Tag Archives: United Nations Convention on the Law of the Sea

How to Regulate Mining in the Deep Seabed

 

mineral exploitation,pacific ocean, locations, image from wikipedia

Interest in mining the deep seabed is not new; however, recent technological advances and increasing global demand for metals and rare-earth elements may make it economically viable in the near future  Since 2001, the International Seabed Authority (ISA) has granted 26 contracts (18 in the last 4 years) to explore for minerals on the deep seabed, encompassing ∼1 million km2 in the Pacific, Atlantic, and Indian Oceans in areas beyond national jurisdiction However, as fragile habitat structures and extremely slow recovery rates leave diverse deep-sea communities vulnerable to physical disturbances such as those caused by mining (3), the current regulatory framework could be improved. We offer recommendations to support the application of a precautionary approach when the ISA meets later this July 2015….

The seabed outside of national jurisdictions [called the “Area” in the United Nations Convention on the Law of the Sea (UNCLOS)] is legally part of the “common heritage of mankind” and is not subject to direct claims by sovereign states. The common-heritage principle imposes a kind of trusteeship obligation on the ISA, created under UNCLOS in 1994, and its member states, wherein “the interests of future generations have to be respected in making use of the international commons”; those interests include both resource exploitation and environmental protection …

Efforts focused on the Clarion-Clipperton Fracture Zone (CCZ) in the abyssal Pacific provide a useful model. The CCZ as the largest known concentrations of high-grade polymetallic nodules, with potentially great commercial value . The scale of impacts that would be associated with nodule mining in the CCZ may affect 100s to 1000s of km2 per mining operation per year . In 2007, an international workshop brought together expert representatives from ISA and the scientific and international ocean law communities to develop design principles and recommendations for a network of marine protected areas (MPAs) in the CCZ off-limits to mining, to be considered by the ISA as part of a regional environmental management plan. The workshop used a recent assessment of biodiversity, species ranges, and gene flow in the CCZ to develop recommendations honoring existing mining exploration claims while incorporating accepted principles of ecosystem management ..

In 2012, the ISA pioneered a precautionary approach in the CCZ when it provisionally adopted the deep seabed’s first environmental management plan that included Areas of Particular Environmental Interest (APEIs), a modified version of the recommended MPA network from the 2007 workshop. The design principles used in developing the APEIs included (i) compatibility with the existing legal framework of the ISA for managing seabed mining and protecting the marine environment. (ii) minimizing socioeconomic impacts by honoring existing exploration claims; (iii) maintaining sustainable, intact, and healthy marine populations; (iv) accounting for regional ecological gradients; (v) protecting a full range of habitat types; (vi) creating buffer zones to protect against external anthropogenic threats (e.g., mining plumes); and (vii) establishing straight-line boundaries to facilitate rapid recognition and compliance (12)….

Meanwhile, the ISA continues to grant exploration contracts for large areas of other deep-sea habitats in the Indian, Atlantic, and Pacific Oceans. Preexisting or new exploration claims (up to ∼75,000 km2 for nodules) can erode the effectiveness of protected-area networks by preempting protection of critical habitats and by limiting population connectivity by causing excessive spacing between MPAs. We thus recommend that the ISA consider suspending further approval of exploration contracts (and not approve exploitation contracts) until MPA networks are designed and implemented for each targeted region.

Excerpts from L. M. Wedding et al., Managing mining of the deep seabed, Science 10 July 2015:
Vol. 349 no. 6244 pp. 144-145

How to Protect Marine Biodiversity in the Open Seas

deep blue sea

The United Nations General Assembly adopted a resolution on May 2015 (reissued on June 2015) aimed at drafting a legally binding international treaty for the conservation of marine biodiversity and to govern the mostly lawless high seas beyond national jurisdiction.The resolution was the result of more than nine years of negotiations by an Ad Hoc Informal Working Group, which first met in 2006.

If and when the treaty is adopted, it will be the first global treaty to include conservation measures such as marine protected areas and reserves, environmental impact assessments, access to marine genetic resources and benefit sharing, capacity building and the transfer of marine technology.

The High Seas Alliance (HSA), a coalition of some 27 non-governmental organisations (NGOs), played a significant role in pushing for negotiations on the proposed treaty and has been campaigning for this resolution since 2011…The General Assembly will decide by September of 2018 on the convening of an intergovernmental conference to finalise the text of the agreement and set a start date for the conference….

A new treaty would help to organise and coordinate conservation and management [in the high seas].  That includes the ability to create fully protected marine reserves that are closed off to harmful activities. Right now there is no way to arrange for such legally binding protections, she added….In a statement released Friday, the HSA said the resolution follows the Rio+20 conference in 2012 where Heads of State committed to address high seas protection.The conference came close to agreeing to a new treaty then, but was prevented from doing so by a few governments which have remained in opposition to a Treaty ever since.

The U.N. Convention on the Law of the Sea (UNCLOS), which is recognised as the “constitution” for global ocean governance, has a broad scope and does not contain the detailed provisions necessary to address specific activities, nor does it establish a management mechanism and rules for biodiversity protection in the high seas.  Since the adoption of UNCLOS in 1982, there have been two subsequent implementing agreements to address gaps and other areas that were not sufficiently covered under UNCLOS, one related to seabed mining and the other related to straddling and highly migratory fish stocks, she added. This new agreement will be the third implementing agreement developed under UNCLOS….

The “high seas” is the ocean beyond any country’s exclusive economic zone (EEZ) ‑ amounting to 64 percent of the ocean…

Excerpts from Thalif Deen, U.N. Takes First Step Towards Treaty to Curb Lawlessness in High Seas, IPS, June 19 2015

Governing the Oceans: a Dysfunctional Family

manganese nodules in seabed. Image from wikipedia

About 3 billion people live within 100 miles (160km) of the sea, a number that could double in the next decade as humans flock to coastal cities like gulls. The oceans produce $3 trillion of goods and services each year and untold value for the Earth’s ecology. Life could not exist without these vast water reserves—and, if anything, they are becoming even more important to humans than before.

Mining is about to begin under the seabed in the high seas—the regions outside the exclusive economic zones administered by coastal and island nations, which stretch 200 nautical miles (370km) offshore. Nineteen exploratory licences have been issued. New summer shipping lanes are opening across the Arctic Ocean. The genetic resources of marine life promise a pharmaceutical bonanza: the number of patents has been rising at 12% a year. One study found that genetic material from the seas is a hundred times more likely to have anti-cancer properties than that from terrestrial life.

But these developments are minor compared with vaster forces reshaping the Earth, both on land and at sea. It has long been clear that people are damaging the oceans—witness the melting of the Arctic ice in summer, the spread of oxygen-starved dead zones and the death of coral reefs. Now, the consequences of that damage are starting to be felt onshore…

More serious is the global mismanagement of fish stocks. About 3 billion people get a fifth of their protein from fish, making it a more important protein source than beef. But a vicious cycle has developed as fish stocks decline and fishermen race to grab what they can of the remainder. According to the Food and Agriculture Organisation (FAO), a third of fish stocks in the oceans are over-exploited; some estimates say the proportion is more than half. One study suggested that stocks of big predatory species—such as tuna, swordfish and marlin—may have fallen by as much as 90% since the 1950s. People could be eating much better, were fishing stocks properly managed.

The forests are often called the lungs of the Earth, but the description better fits the oceans. They produce half the world’s supply of oxygen, mostly through photosynthesis by aquatic algae and other organisms. But according to a forthcoming report by the Intergovernmental Panel on Climate Change (IPCC; the group of scientists who advise governments on global warming), concentrations of chlorophyll (which helps makes oxygen) have fallen by 9-12% in 1998-2010 in the North Pacific, Indian and North Atlantic Oceans.

Climate change may be the reason. At the moment, the oceans are moderating the impact of global warming—though that may not last.,,Changes in the oceans, therefore, may mean less oxygen will be produced. This cannot be good news, though scientists are still debating the likely consequences. The world is not about to suffocate. But the result could be lower oxygen concentrations in the oceans and changes to the climate because the counterpart of less oxygen is more carbon—adding to the build-up of greenhouse gases. In short, the decades of damage wreaked on the oceans are now damaging the terrestrial environment.

Three-quarters of the fish stocks in European waters are over-exploited and some are close to collapse… Farmers dump excess fertiliser into rivers, which finds its way to the sea; there cyanobacteria (blue-green algae) feed on the nutrients, proliferate madly and reduce oxygen levels, asphyxiating all sea creatures. In 2008, there were over 400 “dead zones” in the oceans. Polluters pump out carbon dioxide, which dissolves in seawater, producing carbonic acid. That in turn has increased ocean acidity by over a quarter since the start of the Industrial Revolution. In 2012, scientists found pteropods (a kind of sea snail) in the Southern Ocean with partially dissolved shells…

The high seas are not ungoverned. Almost every country has ratified the UN Convention on the Law of the Sea (UNCLOS), which, in the words of Tommy Koh, president of UNCLOS in the 1980s, is “a constitution for the oceans”. It sets rules for everything from military activities and territorial disputes (like those in the South China Sea) to shipping, deep-sea mining and fishing. Although it came into force only in 1994, it embodies centuries-old customary laws, including the freedom of the seas, which says the high seas are open to all. UNCLOS took decades to negotiate and is sacrosanct. Even America, which refuses to sign it, abides by its provisions.

But UNCLOS has significant faults. It is weak on conservation and the environment, since most of it was negotiated in the 1970s when these topics were barely considered. It has no powers to enforce or punish. America’s refusal to sign makes the problem worse: although it behaves in accordance with UNCLOS, it is reluctant to push others to do likewise.

Specialised bodies have been set up to oversee a few parts of the treaty, such as the International Seabed Authority, which regulates mining beneath the high seas. But for the most part UNCLOS relies on member countries and existing organisations for monitoring and enforcement. The result is a baffling tangle of overlapping authorities that is described by the Global Ocean Commission, a new high-level lobby group, as a “co-ordinated catastrophe”.

Individually, some of the institutions work well enough. The International Maritime Organisation, which regulates global shipping, keeps a register of merchant and passenger vessels, which must carry identification numbers. The result is a reasonably law-abiding global industry. It is also responsible for one of the rare success stories of recent decades, the standards applying to routine and accidental discharges of pollution from ships. But even it is flawed. The Institute for Advanced Sustainability Studies, a German think-tank, rates it as the least transparent international organisation. And it is dominated by insiders: contributions, and therefore influence, are weighted by tonnage.

Other institutions look good on paper but are untested. This is the case with the seabed authority, which has drawn up a global regime for deep-sea mining that is more up-to-date than most national mining codes… The problem here is political rather than regulatory: how should mining revenues be distributed? Deep-sea minerals are supposed to be “the common heritage of mankind”. Does that mean everyone is entitled to a part? And how to share it out?

The biggest failure, though, is in the regulation of fishing. Overfishing does more damage to the oceans than all other human activities there put together. In theory, high-seas fishing is overseen by an array of regional bodies. Some cover individual species, such as the International Commission for the Conservation of Atlantic Tunas (ICCAT, also known as the International Conspiracy to Catch All Tuna). Others cover fishing in a particular area, such as the north-east Atlantic or the South Pacific Oceans. They decide what sort of fishing gear may be used, set limits on the quantity of fish that can be caught and how many ships are allowed in an area, and so on.

Here, too, there have been successes. Stocks of north-east Arctic cod are now the highest of any cod species and the highest they have been since 1945—even though the permitted catch is also at record levels. This proves it is possible to have healthy stocks and a healthy fishing industry. But it is a bilateral, not an international, achievement: only Norway and Russia capture these fish and they jointly follow scientists’ advice about how much to take.  There has also been some progress in controlling the sort of fishing gear that does the most damage. In 1991 the UN banned drift nets longer than 2.5km (these are nets that hang down from the surface; some were 50km long). A series of national and regional restrictions in the 2000s placed limits on “bottom trawling” (hoovering up everything on the seabed)—which most people at the time thought unachievable.

But the overall record is disastrous. Two-thirds of fish stocks on the high seas are over-exploited—twice as much as in parts of oceans under national jurisdiction. Illegal and unreported fishing is worth $10 billion-24 billion a year—about a quarter of the total catch. According to the World Bank, the mismanagement of fisheries costs $50 billion or more a year, meaning that the fishing industry would reap at least that much in efficiency gains if it were properly managed.

Most regional fishery bodies have too little money to combat illegal fishermen. They do not know how many vessels are in their waters because there is no global register of fishing boats. Their rules only bind their members; outsiders can break them with impunity. An expert review of ICCAT, the tuna commission, ordered by the organisation itself concluded that it was “an international disgrace”. A survey by the FAO found that over half the countries reporting on surveillance and enforcement on the high seas said they could not control vessels sailing under their flags. Even if they wanted to, then, it is not clear that regional fishery bodies or individual countries could make much difference.

But it is far from clear that many really want to. Almost all are dominated by fishing interests. The exceptions are the organisation for Antarctica, where scientific researchers are influential, and the International Whaling Commission, which admitted environmentalists early on. Not by coincidence, these are the two that have taken conservation most seriously.

Countries could do more to stop vessels suspected of illegal fishing from docking in their harbours—but they don’t. The FAO’s attempt to set up a voluntary register of high-seas fishing boats has been becalmed for years. The UN has a fish-stocks agreement that imposes stricter demands than regional fishery bodies. It requires signatories to impose tough sanctions on ships that break the rules. But only 80 countries have ratified it, compared with the 165 parties to UNCLOS. One study found that 28 nations, which together account for 40% of the world’s catch, are failing to meet most of the requirements of an FAO code of conduct which they have signed up to.

It is not merely that particular institutions are weak. The system itself is dysfunctional. There are organisations for fishing, mining and shipping, but none for the oceans as a whole. Regional seas organisations, whose main responsibility is to cut pollution, generally do not cover the same areas as regional fishery bodies, and the two rarely work well together. (In the north-east Atlantic, the one case where the boundaries coincide, they have done a lot.) Dozens of organisations play some role in the oceans (including 16 in the UN alone) but the outfit that is supposed to co-ordinate them, called UN-Oceans, is an ad-hoc body without oversight authority. There are no proper arrangements for monitoring, assessing or reporting on how the various organisations are doing—and no one to tell them if they are failing.

Governing the high seas: In deep water, Economist, Feb. 22, 2014, at 51

The Wild West of the Oceans; pirates, private security firms and human rights

Private security teams patrol the decks of around 40% of large vessels in the “high-risk area” that stretches from the Persian Gulf to the Seychelles in the south and the Maldives in the east. When pirates attack, these armed guards respond with flares or warning shots. This usually scares off assailants (or sends them in search of easier prey). If it fails, they fire at an attacking boat’s engine, before finally turning their sights on the pirates. No ship carrying armed guards has so far been hijacked.

Most of the companies providing these guards are British, typically started by entrepreneurial former special-forces types. A four-man team can charge $45,000 for safe passage through the high-risk area. The cost to shipowners is partly offset by savings on insurance.

The idea may seem simple but its legal framework is not. Under the United Nations Convention on the Law of the Sea a ship’s crew, including guards, must abide by the home laws of a vessel’s flag state. But these vessels ply international waters, meaning that regulation is scant. An array of standards created since 2009 suggests good practice for private security teams, but none is legally binding.

Spurred on by the International Maritime Organization (which will debate the issue at a meeting next month), governments are now trying to write rules for armed guards at sea, such as how they buy and store the lethal tools of their trade. Britain wants a voluntary set of rules in place by the end of 2012, detailing the acceptable use of deadly force and systems for company auditing and accountability. It may suggest and define a “proportional” response to pirate attacks, along with approved weapon types and standards of training. Other countries are making moves too. American law now allows for the self defence of US-flagged ships within tight rules of engagement. India also allows armed guards; Greece is considering a similar step. The Japanese government is pondering a change to its strict laws, which prohibit civilian armed guards on ships.

The United Arab Emirates will this year start allowing armed international teams into its ports. At present most teams use Sri Lanka, Oman or Djibouti for weapons storage between jobs. They run the risk of prosecution if they carry arms in the territorial waters of Yemen and other states. John Bennett, of the Florida-based Maritime Protective Services says some firms play safe by throwing their guns overboard before heading home.

Pressure for new rules has come in part from human-rights organisations. Unknown numbers of Somali pirates have been killed at sea since 2005 as a result of clashes with naval and private protection forces. In at least one incident, security guards killed Somali fishermen, mistaking them for pirates. Such incidents evoke bad memories. The last thing that anyone wants, says Steven Jones, director of the Security Association for the Maritime Industry (SAMI), is a “Blackwater of the sea” (Blackwater, now renamed Academi, is a private security firm which was sued in Iraq after the shooting of 17 civilians. It denies any wrongdoing.)

The new British rules may help to shape those adopted by other countries in future. They emphasise transparency, with the aim of differentiating respectable companies from domestic or international “mavericks”. But complying with them will be voluntary and is likely to involve extra costs. Firms may simply move to territories with less demanding regimes. That could create two tiers in the security industry: one that is respectable and regulated, and one that lives by improvisation, not by the law. A bit like the pirates.

Piracy and private security:Laws and guns, Economist, Apr. 14,2012, at 69