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Seabed Activities in Domestic Jurisdictions: Why Coastal States should pay attention to the work of the International Seabed Authority9 May 2024

This article forms part of Watson Farley & Williams’ Deep Seabed Mining Insight Series, which draws on the firm’s unparalleled experience and expertise in deep seabed mining matters to provide insightful, timely and commercially relevant updates on deep seabed mining legal and regulatory issues. Previous topics include an explanation of the International Seabed Authority’s decision-making processes, an examination of proposals for a ‘pause’ on deep seabed mining, the role and rights of Sponsoring States, the rights of contractors and dispute settlement options under UNCLOS.

"States are free to regulate and develop domestic seabed activities in the parts of the ocean that are subject to their jurisdiction."

Introduction

As outlined in our previous Deep Seabed Mining Insights, the International Seabed Authority (the “Authority” or ISA) has a comprehensive mandate for regulating activities in the “seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” (i.e., the “Area”). In undertaking that mandate, the Authority is obliged to ensure the effective protection of the environment from the potential harmful effects of seabed activities and to prevent, reduce and control pollution. At the same time, States are free to regulate and develop domestic seabed activities in the parts of the ocean that are subject to their jurisdiction. And, indeed, a number of States have approved or are considering a variety of projects on the seabed within their jurisdiction.

Whilst domestically regulated seabed activities are not subject to the ISA’s regulatory authority, the rules it is preparing will have direct legal implications for how States regulate such activities. This article explains how UNCLOS requires States to meet or exceed the standards being set by the ISA in relation to pollution control and considers what this might mean for the regulation of seabed activities by States.

The rights and duties of Coastal States in regard to waters outside of the Area

Under Article 153(2) of UNCLOS, the ISA is responsible for organising, carrying out and controlling “[a]ctivities in the Area”. The ISA has no jurisdiction or authority over seabed activities taking place outside of the Area. The Mining Code, in particular, applies only to activities in the Area and has no direct application in waters that are subject to national jurisdictions. Instead, such waters and activities that take place there are governed by the relevant domestic legal regimes.

That said, when designing and implementing regulation of seabed activities, Coastal States are subject to a range of rights and duties spelled out in UNCLOS. From an environmental protection standpoint, there are two key obligations relevant to domestic regulatory frameworks for seabed activities adopted by Coastal States:

"When designing and implementing regulation of seabed activities, Coastal States are subject to a range of rights and duties spelled out in UNCLOS."

  • under UNCLOS Articles 192 and 194(1), all States, including Coastal States, have an obligation to protect and preserve the marine environment, to take all measures consistent with UNCLOS that “are necessary to prevent, reduce and control pollution of the marine environment…using…the best practicable means at their disposal and in accordance with their capabilities” and to “endeavour to harmonize their policies” to ensure such pollution control is secured; and
  • more specifically, under Article 208 of UNCLOS, Coastal States are required to adopt laws and regulations to “prevent, reduce and control pollution of the marine environment arising from or in connection with” seabed activities and from “artificial islands, installations and structures” subject to the Coastal State’s national jurisdiction. Importantly, these laws and regulations must be “no less effective” than “international rules, standards and recommended practices and procedures”.

Coastal States therefore have obligations under international law to prevent, reduce and control pollution of the marine environment and their compliance with this obligation is to be measured against internationally applicable comparators.

What types of activities does Article 208 cover?

Article 208’s scope is broad – it is not limited to particular types of seabed activities nor defined to exclude certain industries. Article 208 also applies in relation to pollution arising from “artificial islands, installations and structures” that are within a State’s jurisdiction. Given this breadth, the scope of activities likely covered by Article 208 includes:

  • exploring for mineral resources, oil and gas deposits and other similar resources on the seabed;
  • drilling for, collecting and otherwise exploiting seabed resources;
  • dredging of the seabed;
  • bottom trawling for ground fish and other seabed species; and
  • constructing structures and installations on the seabed (such as oil platforms and offshore wind turbines).

"Article 208 also applies in relation to pollution arising from 'artificial islands, installations and structures' that are within a State’s jurisdiction."

Furthermore, Coastal State pollution controls must encompass pollution “arising from or in connection with” such seabed activities. This extends the responsibility to control pollution to all parts of the activities, not just pollution that comes directly from the activity itself.

What does “pollution of the marine environment” mean?

The phrase “pollution of the marine environment” is defined at Article 1(1)(4) of UNCLOS as:

the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, 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 for use of sea water and reduction of amenities[.]

Article 1(1)(4) tracks a traditional understanding of “pollution”, which focusses on activities that introduce new or foreign materials or substances into a given environment, causing harmful effects to the environment’s living resources, quality, amenities, or usability.

Under Article 208, Coastal States’ pollution control responsibilities are not identical to those of the ISA in the Area, which must ensure “effective protection for the marine environment” from harmful effects, per Article 145. The latter provision is broader and likely imposes additional responsibilities upon the Authority as compared to the obligations Article 208 imposes on Coastal States. Noting that all States also have a general obligation to “protect and preserve the marine environment” under Article 192 of UNCLOS.

That said, there is likely significant overlap between these obligations. Many of the potentially harmful effects covered by Article 145 can arise from the introduction of new substances to the marine environment. Harmful effects may also arise from potential disturbances or relocations of material within the environment or from one part of the environment to another. If these types of disturbances can be characterised as “introducing” materials or substances into the marine environment, they are arguably also covered by UNCLOS’s definition of pollution and therefore must be controlled by Coastal States in accordance with Article 208. In the same way, Article 208’s reference to “energy” is open-ended and could be read expansively to widen the scope of relevant harmful impacts upon the environment. Such an expansive reading may find greater acceptance today, as modern international environmental law jurisprudence on pollution develops and grows.

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"Coastal States’ pollution control responsibilities are not identical to those of the ISA in the Area, which must ensure 'effective protection for the marine environment' from harmful effects, per Article 145."

What are the relevant international measures at play, and how do they relate to Coastal State regulations? 

Under Article 208, Coastal States must develop a domestic regulatory regime governing pollution arising from seabed activities subject to their jurisdiction and ensure that this regime is “no less effective than international rules, standards, and recommended practices and procedures”.

UNCLOS does not specify which international rules, standards and recommended practices and procedures need to be followed. However, standard principles of treaty interpretation suggest that they should include standards that have achieved widespread or general acceptance among the international community, this would include measures created by the ISA itself. As the key international organisation established under UNCLOS and working on regulations regarding deep seabed activities, the ISA’s own pollution protections should be central to the development of any 1 regime. Article 208 makes it a legal obligation for Coastal States to ensure that their domestic regulation of seabed activities is at least as effective as the rules being prepared by the ISA.

What is the impact of the ISA’s Mining Code?

The Mining Code (the “Code”, currently under negotiation) has a range of detailed and potentially onerous proposed provisions. Some of the proposed provisions in the Code may diverge significantly from current approaches to nationally governed marine projects and be difficult to implement in practice.

Potential elements that may be particularly relevant to Coastal States include: complex and potentially rigid procedures for conducting environmental impact assessments, unclear standards of “harm” and “serious harm”, environmental thresholds designed for deep-sea regions that may be difficult to apply closer to shore, and a prescriptive approach to the Code that may discourage creativity in regulatory design, leading to a uniformity that may not fully meet the unique needs of different projects. For example:

"A failure to comply with Article 208 would constitute a breach of UNCLOS, exposing them to legal action by other States Parties under UNCLOS’s dispute resolution provisions."

  • the draft regulations currently use a variety of different (and potentially incompatible) standards for evaluating harm to the marine environment, including “serious harm”, “harm” and “harmful effects” (see e.g., draft regulations 4, 13, 44, 46 and 53ter);
  • draft regulation 47 currently contemplates a potentially complex, unclear and detailed regime for conducting environmental impact assessments as part of applications for exploitation activities in the Area;
  • draft regulation 45(2) requires the Council of the Authority to adopt environmental standards including “[i]ndicators and quantitative environmental thresholds”. Whilst these will not apply directly within Coastal State’s jurisdictions, they will likely set the standard for what environmental impact is acceptable for seabed activities in such waters.
  • draft regulation 55 Alt.2 establishes an Environmental Compensation Fund requiring contractors to pay for any measures necessary to limit, remedy and compensate any damage to the Area arising from their mining activities. The draft regulation currently sets no severity threshold and could be used to levy penalties on contractors for minimal or minor pollution incidents or other forms of harm.

Which Coastal States could be impacted by the ISA’s work?

There are a range of Coastal States with active or planned projects on the seabed that is subject to their jurisdiction. Examples of Coastal States that could be potentially impacted by the ISA’s adoption of the Mining Code include:

  • Namibia, which maintains alluvial diamond mining operations off its Atlantic coast, requiring resource-intensive extraction efforts to remove the diamonds from gravel beds underneath the ocean floor;
  • Indonesia, which hosts formal and informal offshore dredging operations to harvest marine tin in archipelago waters;
  • Norway, which has opened a 108,000-square-mile expanse of the Norwegian sea to seabed mining exploration;
  • Japan, which is planning to extract rare earth metals from the seabed off Minami-Torishima Island, an atoll in the Pacific Ocean;
  • Nigeria, in relation to deepwater offshore drilling to spur oil and gas production;
  • Spain, in relation to certain fishing techniques used within its waters to the extent these amount to seabed activities; and
  • The United Kingdom, Germany and France, in relation to offshore wind power generation.

These States and a variety of others will need to keep abreast of the ISA’s work to understand the international standards that, when adopted, will impact their own domestic regulatory regime.

"Coastal States should follow the work of the Authority closely, in particular the development of the Mining Code."

What are the consequences for failing to meet Article 208’s standards?

For Coastal States, a failure to comply with Article 208 would constitute a breach of UNCLOS, exposing them to legal action by other States Parties under UNCLOS’s dispute resolution provisions. Available UNCLOS dispute fora include the International Court of Justice, the International Tribunal for the Law of the Sea and its Special Chambers and/or ad hoc arbitral tribunals, depending on the selections made by the relevant States Parties under UNCLOS’s dispute settlement provisions. For more on UNCLOS’s dispute settlement regime, see our recent Insight on the topic.

Article 208 breaches could also expose Coastal States to domestic liability or legal risk in certain circumstances. If Coastal States have made international treaties like UNCLOS directly applicable within their own domestic legal regime, non-governmental stakeholders or other entities can potentially use the obligations contained in Article 208 to challenge the State’s environmental regulatory regimes or specific seabed activities that are subject to the State’s jurisdiction.

Takeaways

Coastal States should follow the work of the Authority closely, in particular the development of the Mining Code. Coastal States that are Member States of the Authority, in particular, should endeavour to ensure that the Code contains requirements that are workable in their own domestic regimes governing seabed activities that are subject to their jurisdiction, given their obligations under Article 208 of UNCLOS. Once the Code is finalised and adopted, Coastal States will also need to consider whether their own domestic requirements need to be updated to track the standards the Code expresses.

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