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Regime Interaction between Deep Sea Mining and the Conservation of Biodiversity in Areas Beyond National Jurisdiction

By Digvijay Rewatkar*
Published on 13 April 2023

The question of conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) in their current form have been under discussion since the 2015 recommendations of the Preparatory Committee vide UNGA 69/292. In 2018, the discussions were elevated to a formal body constituted vide UNGA 72/249 to the Inter-governmental Conference (IGC) under the auspices of the United Nations (most recently, the IGC5bis in March 2023) which decided to negotiate on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction under the United Nations Convention on the Law of the Sea (UNCLOS). Particularly, the discussions were aimed to address the issue of biodiversity loss and degradation of ocean ecosystems through warming, acidification, pollution and unsustainable use. To realize these goals in a coherent and cooperative manner the BBNJ Agreement is aimed at offering clarity on the access, sustainable utilization and sharing of benefits of the marine genetic resources and, strengthen coordination on the use of area-based management tools for marine protected areas. Further, the BBNJ Agreement is aimed at operationalising the provisions of UNCLOS related to environmental impact assessments and enable inclusive, equitable and effective participation of developing States through capacity-building and the transfer of marine technology.

For areas beyond national jurisdiction (ABNJ), the UNCLOS regime has an established institution i.e., the International Seabed Authority (ISA) mandated to organize and control all mineral resources related activities in the Area for the benefit of humankind as a whole. In addition, one of the core functions of the ISA is to regulate competences to prevent, reduce and control marine pollution and prevent damage to the flora and fauna from mining activities in the Area (Article 145, UNCLOS). The ISA has an operational legal architecture managing 31 exploration contracts which involve 21 different Sponsoring States including 12 developing States and 5 SIDS.

In that regard, there are questions of regime interaction of the deep seabed mining and the BBNJ regime which arise and need further clarity. This essay will therefore address the following questions, (1) What is the nexus between deep sea mining (DSM) and the BBNJ regime? (2) what are the options for governance integration for conservation and preservation of marine biodiversity between DSM and BBNJ regimes?

Through discerning such regime interaction there is an increased scope for experience sharing and cross-fertilisation in the domain of marine scientific research, protection of the marine environment, area-based management tools , environmental impact assessment, capacity-building and transfer of technology. Reviewing such regime interaction ensures that the developments under the BBNJ Agreement are fully consistent with provisions of the UNCLOS (ISBA/25/A/17, para 22) and that they do not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies (ISBA/25/A/17, para 24).

Nexus between Deep Sea Mining and BBNJ

The UNCLOS preamble outlines the interrelated nature of the problems of the ocean space and encourage the consideration of these problems in their entirety. In this regard, the ISA acts as a custodian to the seafloor mineral resources to manage their exploration and exploitation to realise the mandate of common heritage of [hu]mankind. However, despite such an overarching regime under the UNCLOS, the regulation of ocean activities is characterised by a sectoral approach, uncoordinated institutional fragmentation, and regulatory ineffectiveness in ABNJ.

For instance, the development process of regional environmental management plans (REMP) of the ISA involves, information exchange for plan development, review of the scientific information and data, and the development of scientific methods and approaches for environmental management measures. This is realised through a muti-stakeholder exchange between environmental and conservation, technology, legal and policy experts, and indigenous peoples to discuss potential environmental management measures. The review of such a REMP takes place after five years of its implementation to incorporate any significant new available scientific data from contractors and other stakeholders.

However, the decision to establish environmental monitoring plans stem from the obligations under the UNCLOS, and such plans are not legal instruments but, instruments of environmental policy (ISBA/27/C/37, para 8). For example, the REMP for the Clarion-Clipperton Zone establishes a representative network of nine areas of particular environmental interest as an ABMT to prohibit mining however, this provision can be overturned on review and does not supersede the rules, regulations and procedures related to exploration and exploitation. This ABMT only indicate how the ISA intends to apply these rules in light of the need for a precautionary approach. Further, the recommendations of the various stakeholders in the review process are only to develop a sound scientific baseline and are not in the form of binding legal obligation.

The BBNJ Agreement is aimed at augmenting the measures to address the protection of marine biodiversity in the deep seabed and the high seas, which have remained unregulated under the current UNCLOS regime. Increasingly, there is an emergent consensus on the need to promote cross and multi-sectoral cooperation and coordination in order to achieve sustainable outcomes in the oceans. This is reflective in the current negotiation of Article 5 of the BBNJ Agreement and with the adoption of an ecosystem approach which encourages strengthened institutional coordination, an integrated approach for resilience and restoration along the principles of equity. It is therefore important to identify the avenues for institutionalised decision-making within the BBNJ Agreement which provide for increased integration of comprehensive environmental management.

Options for Governance Integration

The ecosystem approach under the BBNJ Agreement enhances the qualitative compliance with the environmental obligations and the identification of the areas of governance integration with the DSM regime is crucial for the effective creation, implementation, and enforcement of international law applicable in ABNJ. Therefore, does the BBNJ Agreement offer a stakeholder-inclusive and binding decision-making process for ABMTs to augment the policy regime in the DSM regime?

In this regard, the BBNJ Agreement envisions a collaboration between a multitude of stakeholders to achieve the key objectives under this legal instrument, such as with the ABMTs. Under the ISA regime, the protection of the marine environment under Article 145 of UNCLOS is value oriented which emphasises on the prevention, reduction and control of pollution with disparate involvement of the stakeholders and needs to be more stakeholder-inclusive considering the diversity of stakeholders involved in the ocean management processes (Article 18, BBNJ Agreement). The ecosystem approach within the BBNJ Agreement envisions a process involving a Scientific and Technical Body which is constituted by multi-disciplinary experts rostered (Article 49) for monitoring and reviewing ABMTs (Article 21) under the purview of the Conference of Parties (Article 48). Such consultations at the level of the Scientific and Technical Body and the Conference of the Parties lead to a continuous management and monitoring of oceans spaces.

The BBNJ Agreement also envisions coordinating, proposing, implementing, and deciding on measures for the establishment of ABMTs in collaboration with relevant legal instruments and frameworks such as with the ISA (Article 19). This process involves various stakeholders within an institutionalised framework to contribute towards the development, review, revision and monitoring of ABMTs (Article 21) across global, regional and sectoral bodies (Article 49).

Therefore, such cross-sectoral coordination and consultation could lead the ISA to adopt a robust precautionary and ecosystems approach considering the environmental risks and costs of commercial exploitation against the ambitions and stronger norms of marine biodiversity conservation under the BBNJ Agreement. This is further augmented by the binding decision-making process under Article 19bis(3), and review of the decisions taken on ABMTs through the Conference of Parties under Article 21. For this purpose, the coordination in the ABNJ could be operationalised through stakeholder mapping, institutionalised exchange of information, a clearing house mechanism for information collection and exchange, and a collective arrangement with existing regional/ global bodies.

Way Forward for Integrated Governance

The ISA has contracted a total area of 1.3 million sq. kilometres of the total ocean floor. While the UNCLOS and the BBNJ Agreement correctly recognise the continuous nature of the ecosystems, and the potential for a contagion effect of human activities in the deep sea, the BBNJ is an instrument which manages larger spaces of the ABNJ, and will need to learn from the existing testbed of management tools, regulations, rules, and guidance developed by the ISA. The BBNJ Agreement is envisioned to deliver effective protection and preservation measures for marine biodiversity and to deliver on its mandate through synergising the efforts with relevant legal instruments and frameworks which are already operating in this space. The BBNJ regime holds the potential to augment the governance and deliver on the ecosystems management approach so required in the ABNJ.

Digvijay Rewatkar is an Assistant Professor (Research) at the Rashtriya Raksha University, and assists the Member, UN International Law Commission 2023-27 from India.