“To restore the balance, we need to build a better understanding of long time—and to switch from extractive modes of business to modes which, over time, actively rebuild economic, environmental, human and social capital.”
The recent United Nations Environmental Programme emissions gap report has shown that an extreme transformation of our economy is urgently needed to avoid a climate catastrophe. This transformative approach relies on the production of electric vehicles (EV), renewable energy sources and new infrastructure that will require a huge input of metal supply. One of the richest places to find these metals is in the deep seabed and the United Nations Convention on the Law of the Sea (UNCLOS) acknowledges that the activities in the area are carried out for the benefit of mankind.
However, contradictions between the International Seabed Authority (ISA) mandates and the green economy strategy, with the fact that we still need to extract resources to sustain climate ambitions, expose the ongoing tensions between development and environmental protection.
For now, contractors are exploring the area to see if deep seabed mining (DSM) is environmentally viable while states and private companies are pushing for solutions.
The Triple Bottom Line (TBL) approach for business practices considers the environment and social welfare besides profit. This transformative approach presents a new wave of TBL innovation and deployment.
The current regulatory framework does not consider the TBL approach by including technical capacity for supply chain resilience and promotion of sustainable business practices for contractors before engaging in DSM.
This article will focus on private companies that engage in DSM as there has been criticism over lack of transparency in business practices.
Proper qualifications for companies engaged in DSM in the global commons could help offer long-term sustainable solutions apart from the business-as-usual scenario.
This work does not try to undermine cross-cutting issues or to advocate for DSM, only to evidence a gap in present regulations and offer a potential solution. There are conflicting narratives in DSM, with many NGOs and even private companies advocating for a moratorium on DSM based on scientific uncertainties and demand for the application of the precautionary principle.
Notably, the standard referenced by the moratorium points to the Initiative for Responsible Mining Assurance (IRMA) Standard for Responsible Mining as a high-bar standard for mining on land. IRMA is not available for audits of DSB projects due to the unique and unknown risks of these projects.
ISA could regulate the implementation of qualification standards using first-, second-, or third-party audits as described in the guidelines for EMS. Third-party audits are the most effective in terms of independence and could be carried out by a certification body. The audit and level of conformity against a high-bar standard can be a requirement for issuing the Certificate of Sponsorship and as a precondition in the selection process..
Overall, the exploration and future exploitation of the deep seabed for the purpose of the energy transition signifies a triple challenge—it not only implies a new paradigm, but it is also a contradiction and an opportunity that faces IEL today.
The notion of development is still in tension with the protection of the environment and traditional IEL fails to consider sustainable business practices for long-term solutions. As the global population increases, the demand for metals will rise. In a 2021 report, the UN called for transformative action in the land-based mining industry but has been silent about DSM.
To this end, demanding external audits for the qualifications of private DSM companies (usually merged investors from the oil, shipping or land mining industries) could help alleviate ISA’s contradictory responsibilities.
Whichever regulation technique is adopted by ISA, qualification requirements for DSM private contractors can improve transparency and encourage sustainable business practices of a common resource for the benefit of mankind in the extractive industry. This would lead to long-term stakeholder value and act as a system change from a TBL approach that considers the planet, the people, and profit.
While the United States recognizes UNCLOS as customary international law, the country has yet to ratify the convention and is only an observer in the ISA negotiations related to DSM regulations. U.S. companies must decide between two paths: operating under the UNCLOS umbrella by applying for an exploration contract that requires the Certificate of Sponsorship or operating outside the UNCLOS framework compliant with domestic legislation. The former is the best option in line with the proposed solution. ABA members and U.S. attorneys must encourage U.S. companies to comply with the requirements establish by UNCLOS to prevent free rider behaviour that will further antagonise the green revolution.
