Abstract
Myriad types of experts participate in developing regulations to manage seabed mining (SBM) in the Area under the auspices of the International Seabed Authority (ISA) pursuant to its mandate under the United Nations Convention on the Law of the Sea, which requires, inter alia, taking “effective measures” to achieve environmentally, socially, economically, and commercially responsible SBM. Interdisciplinary expert contributions to this complex endeavor are essential to designing these measures. Yet continuous, detailed, constructive dialogue between different experts and joint drafting of legally, scientifically, and technologically accurate language to further the “effective measures” objective are often lacking, such that despite the best intentions of everyone concerned, its achievement risks being impeded, and even thwarted, to the detriment of the health of our planet and ourselves. This chapter examines aspects of this “missing link,” drawing on examples from the regulatory process at the ISA. A way forward is proposed for SBM that could also be useful for other activities (marine, terrestrial and atmospheric) requiring continuous, constructive interaction between different groups of experts for their effective regulation and management that is consistent with the legal and institutional framework, adaptable to accommodate improved knowledge and experience, as well as being implementable, enforceable, operationally feasible, and cost-effective.
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Notes
- 1.
United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 397 (LOSC), Art. 192; also relevant in this context is the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (New York, 28 July 1994, in force 28 July 1996) 1836 UNTS 3 (IA).
- 2.
ISA website: https://www.isa.org.jm. It also organizes and publishes the results of interdisciplinary workshops, as do other IGOs.
- 3.
Their presence in refereed publications is particularly disquieting and is further addressed infra: see Sect. 8.
- 4.
Smith, C.R. et al. (2020) ‘Deep-sea misconceptions cause underestimation of seabed-mining impacts.’ Trends in Ecology and Evolution https://doi.org/10.1016/j.tree.2020.07.002
- 5.
For example, LOSC Art. 145.
- 6.
Verlaan, P.A. (2020) ‘Environmental protection requires accurate legal analysis: Response to Smith et al.’ Trends in Ecology and Evolution 36(1):13–14; https://doi.org/10.1016/j.tree.2020.09.009
- 7.
For SBM, the applicable law is the LOSC. This error is even found in the ISA’s own draft exploitation regulations: see, e.g., Verlaan, P.A. (2018) ‘Draft ISA Exploitation Regulations: ISBA/24/LTC/WP.1/Rev.1—comments submitted to the International Seabed Authority;’ available at https://www.isa.org.jm
- 8.
For example, the six official UN languages are Arabic, Chinese, English, French, Russian and Spanish. The six official languages of the UN reflect several legal systems and myriad cultures, yet they account for but a modest share of the rich spectrum of these systems and cultures, and a minute proportion of the languages, in active use in our culturally diverse world.
- 9.
LOSC Art. 305: “… the Arabic, Chinese, English, French, Russian and Spanish texts [of this Convention] are equally authentic …”.
- 10.
The LOSC negotiations, for example, took over 10 years, accompanied by a dedicated drafting committee composed of high-ranking State representatives from each of the six official UN languages to help ensure that the negotiated substantive text was accurately reflected in the six languages. However, translation rigor must not be confused with substantive drafting rigor. With regard to the latter, the LOSC would have benefited from another drafting round. Unfortunately, this was made impossible by the premature vote imposed by the United States on the negotiating process and thereby also on the form of the draft text of the LOSC as it then stood. This vote terminated the negotiations, such that the adopted final text of the LOSC is that imperfect draft.
- 11.
The importance of punctuation in legally binding documents must not be forgotten. Consider the endless and not yet settled regulatory problems, caused by the comma, on the right to bear arms as set out in the second amendment to the US Constitution, an instrument written by its native speakers in their native language for their own country. Note that these points also apply nationally in States with two or more official languages (see, e.g., in a selection of examples from Western Europe and North America, with the States and languages in alphabetical order: Belgium: Flemish/French/German; Canada: /English/French; Switzerland: French/German/Italian).
- 12.
“Operation” includes interpretation, application and implementation. These are particularly complex for legally binding instruments, such as the LOSC, that are governed by the rules of public international law. See further discussion infra (n 19).
- 13.
See International Law Commission website: https://legal.un.org/ilc/
- 14.
See International Law Association website: https://www.ila-hq.org/
- 15.
For example, “biological diversity” or “biodiversity”: see discussion of selected pitfalls in Verlaan, P. A. (2020) The interface of science and law: A challenge to the privileging of ‘marine biodiversity’ over ‘marine environment’, in: Barnes, R.A. and Long, R. (Eds.) Frontiers in International Environmental Law: Oceans and Climate Challenges. Brill (Leiden).
- 16.
For example, the use of ‘approach’ vs. ‘principle’ with the adjective ‘precautionary’ in the ISA draft exploitation regulations: see, e.g., the discussion in written comments on the various drafts of these regulations and records of oral interventions by delegations at meetings of the ISA Council; available on the ISA website supra (n 2).
- 17.
For example, such as in the ISA Draft regulations for exploitation of mineral resources in the Area (ISBA/25/C/WP.1), https://undocs.org/en/ISBA/25/C/WP.1, last accessed 13 March 2021.
- 18.
Caveat: contract terminology is used here as a conceptual analogy in order to facilitate this discussion for the multi-disciplinary audience reading this book. A primary difference between a private contract and a treaty is that the latter eventually results in making law applicable to the nationals of the States-Parties to the treaty. A private contract binds only the natural or juridical persons who are the parties to that contract.
- 19.
The rules governing treaty interpretation are considerably more complex than for private contracts. The LOSC is part of a larger, intricately woven legal fabric of diverse rules and principles of international law, judicial and arbitral interpretations, institutional mechanisms, and other applicable treaties. The LOSC cannot be interpreted accurately without at least a minimum understanding of this fabric. See the Vienna Convention on the Law of Treaties (VCLT) (8 ILM 1969; Vienna, 23 May 1969; in force 17 January 1980); McLachlan, C. (2005) ‘The principle of systemic integration and Article 31(3)(c) of the Vienna Convention.’ 54 International and Comparative Law Quarterly 279–320; Aust, A. (2013) Modern Treaty Law and Practice, 3rd ed., Cambridge University Press, Cambridge. See also for a further illustration of the broader legal complexities within which all work with legally binding international instruments is situated and which must be observed: Crawford, J. (2019) Brownlie’s Principles of Public International Law, 9th ed., Oxford University Press, Oxford; https://10.1093/he/9780198737445.001.0001. The LOSC invokes these complexities in, e.g., Arts. 237 and 311; see also Boyle, A. (2005) ‘Further development of the Law of the Sea Convention: Mechanisms for change.’ 54 International and Comparative Law Quarterly 563–84; https://doi.org/10.1093/iclq/lei017. This excellent and comprehensive paper also addresses the IA (supra, n (1)) in this context.
- 20.
Examples include: “sustainable development,” “compensating the common heritage.”
- 21.
Examples include: precautionary approach/principle, polluter-pays principle.
- 22.
Examples include: biodiversity, “ecosystem-based management.”
- 23.
For the LOSC, these are Articles 312–316. Special provisions exist for amendments relating to Part XI: LOSC Articles 155 (as modified by IA Section 4), 311(6), 314 and 316(5) & (6); IA Section 4. See also references and discussion supra (n 19).
- 24.
Verlaan, P.A. (2020) supra n (15); Verlaan, P. A. (2021) Future of deep-sea mineral resources: Environmental issues, in: Nordquist, M. et al. (Eds.) Legal, Scientific and Economic Aspects of Deep Seabed Mining: The International Seabed Authority at 25. Brill, Leiden; references and discussion supra (n 19).
- 25.
Ibid.; Verlaan, P.A. (2020) supra n (6); Verlaan, P.A. (2019) Environmental issues of deep-sea mining—a Law of the Sea perspective, in: Rahul Sharma (Ed.) Environmental Issues of Deep-Sea Mining, Springer Nature, Switzerland; Verlaan, P.A. (2009) ‘Geo-engineering, the Law of the Sea, and climate change.’ Carbon and Climate Law Review 2009 (4):446–458 (2009); see also Winther, J-G., Dai, M., et al. 2020. Integrated Ocean Management. World Resources Institute, Washington, DC. A Blue Paper commissioned by the High-Level Panel for a Sustainable Ocean Economy and available online at https://www.oceanpanel.org/blue-papers/integrated-ocean-management (last accessed 15 March 2021). The premise of this Blue Paper is correct both legally (i.e., under the LOSC) and scientifically (i.e., recognizing the fundamentally and inseparably interconnected nature of the marine environment). It wholly contradicts the premise of the proposed BBNJ instrument, which claims to protect only a small component of the marine environment: high seas biodiversity (see also Verlaan (2020) supra (n 15). If the marine environmental provisions of the LOSC, which also apply to the high seas (see LOSC Art. 87(1)) had been implemented and enforced by the LOSC States Parties (SPLOS), which meet annually, from the date of the LOSC’s entry into force in 1994, the oceans would be in better shape, and the concerns underlying the initial formation of the process that led to the current UN General Assembly Resolution A/RES/72/249: International legally binding instrument [ILBI] under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (hereinafter: BBNJ process), available at http://www.un.org/depts/los/general_assembly/general_assembly_resolutions.htm; accessed 6 March 2021, could have been addressed in a manner that is both legally and scientifically sound.
- 26.
Ibid. The BBNJ process should review its premise and amend the draft ILBI proposal accordingly.
- 27.
See, e.g., LOSC Art. 145, which requires “effective measures”, including regulations to, e.g.: “includ[e] the coastline”; identify “other hazards”, define “ecological balance of the marine environment” and “interference” therewith; “[prevent, reduce and control] pollution”, “hazards” and “interference”; “[protect and conserve] natural resources of the Area”; and “[prevent] damage to the flora and fauna of the marine environment”. Other marine environmental protection requirements relevant to SBM are found in, e.g., LOSC Article 1 and LOSC Part XII, a chapter dedicated entirely to the marine environment (e.g., Arts. 209, 215).
- 28.
Financial and economic information is also important here, but the modalities of their contributions are beyond the scope of this paper and the qualifications of its author. See also infra (n 31).
- 29.
This is one reason why “marine biodiversity” is neither a legally nor a scientifically acceptable proxy or substitute for “the marine environment” when implementation of the LOSC’s marine environmental protection requirements (such as in Part XI and Part XII) is concerned. See also Verlaan (2020) op. cit. supra (n 15).
- 30.
Relevant EST questions that lawyers are unlikely to ask include: Will this work in a force 9 gale? What mesh size must be specified for this purpose? See further Verlaan, P.A. (1997) ‘New seafloor mapping technology and Article 76 of the 1982 United Nations Convention on the Law of the Sea.’ Marine Policy 21(5):425–434.
- 31.
For SBM, the LOSC set up the Legal and Technical Commission (LTC) for this precise interdisciplinary purpose, as indicated by its name (LOSC Article 165). Economic expertise is included (see also supra (n 28)). The LTC is an embodiment, enshrined in law, of an ambitious attempt to fix the missing link for SBM. Whether or not the LTC in practice actually operates as effectively as could be wished in an ideal world is a different and important question which merits extensive discussion that is beyond the scope of this paper. As could be inferred from reflections on the role of the SPLOS in marine environmental protection (or rather the absence thereof) and the impetus for the BBNJ process set out supra in (n 25) above, problems in the functioning of a particular body are usually not solved by setting up a different body, let alone a different legally binding instrument. Instead, the problems more likely risk being exacerbated, particularly if the first body must remain operational as well. This would be the case for the LTC in the context of SBM, were, for example, an Environment Committee to be established by the ISA. Seeking to find fault with the law itself, rather than with its implementation, when the latter is unsatisfactory for reasons unrelated to its legal basis, is at the very least unhelpful.
- 32.
For example, the careless use of the word “significant …” which seems to have become a synonym for “a lot of” or, perhaps more accurately in actual practice, an uncertain quantity which the proponent appears to reserve the right to further specify under undefined circumstances also solely determined by the proponent—in other words, on no clear, objective, predictable, independently and externally verifiable basis.
- 33.
Austen, J. (1813) Pride and Prejudice. T. Egerton, London.
- 34.
It is hoped that this paper will stimulate this investigation.
- 35.
This can even occur in papers published by the most prestigious scientists in the most prestigious refereed journals: see, e.g., Rona, P.A. (2003): “The discovery of vent ecosystems was so unexpected that they fall outside the legal framework of UNCLOS.” “Resources of the sea floor.” Science 299 (5607): 673–674; https://10.1126/science.1080679. This statement is incorrect. All marine ecosystems, including those lucky enough to still remain undiscovered, fall with the legal framework of the LOSC.
- 36.
Craven, J.P. (2002). The Silent War: The Cold War battle beneath the sea. Simon & Schuster, New York. His proposition may well also offer an insight into the nature of the environment of the planet as a whole.
- 37.
Shakespeare, W. (1610–1611). From Ariel’s Song (2d stanza). The Tempest, Act 1, Scene 2.
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Verlaan, P. (2022). Achieving Effective Seabed Mining Regulation and Management: A Missing Link. In: Sharma, R. (eds) Perspectives on Deep-Sea Mining. Springer, Cham. https://doi.org/10.1007/978-3-030-87982-2_20
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