general principles of law; and, as secondary sources, judicial decisions and teachings of experts.¹⁷⁹ However, especially international marine environmental law has often emanated from Treaties and a number of UN Declarations.¹⁸⁰ While Treaties contain legally binding law, Declarations rather contain “principles” that address some concerns and fundamental concepts of environmental protection. With regard to these non-binding Declarations, the resulting “principles of international environmental law” may become binding through enactment¹⁸¹ or as international customary law at some time,¹⁸² but even before, they display certain political commitments of the States, and are a valuable source of suggestions for future developments.¹⁸³ They will therefore be used later in this paper for proposing a better protection of the deep sea environment. This section, though, will discuss the international environmental law found in Conventions in more detail.

175. ISA, ISBA/14/A/2, supra note 23, at 11.
176. Nandan, supra note 150, at 87.
177. ISA, ISBA/14/A/2, supra note 23, at 12.
178. From <http://www.isa.org.jm/en/scientific/exploration> (at 15.09.2008). 179 Article 38 of the Statute of the International Court of Justice.
     180. Churchill & Lowe, supra note 24, at 333.
     181. For example, the precautionary approach in Regulation 31.2 RPEPN and the Preamble of the CBD.
     182. Birnie & Boyle, supra note 49, at 24, 26. For the requirements of international customary law see supra note 118.
     183. See infra Part 7.

• 5.3.1 The Law of the Sea Convention

As the LOSC provides the global framework for the conservation of the sea’s resources and the protection of the environment,¹⁸⁴ it necessarily deals with the protection of the environment of the Area. The LOSC thereby provides in Part XII a set of fundamental rules for the general protection and preservation of the marine environment, but also contains for the Area particular environmental regulations in Part IX.

In Part XII, Articles 192 and 193 resemble Principle 21 of the Stockholm Declaration¹⁸⁵ which imposes on a State with the juridical competence to exploit natural resources a corresponding duty to protect the marine environment. Article 194 and subsequent provisions elaborate this duty in more detail. States are thus obliged to take “all measures ... that are necessary to prevent, reduce and control pollution of the marine environment from any source”,¹⁸⁶ which “shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species or other forms of marine life”.¹⁸⁷ Pollution is thereby defined as:¹⁸⁸

[T]he introduction by man, directly or indirectly, of substances or energy into the marine environment, ... which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality of use of sea water and reduction of amenities.

Article 204 also imposes a duty to monitor risks and effects of such marine pollution, in particular those resulting from such activities which the State permitted or engaged in.

Articles 207 to 211 deal with marine pollution resulting from or through several sources. Notably, Article 208 (Pollution from Seabed Activities) does not apply to the Area, as it only deals with pollution subject to national jurisdiction. However, such a restriction does not apply to Article 210, which deals with pollution by dumping. “Dumping”, in turn, is defined in Article 1(5)(a) to mean:¹⁸⁹

(i) any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea;

184. See supra Part 4 (introductory text).
185. Declaration on the Human Environment, Stockholm, 1972; see also Article 3 CBD. 186 Article 194(1) LOSC.
187. Article 194(5) LOSC.
188. Article 1(4) LOSC.
189. Note that this broad definition is limited by Article 1(5)(b).

(ii) any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea.

This raises the question whether the disposal of deep sea waste water by the mining vessel does fall under this provision. Arguably this is not the case. Article 208 basically encompasses all types of pollution “arising from or in connection with seabed activities”. As long as the pollution is directly related to the mining process — i.e. even if the pollution does not occur on the seabed but comes from the mining vessel — Article 210 is not applicable.

In Part XI, Article 145 embodies the fundamental principle on the protection of the environment in the Area, as it states that “[n]ecessary measures shall be taken ... with respect to the activities in the Area to ensure effective protection for the marine environment from harmful effects which may arise from such activities”. This principle is somewhat repeated by Article 209.¹⁹⁰ Article 145 subsequently empowers the ISA to establish detailed regulations in this regard.

• 5.3.2 Subordinated legislation under the Law of the Sea Convention

The ISA has established such an environmental regime through provisions in the RPEPN, and also by the Standard Clauses for Exploration Contract (“Standard Clauses”), which are found in Annex IV of the Mining Code. While the rules represent “a balance between the need to preserve and protect the marine environment and the objective of developing the resources of the Area”,¹⁹¹ they provide nevertheless a relatively strong protection of the deep sea environment.

The fundamental provision is Regulation 2.2 RPEPN, which states that “prospecting shall not be undertaken if substantial evidence indicates the risk of serious harm to the marine environment”. The term “serious harm to the marine environment” is in turn defined as “any effect ... which represents a significant adverse change in the marine environment ...”,¹⁹² while the “marine environment” extensively “includes the physical, chemical, geological and biological components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine ecosystem, the waters of the seas and oceans and the airspace above those waters, as well as the seabed and ocean floor and subsoil thereof ”¹⁹³. The RPEPN does not

190. Article 209(2) LOSC in Part XII adds, however, that States shall adopt laws and regulations to prevent, reduce, and control pollution of the marine environment from activities in the Area undertaken by vessels, installations, or structures which are subject to their jurisdiction.
191. Nandan per Brown, supra note 84, at 398. 192 Reg 1.3(f ) RPEPN.

193 Reg 1.3(c) RPEPN.

reiterate Regulation 2.2 with this clarity for the exploration or exploitation of polymetallic nodules. However, as prospecting is the minimally invasive step of the commercial exploitation of mineral resources, the provision should a fortiori apply to the exploration and exploitation of polymetallic nodules. In this sense the Regulations also state that the Council of the ISA can eventually disapprove areas for exploitation for the same reason, and that exploration in these areas shall not be recommended.¹⁹⁴

The provisions of the RPEPN reflect that environmental impacts on the deep sea ecosystems are still largely unpredictable. Regulation 31.2 states that “the Authority and sponsoring States shall apply a precautionary approach, as reflected in Principle 15 of the Rio Declaration”. The Declaration¹⁹⁵ mentions the precautionary approach as follows:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The precautionary principle¹⁹⁶ has been described as a milestone in environ- mental risk reduction as it envisages an anticipatory preventive action in response to uncertainty.¹⁹⁷ However, the principle extends beyond this concept: public authorities are not only obliged to anticipate possible environmental damage that may arise from activities but act to control the risks even when it is still uncertain whether the damage will eventuate. The precautionary principle also shifts the burden of proof to the person who seeks to conduct the activities.¹⁹⁸

Therefore the contractor must demonstrate that its activities have no detrimental effect on the environment. In this context an exploration contractor is required by the RPEPN to gather environmental baseline data, including a reference area, against which to assess the likely effects of its activities on the marine environment.¹⁹⁹ Furthermore, each contractor is obliged to use, as far as

194. For example, Regulations 2.3 & 21.6(c) RPEPN.
195. Rio Declaration on Environment and Development, 1992.
196. There is some controversy over whether the terms “precautionary approach” and “precautionary principle” reflect the same idea, or are different concepts. This paper uses both terms interchangeably, and refers in this regard to the arguments put forward by Nicolas de Sadeleer, Environmental Principles — From Political Slogans to Legal Rules (Oxford University Press, 2002) 92.
197. Ibid, at 91.
198. Ibid, at 202.
199. Regulations 31.4, 31.7 & paragraph 5.2 of the Standard Clauses.

reasonably possible, the best technology available in order to prevent, reduce, and control pollution and other hazards.²⁰⁰

The RPEPN and the Standard Clauses also require the contractor to submit a detailed contingency plan to respond effectively to incidents.²⁰¹ In case of an incident, the contractor is obliged to notify the ISA immediately. The ISA then responds with emergency instructions, which the contractor has promptly to follow.²⁰² If, however, the contractor does not sufficiently follow the instructions, the ISA itself can conduct measures at the contractor’s expense.²⁰³ Also, more serious cases of non-compliance might lead to monetary penalties and eventually to the cancellation of the contract.²⁰⁴

While due to Article 139 LOSC States are responsible that activities in the Area are conducted in conformity with Part XI, they are only liable for damage caused by their nationals if they fail to carry out their responsibilities

— i.e. have not taken all necessary and appropriate measures to secure effective compliance. A contractor, however, is liable for the actual amount of any damage arising out of wrongful acts in the conduct of its operations.²⁰⁵ In this context the contractor is required to maintain appropriate insurance policies with internationally recognised carriers.²⁰⁶

• 5.3.3 The Convention on Biological Diversity

Substantial protection is also provided by the Convention on Biological Diversity (“CBD”). It was signed at the 1992 UN Conference on Environment and Development (also called “Earth Summit”) in Rio de Janeiro, and came into force on 29 December 1993 and has now 191 States Parties.²⁰⁷

The main objectives of the CBD are the conservation of “biological diver- sity”,²⁰⁸ the “sustainable use”²⁰⁹ of its components, and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.²¹⁰ In order to achieve these objectives the CBD utilises the precautionary principle and

200. Article 145 LOSC, Regulation 31.3 RPEPN, and paragraph 5.1 of the Standard Clauses. 201 Paragraph 6.1 of the Standard Clauses.

202 Paragraph 6.3 of the Standard Clauses. 203 Paragraph 6.4 of the Standard Clauses. 204 Annex III, Article 18 LOSC.

205. Article 22 of Annex III LOSC, Regulation 30 RPEPN, and paragraph 16.1 of the Standard Clauses.
206. Paragraph 16.5 of the Standard Clauses.
207. Parties to the CBD, see <http://www.cbd.int/information/parties.shtml> (at 26.09.2008). 208 Defined in Article 2 CBD; see supra 3.1.
     209. Definition of Article 2 CBD: “the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations”.
     210. Article 1 CBD.

explicitly recognises the “general lack of information and knowledge regarding biological diversity and the urgent need to develop scientific, technical and institutional capacities to provide the basic understanding upon which to plan and implement appropriate measures”.²¹¹ The jurisdictional scope of the CBD does not differ between areas within or beyond the limits of national jurisdiction “in the case of processes and activities”, and as such in the case of seabed mining.²¹² However, its provisions with regard to “components of biodiversity” do only apply to the areas within the limits of national jurisdiction.

The CBD requires its Member States to develop or adapt national strategies, plans, or programmes for the conservation and sustainable use of biological diversity,²¹³ to identify and monitor components of the biological diversity,²¹⁴ to introduce environmental impact assessment procedures,²¹⁵ and to promote and encourage understanding of the importance of, and the measures required for, the conservation of biological diversity, by means of propagation through media, and inclusion of these topics in educational programmes.²¹⁶ In particular, the concept of “in-situ conservation”²¹⁷ may be fruitful for the protection of deep sea biodiversity from seabed mining operations. Article 8 CBD obliges the States Parties in this regard, inter alia, to:

• establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity;
• promote the protection of ecosystems, natural habitats, and the main- tenance of viable populations of species in natural surroundings;
• promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas;
• rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and imple- mentation of plans or other management strategies;
• develop or maintain necessary legislation and/or other regulatory pro- visions for the protection of threatened species and populations.

211. CBD Preamble.
212. Article 4(b) CBD.
213. Article 6 CBD; Articles 8, 9 & 10 CBD.
214. Article 7 CBD.
215. Article 14 CBD.
216. Article 13 CBD.
217. This “means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties”; see Article 2 CBD.

The establishment of marine protected zones in the Area would go hand in hand with the recommendations of the scientists of the ISA’s Kaplan-Project.²¹⁸ The obligation to rehabilitate and restore degraded ecosystems, however, seems in the context of deep seabed mining impossible to fulfil. On the one hand, the lack of general knowledge about deep sea ecosystems would pose the question how to restore mined habitats properly. On the other hand, deep seabed mining necessarily results in irreparable habitat destruction with regard to the specific fauna of nodules, mineral crusts, and “chimneys” of hydrothermal vents.

The requirement of the utilisation of impact assessments in Article 14 CBD is suitable to promote a better understanding of the deep sea environment, and likely to result in more proper estimations of the damage imposed by seabed mining. Impact assessment procedures also reflect the precautionary approach to avoid adverse impacts on the environment.

Most significant for the protection of the deep sea environment are also the concepts of public education and public participation.²¹⁹ Only a combination of both concepts can prevent an “out of sight, out of mind” way of thinking, and therefore ultimately provide a proper reflection of all public interests in decision-making processes with regard to deep seabed mining.

• 5.3.4 The 1973/78 MARPOL Convention and the 1972/96 London Dumping Convention

MARPOL 73/78²²⁰ entered into force on 2 October 1983 and contains six annexes, each concerned with preventing a different form of marine pollution.²²¹ The Convention is mainly concerned with vessel pollution. However, by doing so, waste water discharges of a mining vessel do not fall within its scope, as the definition of “discharge” in Article 2(3) MARPOL 73/78 excludes the “release of harmful substances directly arising from the exploration, exploitation and associated off-shore processing of sea-bed mineral resources”.

The same applies to the 1972 London Dumping Convention,²²² as amended by its 1996 Protocol.²²³ Although it aims at the effective control of all sources of

218. See supra 3.2.1; for conservation of “the living resources of the high seas” see also Articles 116–120 LOSC.
219. Articles 13 & 14(1) CBD.
220. The International Convention for the Prevention of Pollution from Ships, 1973, as amended by the Protocol of 1978.
221. Annex I (Oil); Annex II (Noxious Liquid Substances carried in Bulk); Annex III (Harmful Substances carried in Packaged Form); Annex IV (Sewage); Annex V (Garbage); Annex VI (Air Pollution).
222. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972.
223. 1996 Protocol, as amended in 2006.

marine pollution and provides to take all practicable steps to prevent pollution of the sea by dumping of wastes and other matter, Article 1.4.3 of the 1996 Protocol excludes “the disposal of wastes or other matter directly arising from, or related to the exploration, exploitation and associated off-shore processing of sea-bed mineral resources”.

• 5.3.5 Summary

The current mining regime of the ISA — despite the fact that seabed mining is its raison d’être — provides for a balanced approach which envisages a surprisingly strong protection of the deep sea environment. The strength of the regime results from the fact that the provisions of the LOSC and its subordinated legislation provide for detailed environmental monitoring (bolstered by a strict precautionary approach), sufficient liability for damage, and, most importantly, also include tests regarding the technical and financial capacity of prospective miners. The development of sufficient marine protected areas as envisaged by scientists of the ISA would further improve the regime, and should be realised as soon as possible.

6. THE REGULATION OF DEEP SEABED MINING UNDER NEW ZEALAND JURISDICTION

New Zealand claims a territorial sea of 12 nautical miles, and an EEZ out to 200 nautical miles from the onshore baselines.²²⁴ In April 2006, New Zealand submitted a claim to the UN Commission on the Limits of the Continental Shelf to extend its legal continental shelf beyond the 200 nm zone. Under Article 76(8) LOSC a coastal State can delimit its outer continental shelf on the basis of the recommendations of the Commission and “the limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding”.

Figure 7: (facing page, top) New Zealand’s marine non-living resources.²²⁵ Figure 8: (facing page, bottom) New Zealand’s EEZ and continental shelf.²²⁶

224. Territorial Sea and Exclusive Economic Zone Act 1977 (“TSEEZ Act”), ss 3 & 9(1).
225. Ian Wright, “Marine minerals”, Te Ara — the Encyclopedia of New Zealand, updated 21 September 2007, at <http://www.TeAra.govt.nz/EarthSeaAndSky/MineralResources/

MarineMinerals/en> (at 30.09.2008).

226. Ibid.

While New Zealand regards its submission as partial, not including areas of continental shelf appurtenant to Antarctica,²²⁷ the approval of the claim would still delineate the continental shelf of New Zealand as the fourth largest in the world.²²⁸ The recommendation of the Commission is expected by the end of 2008, as the Commission has decided to defer consideration to its twenty-second session.²²⁹ Although the Commission’s recommendations are not technically binding on New Zealand, they will have considerable authority and New Zealand will be expected to establish the final outer limits of the continental shelf on the basis of them.²³⁰

6.1 The Current Legal Regime for the Exploitation of Mineral Resources in New Zealand’s Deep Sea Areas

New Zealand’s legislation provides for a dual system in regard to seabed mining for minerals through the interaction of a variety of Acts. As will be seen, the dividing line between the two mining regimes is the outer limit of the territorial sea. While seabed mining operations within the 12-mile zone are not likely to involve deep sea operations,²³¹ the mining regime of this area is briefly discussed for comparison.

• 6.1.1 Seabed mining up to the 12-mile limit of the territorial sea

Both land mining and seabed mining within the 12-mile zone are regulated under the Crown Minerals Act 1991 (“CMA”). Section 2 provides that the term “land” includes “land covered by water; and also includes the foreshore and seabed to the outer limits of the territorial sea”. Further, s 13 of the Foreshore and Seabed Act 2004 vests ownership of the seabed underneath internal waters and the territorial sea in the Crown. The seabed area and its mineral resources are held by the Crown as its “absolute property”.²³² According to s 8 of the CMA, a prospective miner must hold a special permit, granted by the Minister

227. Commission on the Limits of the Continental Shelf, at <http://www.un.org/Depts/los/clc- s_new/submissions_files/submission_nzl.htm> (at 30.09.2008).
228. Stirling, supra note 118, at 139.
229. Commission on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Com- mission, 21st session CLCS/58 (Commission on the Limits of the Continental Shelf, New York, 17 March – 18 April 2008) 4.
230. Office of the Ministry for the Environment, “Cabinet Paper: Proposal for Exclusive Economic Zone Environmental Effects Legislation”, Cab 07-C-0751, at <http://www. mfe.govt.nz/issues/oceans/current-work/cabinet-paper-eez-effects-legislation.html> (at 01.10.2008) para 38.
231. For the definition of “deep sea” see supra note 1. 232 Foreshore and Seabed Act 2004, s 13.

of Energy, in order to prospect, explore, or mine these mineral resources, and comply with both the conditions of the permit and the provisions of the Act.²³³ Before a permit is granted, the Minister may require a monetary deposit or bond as security for compliance with the conditions of the permit.²³⁴The applicant must also meet elaborate conditions as set out by the Governor-General in the Crown Minerals (Minerals and Coal) Regulations 2007.²³⁵ Depending on the type of permit, different conditions apply. A mining permit, for example, requires, inter alia, proof of the payment of the application fee, and the provision of information regarding the technical expertise and financial resources of the prospective miner, a map of the permit area, economical data on the mineral deposit, and the prospective working programme.²³⁶

• 6.1.2 Seabed mining on the continental shelf

A different regime is provided for mineral resources which are found on the continental shelf beyond the 12-mile zone. The allocation of sovereign rights in mineral resources of the continental shelf is regulated under the Continental Shelf Act 1964 (“CSA”). In accordance with the LOSC, s 3 of the CSA vests “all rights that are exercisable” regarding the exploration of the continental shelf and exploitation of its natural resources in the Crown. The mining regime itself is regulated in s 5 of the CSA. A prospective miner must obtain a licence in order to “prospect or mine for, or carry on any operations for the recovery of, minerals”.²³⁷ The grant of a licence is in every case in the “absolute discretion” of the Minister of Energy.²³⁸ Every licence is subject to such conditions as the Minister “thinks fit to impose in the circumstances of each particular case”.²³⁹ Moreover, s 7 of the CSA establishes in accordance with the LOSC New Zealand jurisdiction over artificial islands, installations, and structures attached to the continental shelf, and s 8 provides the Governor-General with the power to regulate or prohibit the construction and use of such installations, and to establish safety zones in this regard.²⁴⁰

Arguably, a number of features indicate that the resulting mining regime

233 Crown Minerals Act 1991, ss 8 & 33(1).

234 Ibid, s 27(2).

235 Ibid, s 105(1).

236. Crown Minerals (Minerals and Coal) Regulations 2007, s 18 & Schedule 2, Part 3.
237. Continental Shelf Act 1964 (“CSA”), s 5(1).
238. CSA, s 5(4); there are no regulations in this regard. 239 CSA, s 5(3); see also s 5A.

240 As of 29 September 2008 there have been 8 Regulations issued in this regard: Floating Productions, Storage, and Off-Loading Installation safety zone; Kupe Wellhead Platform safety zone; Maari Development safety zones; Maui A safety zone; Maui B safety zone; Pohokura Platform B safety zone; Umuroa Installation safety zone; Waka-Nui 1 safety zone (now repealed).

for mineral resources on the continental shelf still originates from a time when continental shelf mining was regarded as very unlikely, if not impossible. While s 4 of the CSA, which regulates the (already ongoing) “mining for petroleum” on the continental shelf, has been amended to refer to the detailed regime of the Crown Minerals Act 1991, which deals with mining on land and in the territorial sea, s 5 of the CSA does (still) not refer to that Act and therefore does not make use of its elaborate permit system. Also, non-compliance with s 5 is not subject to severe penalty. Miners who prospect, explore, or exploit mineral resources on the continental shelf without holding a licence, or who do not comply with the conditions set out in the licence, commit an offence, but are liable, on summary conviction, only to a fine not exceeding $200.²⁴¹ Ultimately, the provisions of s 5 of the CSA appear to be completely out of date as they still refer to the Mining Act 1971 and Coal Mines Act 1979, which were both repealed in 1993.

6.2 Environmental Protection of the Deep Sea from Seabed Mining in Areas under New Zealand Jurisdiction

• 6.2.1 The current regime

Like the mining regime, New Zealand’s current legislation for the protection of the marine environment beyond the 12-mile zone is scattered and inconsistent,²⁴² although it is party to all the international Conventions outlined above.²⁴³ The detailed environmental regime of the Resource Management Act 1991 only extends to the territorial waters. The only provisions which might be used for the protection of the marine environment from seabed activities beyond the 12- mile zone are s 8 of the CSA and s 27(b) of the Territorial Sea and Exclusive Economic Zone Act 1977 (“TSEEZ Act”). Under s 8(1)( j) of the CSA the

241 CSA, s 5(7).

242. Environmental impacts of fishing are regulated by the Fisheries Act 1996 and associated tools. Discharges from ships and offshore installations, oil spills, and dumping of waste are covered by Marine Protection Rules under the Maritime Transport Act 1994 which transfers the regulations of the 1973/78 MARPOL Convention and the 1972/96 London Dumping Convention into national law. There is also some protection for certain species provided through the Marine Mammals Protection Act 1978 and the Wildlife Act 1953. Also, there are for the offshore petroleum industry non-binding guidelines which shall ensure a “responsible discovery and development” of such resources; Ministry for the Environment, “Summary of the Environmental Legislation in the EEZ”, at <http://www. mfe.govt.nz/publications-/oceans/nz-exclusive-economic-zone-discussion-paper-aug07/ html/page9.html> (at 30.09.2008).
243. LOSC: 10 December 1982 (signed), 19 July 1996 (ratified); CBD: 12 June 1992 (signed),

16 September 1993 (ratified); MARPOL, except Annexes IV and VI: 25 September 1998 (accession); London Dumping Convention: 30 April 1975 (ratified).

Governor-General may also make, but so far has not made, regulations for the purpose of:

Prohibiting or restricting any exploration of the continental shelf or any specified part thereof or any exploitation of its natural resources which in the opinion of the Governor-General could result in an unjustifiable interference with ... the conservation of the living resources of the sea ... .

Also very general in nature, s 27(b) of the TSEEZ Act states that the Governor- General may prescribe “measures for the protection and preservation of the marine environment of the [EEZ]”.

• 6.2.2 The ongoing development of the new regime

Already in 1996, the Parliamentary Commissioner for the Environment iden- tified in his report entitled “Environmental Management of Petroleum and Mineral Mining Activities beyond the 12-mile Limit” that the management of mineral mining activities does not include adequate procedures for the assessment of environmental effects, the setting and enforcement of environ- mental conditions, or public consultation.²⁴⁴ In 2000 the “Oceans Policy Process” was initiated, which reviewed in its “stage 2” the existing legislation and identified that there is no consistent or clearly understood process for the assessment of environmental effects for the full range of activities undertaken in New Zealand’s areas beyond the 12-mile zone.²⁴⁵ From 2005 on, the Ministry for the Environment evaluated certain legislative options,²⁴⁶ and finally commenced in 2007 the policy development process by issuing a discussion paper with the title “Improving Regulation of Environmental Effects in New Zealand’s Exclusive Economic Zone”²⁴⁷ which proposed establishing new legislation to fill key gaps in the environmental regulation of New Zealand’s EEZ, and promoted a consistent approach to environmental management across different statutes. The discussion paper identified the “key challenges” for the development of the new regime as follows:

244. Ministry for the Environment, “Offshore Opinions — Managing Environmental Effects in New Zealand’s Exclusive Economic Zone”, at <www.mfe.govt.nz> (ME-603, June 2005, Wellington, NZ) 4.
245. Ibid.
246. Ibid.
247. Ministry for the Environment, “Improving Regulation of Environmental Effects in New Zealand’s Exclusive Economic Zone — Discussion Paper”, at <www.mfe.govt.nz> (ME- 824, August 2007, Wellington, NZ).

1. Gaps and inconsistencies in the operational control of environmental effects.
2. Defining the environmental outcomes so that activities and their effects can be assessed consistently.
3. Effects on investment certainty.
4. Managing effects on other activities.

The Ministry received 46 submissions in response to the discussion paper, which represented a wide range of views, from individuals through to envi- ronmental groups and industry representative associations.²⁴⁸ In the context of massive sulphide mining in New Zealand it is notable also that Nautilus Minerals and Neptune Minerals were among the submitters. While Neptune Minerals²⁴⁹ “emphasised that the identified key challenges are indeed challenges to be managed, not inherent problems, and so legislative regulation may not be required”, Nautilus Minerals recognised at least that rules need to be established “ahead of the game”, but also submitted that the protection of biodiversity “should not necessarily involve the establishment of a marine reserve area”.²⁵⁰ Although it is not surprising that the mining industry recommended little regulation of deep seabed mining, the companies’ suggestions indicate that their concern about protecting the deep sea fauna is not as substantial as they claim it to be.²⁵¹ In view of the deep sea biodiversity, this calls for strict rules and effective monitoring of deep sea mining operations.

Since June 2008, after policy development has been concluded, the New Zealand Government is in the process of drafting an Exclusive Economic Zone Environmental Effects Bill,²⁵² which is supposed to come into force by the end of 2009.²⁵³ The outline of the new legislation can to a certain extent be deduced from the Ministry for the Environment’s “Cabinet Paper: Proposal for

248. Ministry for the Environment, “Improving Regulation of Environmental Effects in New Zealand’s Exclusive Economic Zone — Summary of Submissions”, at <www.mfe.govt.nz> (ME-846, December 2007, Wellington, NZ) 2.
249. Neptune Minerals as its predecessor “Neptune Resources New Zealand Group”. 250 Ministry for the Environment, supra note 248, at 6.
251. See “Corporate Governance Codex of Neptune Minerals”, at <http://www.neptuneminerals. com/Neptune-Minerals-corporate-governance.html> (at 01.10.2008): “Understanding of and care for the environment is of the highest importance. Neptune is committed to engaging its exploration and survey activities in a manner that seeks to achieve sustainable development, while continuing to safeguard the environment and protect human health and safety.” See also Nautilus Minerals, “Environment Quarter 2 2008 Solwara 1 Environmental Fact Sheet”, at <http://www.nautilusminerals.com/s/Media-FactSheet.asp> (at 01.10.2008) 1: “Nautilus Minerals is dedicated to setting a high environmental standard as it embarks on its first project in this new industry of seafloor mining.”
252. Office of the Ministry for the Environment, supra note 230.
253. Trevor Mallard, “Legislation to safeguard ocean ecosystems”, 27 June 2008, at <http:// www.beehive.govt.nz/re-lease/legislation+safeguard+ocean+ecosystems> (at 1.10.2008).

Exclusive Economic Zone Environmental Effects Legislation”.²⁵⁴ According to this document, the Government will follow the discussion paper of 2007, so that the new legislation will build upon existing provisions, and therefore only fill gaps in the regulation of the environmental effects of activities (such as seabed mining, petroleum activities, energy generation, carbon capture and storage, and marine farming) conducted in the EEZ and on the extended continental shelf.²⁵⁵ The regime for the allocation of rights in mineral and petroleum resources will thus be outside its scope. The same applies to fisheries, maritime transport, and species protection.²⁵⁶

While this approach certainly expedites the development of the new provi- sions, the new regime might lack crucial tests for prospective miners, such as requirements regarding the technical expertise of the personnel, in order to prevent incidents, or regarding the financial capability/insurance of the mining company, for covering possible damages.

The new legislation will define certain effect thresholds for different cat- egories of activity. Depending on the environmental effect category into which they fall, activities will then either be generally permitted, subject to consent, or generally prohibited.²⁵⁷ In this context, the Ministry for the Environment has stated that “larger-scale proposals such as petroleum platforms” would require a comprehensive assessment of their effects and consent.²⁵⁸ Beyond the environmental assessment, the consent process will also consider whether a proposed activity has a significant adverse effect on other defined interests.²⁵⁹ The legislation will enable the Minister for the Environment to enact further specific environmental rules, standards, and conditions. The Minister will also be advised by an “EEZ Commissioner”, the head of a new unit to be created in the Ministry for the Environment, on consent applications.²⁶⁰

The new regime will utilise the “precautionary approach”, but it is ques- tionable to what extent the concept will be applied.²⁶¹ The proposal provides that the precautionary approach shall be used “to mitigate any lack of informa- tion about the marine environment and the environmental effects of individual activities”²⁶². Arguably, because of this formulation and in view of the whole

254. Office of the Ministry for the Environment, supra note 230. The corresponding vertices of the new legislation have been publicly announced on the government website; see Trevor Mallard, supra note 253.
255. Office of the Ministry for the Environment, supra note 230, at paras 2 & 3. 256 Ibid, at para 2.
     257. Ibid, at para 15.
     258. Ibid.
     259. Ibid, at para 16.
     260. Ibid, at paras 18–22.
     261. Already the formulation “approach” indicates a soft version of the principle; de Sadeleer, supra note 196, at 92.
     262. Office of the Ministry for the Environment, supra note 230, at para 17 (emphasis added).

provision, the precautionary approach will rather be used in the sense that operations will be permitted in the first place, but monitored stringently, and prohibited if the environmental effects exceed certain levels. The precautionary approach might therefore not include a reversal of the burden of proof. This view is underlined by the statement that the new legislation will be “for effects management purposes, and is not designed to be used as a comprehensive dedicated marine protection tool for conservation purposes”²⁶³.

7. SUGGESTIONS FOR BETTER LEGAL PROTECTION OF DEEP SEABED ECOSYSTEMS UNDER THE

NEW ZEALAND JURISDICTION

This paper has shown that deep seabed mining might provide substantial amounts of mineral resources which are necessary to boost global development and therefore increase the welfare of all countries. In addition, a burgeoning deep sea mining industry could offer further economic wealth for New Zealand by providing jobs and royalties. Nevertheless, deep sea mining might well pose threats that outweigh these benefits. As mankind is just exploring ways to use the deep sea as a resource, it should be paramount not to repeat mistakes we made using shallow waters. To avoid those mistakes mankind requires detailed knowledge about the life forms of the deep sea and the way they interact with their environment. The destruction of habitats through seabed mining might, however, prevent the acquisition of such knowledge. Our glimpse at the deep sea has already revealed sustainable alternatives for using the deep sea as a resource. Bioprospecting at hydrothermal vent sites will certainly deliver mankind greater benefits than the development of mineral resources. In view of the endemic fauna of those deep sea ecosystems, mining at such sites is likely to result in a “second destruction of the rainforest”, where millions of species might become extinct before ever being known to mankind — and with that, from an economic viewpoint, millions of possible applications. For this reason deep seabed mining should in general not be permitted as long as adverse impacts cannot be excluded.

It has been seen that the current mining regime of the ISA envisages a relatively strong protection of the deep sea environment. New Zealand’s mining regime does not, however, and arguably will not, provide sufficient environmental protection. The current reform process is conducted on a piecemeal basis and even the new legislation will provide a regime where environmental risks are rather taken than prevented. The following section will therefore analyse how principles of international environmental law, as developed in a number of UN

263. Ibid, at para 25.

Declarations and working programmes such as the Stockholm Declaration, the World Charter for Nature, the Rio Declaration, and Agenda 21 could be used to develop a mining regime that reflects the risks of deep sea mining properly and thus focuses more on conservation. Furthermore, there will be some suggestions as to where New Zealand should draw from the ISA’s elaborate mining regime.

7.1 The Precautionary Principle

The precautionary principle has already been discussed in this paper.²⁶⁴ In view of the uncertainty regarding the environmental effects of all variations of deep seabed mining and given the possibility of irreversible harm to marine ecosystems,²⁶⁵ the precautionary principle must be applied in a strict sense, involving also a reversal of the burden of proof that mining activities in a certain location will cause no harm to the environment. In this context the mining industry might argue that, given the state of knowledge, a reversal of the burden of proof would effectively hinder any mining operations, as such proof cannot be provided without substantial scientific research, which in turn would render deep sea mining economically infeasible. The argument could be put forward in a sense that, as deep sea research is mainly driven by mining operations, a strong precautionary principle would in fact prevent further deep sea research. However, as deep sea ecosystems are in the focus of the burgeoning biochemical and medical industry, further research of the deep sea will be independent from the financial support of mining companies. Moreover, even under a mining regime which applies the precautionary principle in a strict way, mining companies could still search for suitable low-impact sites — such as inactive hydrothermal vents which lie at a sufficient distance from active sites

— and commence mining there.

7.2 The Principle of Conservation

The principle of conservation should, in combination with the precautionary principle, be the cornerstone of any mining regime, as it would ensure that deep sea ecosystems are preserved in a natural state which excludes unforeseeable adverse effects on the environment. Conservation would also make it possible for marine scientific research to discover all the secrets of the deep sea. The principle can be found in the World Charter for Nature in its Paragraphs 1 to 3 as follows:²⁶⁶

264. See supra 5.3.2.
265. See supra Part 3.
266. For conservation in the EEZ see also Articles 61–68 LOSC.

1. Nature shall be respected and its essential processes shall not be impaired.
2. The genetic viability of the earth shall not be compromised; the popu- lation levels of all life forms, wild and domesticated, must be at least sufficient for their survival, and to this end necessary habitats shall be safeguarded.
3. All areas of the earth, both land and sea, shall be subject to these prin- ciples of conservation; special protection shall be given to unique areas, to representative samples of all the different types of ecosystems and to the habitats of rare or endangered species.

The principle evolves in Paragraph 11 of the Charter into a practical test, which might well be used in order to determine whether mining activities should be permitted or not:²⁶⁷

Activities which might have an impact on nature shall be controlled, and the best available technologies that minimize significant risks to nature or other adverse effects shall be used; in particular:

(a) Activities which are likely to cause irreversible damage to nature shall be avoided;

(b) Activities which are likely to pose a significant risk to nature shall be pre- ceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed;

(c) Activities which may disturb nature shall be preceded by assessment of their consequences, and environmental impact studies of development projects shall be conducted sufficiently in advance, and if they are to be undertaken, such activities shall be planned and carried out so as to minimize potential adverse effects;

The three-tier structure of the test might also be applied to the threshold categories that will be provided in New Zealand’s new environmental rules and consent framework. Conservation in this sense naturally requires “prior assessment of activities which may have significant adverse impacts on the marine environment”²⁶⁸.

As seen above, a further necessity of successful conservation is the

267. Stephanie Adelle Bonney, “Bioprospecting, Scientific Research and Deep Sea Resources in Areas beyond National Jurisdiction: A Critical Legal Analysis” (2006) 10 NZJEL 81, suggests the same regarding marine scientific research and bioprospecting.

268 Agenda 21, 17.22(b).

establishment of marine protected zones.²⁶⁹ Those zones should cover specific habitats of endemic fauna and flora and be sufficiently large to guarantee an undisturbed marine life. In particular, New Zealand needs to establish sufficient marine protected zones, as marine biologists have identified 20 different marine environments within the borders of New Zealand’s EEZ, reaching from subantarctic to subtropical waters, which host a biota that is possibly 80 per cent endemic in nature.²⁷⁰

7.3 The Principle of Sustainable Development

The principle of sustainable development emerged from the Brundtland Report of the World Commission on Environment and Development where it was basically defined as:²⁷¹

[D]evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs. ... A society may in many ways compromise its ability to meet the essential needs of its people in the future — by overexploiting resources, for example.

It was subsequently applied and developed in the Rio Declaration, where it can be found in nine principles.²⁷²

It should be noted that the concept of sustainable development as defined above (“without compromising”) can only apply to renewable resources, such as fish stocks. It must fail in regard to the mining of minerals. All mineral resources — also those at active hydrothermal vent sites, despite their ability to rebuild themselves — are regarded as not renewable resources, because they are consumed when used.²⁷³ Nonetheless, the concept of sustainable development might be used as an argument against mining in the deep sea as far as it destroys renewable resources such as those found at hydrothermal vent sites for the purpose of bioprospecting, or at seamounts for the purpose of fishing. If sustainable development is, however, rather understood as a call for “intergenerational equity”,²⁷⁴ the concept might at least impose in the case of

269. See also Article 8 CBD.
270. Ministry for the Environment, “Environment New Zealand 2007”, at <www.mfe.govt.nz> (ME-847, Wellington, NZ, 2007) 27–28; Ministry for the Environment, supra note 244, at 2.
271. World Commission on Environment and Development, Our Common Future (Oxford University Press, 1987) 43, 44.
272. See the principles 1, 4, 5, 8, 9, 21, 22, 24 & 27 of the Rio Declaration; and the Johannesburg Declaration on Sustainable Development, A/CONF.199/20.
273. Rona, supra note 6, at 79; see also World Charter for Nature, A/Res/37/7, Annex, paragraph 10(d).
274. Philippe Sands, Principles of International Environmental Law (2nd ed, Cambridge University Press, Cambridge, 2003) 253.

mineral resource development the obligation to exploit mineral resources with restraint.²⁷⁵

7.4 The Polluter Pays Principle

The polluter pays principle helps to avoid degradation of the marine environment by internalising environmental costs.²⁷⁶ A mining regime which utilises the polluter pays principle therefore ensures that mining companies will be strictly liable for any environmental damage resulting from their activities. However, New Zealand’s new legislation will only provide an environmental effects management. Hence, it will not alter the provision in s 5 of the Continental Shelf Act 1964 in this regard. To solve the problem, New Zealand must extend the scope of its new legislation. This can be done by drawing from the detailed regime of the ISA — i.e. provide for a strict liability of mining operators, and ensure their technical and financial capability, which must also include the maintenance of sufficient insurance policies. Another possibility would be to amend s 5 to utilise the regulations of the Crown Minerals Act 1991, as has been the case in s 4 for petroleum, which would also provide a more integrated regime for the development of mineral resources beyond the 12-mile zone.

8. CONCLUSION

Studies indicate that deep seabed mining is likely to have a devastating effect on marine biota. The progress of mining companies into the deep sea should therefore be halted, as long as adverse impacts cannot be excluded. Sustainable resource development alternatives like bioprospecting should be advanced, where strict monitoring is provided. New Zealand’s current and future legislation will not reflect the threats of deep seabed mining adequately and will take risks rather than prevent them. Better legislation which focuses more on maritime conservation and sustainable development of marine resources could easily be developed by drawing from the principles of international environmental law, and from the very balanced mining regime provided by the ISA, as well as from the provisions of the Crown Minerals Act 1991. The legislation should adopt a strict precautionary approach, provide for strict liability of the mining operators, and apply conservation measures such as the declaration of marine protected zones.

275. World Charter for Nature, A/Res/37/7, Annex, paragraph 10(d). 276 Agenda 21, 17.22(d).