What can justice look like on the bottom of the ocean?

With the rapid growth of the technology sector over the past decade, the demand for metals such as copper, manganese, cobalt and other rare earth minerals has increased many times over. The deep seabed as a potential source of these minerals seems particularly attractive against this backdrop, especially as industrial deep seabed mining is now close to operationalization. 

Advocates of seabed mining claim that it could become an important element in the development of a sustainable blue economy.  Opponents, on the other hand, point to its potentially catastrophic and irreversible environmental consequences, which threaten to diminish biodiversity, degrade ocean ecosystems and impinge on the ocean’s role in regulating the climate. Some critics question whether deep seabed mining would generate any economic benefits at all (read the Blogpost of IASS-Scientist Sabine Christiansen). 

Common heritage of mankind

Deep seabed mining can take place either in areas under the jurisdiction of a coastal state or outside areas of national jurisdiction. As early as 1970, all regions belonging to the latter, including the mineral resources therein, were defined as the "common heritage of (hu)mankind" (CHM). A legal status confirmed and given binding effect in the United Nations Convention on the Law of the Sea (UNCLOS) in 1982. Resource exploration and future extraction are under the management of the International Seabed Authority (ISA).

The ISA is mandated to develop, for the optimum collective benefit of all humankind, the mineral resources of the area, while taking the necessary measures to effectively protect the marine environment from the harmful effects of mining activities.

The CHM principle involves the equitable distribution of benefits. It seeks to apply the concept of solidarity within and between generations: Future generations are entitled to a share of the heritage that provides them with the same opportunities and values as previous generations. Therefore, their potential needs and interests must be included in ongoing decision-making processes (Christiansen et al., 2019) . At the same time, the distribution of financial and other economic benefits derived from the extraction of the area's minerals is intended to reduce the imbalance between the global North and South.

Currently, the ISA is working on the regulations governing the mining of deep-sea mineral resources, which will allow states and entities under the supervision of a sponsoring state to obtain mining contracts and begin commercial mining of minerals in the Area. A number of states and in particular observers from academia (DOSI, IASS), non-governmental organizations (Pew, DSCC) and intergovernmental organizations (IUCN) as well as the fisheries sector have expressed reservations around the lack of consideration to the CHM principle in the proposed mining regime. In addition, too little is being done to implement the concept of Ecosystem-based Management (EBM), no adequate benefit sharing regime has been provided, and no precautionary environmental protection regulations have been formulated.

This is because the Convention on the Law of the Sea does not provide clear guidelines for the implementation of the CHM. The ISA would need to answer some questions in advance: Who is "humankind"? How might the voices of the global community - not just states - in their diverse and sometimes conflicting opinions and interests be incorporated? What are the net benefits of deep seabed mining if the marine environment were irreversibly damaged locally, regionally, and globally? What does a fair and equitable distribution of financial and other economic benefits entail?

How is humankind represented?  

All state parties to the Law of the Sea Convention are member states of the ISA and together constitute the Assembly, which is responsible for electing a Council. The Council is the executive body of the ISA and consists of 36 members . Intergovernmental and nongovernmental organizations granted "observer status" are permitted to attend Assembly meetings. This status provides limited speaking rights but does not include the right to vote or otherwise actively participate in the ISA decision-making process.

Implications of a nation-state advocacy group

The key question is whether broader representation of humankind could be achieved through governmentally independent organizations (Christiansen et al., 2018; Bourell et al.,2016). The decision-making process surrounding the management of the deep seabed mineral resources in the Area must be transparent and pursue a participatory approach, rather than discussing possible fairness in resource allocation only after the fact. There needs to be adequate representation, especially from the younger generation, to allow them to participate effectively in the future of the common heritage of humankind. This goal cannot be achieved through a member state representation format, as is the case today. For while the potential beneficiaries are limited to a handful of states and private entities, and thus primarily geopolitical interests influence decision-making and threaten the pursuit of a collective best-case outcome, the environmental costs must be borne by all of humanity.

The prevailing narrative of the "race to the bottom" supports the assumption that mining is inevitable. However, this mindset is problematic because it imposes an urgency for mining to begin. This mindset prevents other options for the area from being properly considered and rethought in light of current scientific knowledge. The discourse in the ISA lacks  an alternative vision for humanity's shared heritage. It needs a narrative that goes beyond simply refraining from deep-sea mining and instead focuses on deep-sea exploration and its contribution to climate regulation, ocean health, and human well-being. These issues must be negotiated as core interests of our and future generations, and embedded in the global context of sustainable development. How can we meet the needs of the present without compromising the opportunities of future generations? In terms of our resource consumption, this means limiting it and weighing the potential negative effects of deep-sea mining against the presumed added value of widespread mining.

Voice and representation

In recent months, calls for a postponement (moratorium) of deep seabed mining activities for at least ten years have grown louder and a petition  has been launched. A moratorium would not only allow the scientific community to adequately research the ecology of the deep seabed, but equally allow for more open and thoughtful discussions about how to reap the benefits of the deep sea. Ultimately, it is a matter of making an equitable decision for all of humanity.

A deferral would give the ISA Member States time to consider whether a more participatory and representative decision-making process could not be adopted; whether the chosen path will unduly disadvantage some populations or groups of people; whether deep seabed mining can in fact deliver the promised benefits and economic progress to developing countries; and how any potential benefits could be equitably distributed in line with the common heritage doctrine.

Current trends suggest that we have fallen victim to the "sunk cost fallacy." We have invested in this project: decades of work and time, and a lot of money. Now we want to finish this project at any cost. We are investing more and more in order to avoid being seen as a failure. Not everything that was built with the ISA is bad. But with states and corporations vying to be the first to lift the promised treasures from the bottom of the sea, the world community is hurtling towards an inequitable outcome that will have grave consequences for the marine environment.

If justice is to prevail in terms of the common heritage of humankind and the deep-sea mining regime built upon it, then everyone must pause and question both the end and the means. Most importantly, we must all speak up and engage as stakeholders in deep seabed decision-making.