The international law-based framework for regulating deep-sea mining is contained in Part XI of the United Nations Convention on the Law of the sea (UNCLOS), which came into force in 1994. The Convention set up the International Seabed Authority (ISA) to regulate states’ deep-sea mining activities in all the seabed outside the continental shelves, which extend up to 350 nautical miles from land. UNCLOS declared this “Area” to be the “common heritage of mankind”, recognising that it has value for and belongs to all humanity, including future generations.
The regime established for deep-seabed mining is highly complex. It is regulated by specific provisions in UNCLOS and its Part XI implementing agreement; by regulations being developed by the ISA; and by contracts entered into with the ISA.
The first step is for exploration licenses to be granted to enable companies to explore for minerals and assess their viability. These licenses will automatically convert to exploitation at the end of the agreed period, if they are viable.
The exploitation will be on an industrial scale and is expected to begin as early as 2018. At the moment, regulations for the environmental control of the activity are still under discussion, in a process that allows only limited participation or even observation by civil society.
Some important procedures are entirely closed to observers. Furthermore, because compliance is seldom reported, it is difficult to ascertain how effective existing rules and regulations have been in meeting their objectives. Detailed information on mining is considered to be proprietary, and is not shared.
Scientists and NGOs are concerned that the process favors the interests of the mining industry, and will not impose sufficient safeguards on ventures with high ecological risks and potentially high economic returns.
Regulating deep-sea mining is far from simple. The Clarion-Clipperton fracture zone, for example, is 5,000m below the ocean surface and crosses political, geographic and disciplinary boundaries. And while the ISA has expanded the marine protected area network to cover 24% of the 6 million km2 that comprise the zone, the application of these protected areas in small blocks is in need of further study and development.
In addition, the ISA is tasked with ensuring that the benefits of deep-sea mining are shared with land-locked countries through a system of royalties and parallel mining arrangements, whereby each company or state conducting mining should exploit a parallel space on behalf of the ISA. None of these provisions are yet in place.