By: Jack Gagner
Between Hawaii and Mexico lies a 1.7 million square mile tract of ocean floor that may hold the key to the global shift to clean energy. Scattered across the sea floor in the Clarion-Clipperton Zone are rocks rich in manganese, nickel, cobalt, and copper; all minerals required to produce batteries for electric vehicles and other emerging green technologies. The Metals Company is the latest in a long line of ventures seeking to commercialize these seafloor metals, in the process of which it promises to “enable the battery-powered shift to clean energy and electric vehicles with the lightest planetary touch.” Early scientific research has raised concerns about the effects deep sea mining could have on the ocean floor, but equally concerning is a recent publication uncovering systematic corruption in the international authority tasked with its regulation.
Commercial interest in deep sea mining began to grow in the 1960s largely due to the work of John L. Mero, who saw the potential for seabed mineral deposits to supplant exhausted land-based sources in industrial production. Although the sea floor rocks, known as polymetallic nodules, form too slowly to be inexhaustible, the nodule deposits in the Clarion-Clipperton Zone alone are thought to contain roughly ten times the amount of manganese available on land.
As recognition of the economic potential for deep sea mining grew, so did concerns over who would reap its rewards. The United Nations General Assembly took up the matter in 1973, and after nine years of discussions produced the 1982 United Nations Convention on the Law of the Sea, a multilateral treaty creating the International Seabed Authority. In addition to regulating seabed mining in areas of the ocean beyond national jurisdictions, the Seabed Authority has mandates to “ensure the effective protection of the marine environment” and to reduce global inequality by managing data surrounding seabed resources in a way that advantages developing countries.
The environmental calculus surrounding seabed mining has grown more complex as the clean technology sector and electric vehicle industry have come to the fore of the international conversation around climate change. Seabed mining companies promise to provide the battery metals required to transition to clean energy and electric vehicles while generating less CO2 than land-based mines, and without the deforestation, child labor, and disruption to indigenous communities that often accompany land-based operations. However, the scientific community is concerned with the ecological impact of seabed mining itself, leading to what has been described as a “sustainability paradox.” The ocean floor is one of the least–understood environments on earth, and many researchers highlight the devastating and irreversible effects deep sea mining could have on the entire marine ecosystem, including “large-scale habitat removal” on the ocean floor and the vast disruption of ecological function as sediment plumes rise in the wake of mining operations. Meanwhile, proponents of seabed mining cite peer-reviewed studies that mitigate those concerns, leaving the environmental effect of ocean mining an open question, as it has been since the idea was first introduced over 50 years ago.
Whether seabed mining emerges as key to the solution to climate change or a destructive and opportunistic business venture, recent journalism has uncovered industry practices that threaten to undermine the very purposes for which the international regulatory system was created. Criticism of the International Seabed Authority (“Seabed Authority”) for an institutional outlook at odds with its mandate is not new; years before the latest investigations, scholars described the Seabed Authority as “entrenched in the mindset of a developer rather than a custodian of the common heritage of humankind.” A recent examination of documents from the Seabed Authority and The Metals Company reveal the extent to which that accusation rings true today: in what is described as a “single-minded, 15-year-long courtship,” the documents reveal that for years the Seabed Authority has been rewarding The Metals Company executives’ solicitation with special treatment, including classified data identifying the most valuable tracts of seabed and reserving those areas for the future use of the company.
Under the Seabed Authority’s ecological and equitable mandate, that data should have been available to developing nations first, giving them important leverage to negotiate lucrative commercial relationships with companies to extract the minerals. Instead, with the data provided by the Seabed Authority, The Metals Company secured the small Pacific Island nations of Nauru and Tonga as sponsors for its operation at what has been reported to be the small price of $2 per ton of mined material, less than “half of one percent” of its total estimated value. One international maritime lawyer, who has previously served as a delegate to the Seabed Authority, described the arrangement as a “legal loophole,” and the “exact opposite of what the law of the sea intended.”
Like the merits of seabed mining more broadly, assessing the International Seabed Authority’s recent conduct is complex, and raises questions about whether the Convention on the Law of the Sea could ever effectively govern the vast and uncharted resource that is the ocean floor. Although The Metals Company claims, with a degree of legitimacy, that its work with the small island nation of Nauru will reduce “barriers to participation,” it is difficult to look past the exploitative circumstances in which the relationship began, and under which the future of seabed mining may be conducted. The Seabed Authority’s practices over the last two decades are a near-archetypal demonstration of regulatory capture; whether that capture is for the good of the planet, and not just for the good of The Metals Company’s shareholders, is yet to be seen.
Student Bio: Jack Gagner is a second-year student at Suffolk University Law School. He is a staff writer on the Journal of High Technology Law. Jack received a Bachelor of Music Degree in Classical Trombone Performance from the University of Toronto.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
