Symposium: Small States, Legal Argument, and International Disputes
The seabed mining rush and the legal statecraft of Small Island Developing States
by Daiana Seabra Venancio
Published on 24 July 2023
Small Island Developing States (SIDS) are well-known for their activism on global warming and sea-level rise. However, despite their united view on climate change impacts, SIDS members have diametrically opposed views over deep seabed mining beyond national jurisdiction (DSM), which this analysis will explore. Thus, the question is how to reconcile the push to start seabed mineral resources exploitation by States in Oceania like Nauru, Kiribati, Tonga, and Cook Islands, with the strong opposition of other SIDS in the same region as Fiji, Tuvalu, and Vanuatu?
In order to clarify the scope of this analysis, the focus is on legal statecraft rather than strategic litigation for a simple reason: advisory opinions from international courts are not technically litigation, and the outcome is not binding. Another essential element is what these States aim to achieve. Instead of pursuing a dispute with a developed State, part of SIDS’ strategy involves using the International Tribunal for the Law of the Sea (ITLOS) and the International Seabed Authority (ISA) to accelerate mining in the deep seabed beyond national jurisdiction (‘the Area’). In particular, as will be discussed, Nauru has attempted to trigger a legal deadline to bring into effect ISA regulations that would allow DSM to commence. This has been resisted by other small island States. This case study is therefore an example of a dispute between smaller States, rather than between a small State and a great power.
Despite the early lead of Maltese ambassador Arvid Pardo in 1967 in raising seabed mining at the United Nations, small island States did not take clear leadership in discussions about a seabed mining regime. Developed States resisted ideas pushed by developing countries seeking equitable distribution of the benefits of DSM, including the concepts of the common heritage of mankind, transfer of technology, and protection for the developing countries that export mineral commodities being incorporated in the United Nations Convention on the Law of the Sea (UNCLOS). Hence, UNCLOS’ original text was ready to enter into force without any developed country ratifying it due to their concerns about the Area mining regime in Part XI. This scenario resulted in the Agreement Relating to the Implementation of Part XI, adopted in 1994, that implemented significant changes in the Area regime to persuade developed States to adopt the UNCLOS Convention. Indeed, the Agreement successfully brought developed countries to ratify UNCLOS, which currently has 168 State parties.
Nevertheless, many things have changed since UNCLOS entered into force. The drive to start DSM cooled down due to the high costs involved and the relatively lower prices of mineral commodities in the international market. Meanwhile, technological progress combined with marine scientific research advances increased awareness of the ecosystems in the deepest areas of the ocean. What once was considered a sterile environment now reveals a rich and unique biodiversity. As a result, several transnational companies currently support a moratorium on DSM, while developed countries like Germany and Spain have called for a precautionary pause, and France supports a DSM ban.
While developed States are raising concerns about mining activities in the Area, the SIDS in the Oceania region have two groups with opposite interests: the island States pro-seabed mining and those against it. For example, Fiji, French Polynesia (French territory), Guam (US territory), New Zealand, Palau, Solomon Islands, Palau, Vanuatu, and Tuvalu are part of the Pacific Parliamentarians’ Alliance on Deep Sea Mining and they share concerns over DSM. On the other hand, we have twenty-two contracts for exploration in the ISA, in which twelve States are continental, and nine are islands. Two of the nine island States are sponsored by developed countries—the United Kingdom and Japan—and seven by developing countries: Cook Islands, Cuba (as part of the Interoceanmetal Joint Organization), Jamaica, Kiribati, Nauru, Singapore, and Tonga. These seven sponsoring countries in the ISA are, under the scope of this analysis, the countries in favor of DSM.
The SIDS supporting DSM argue that they have limited opportunities for sustainable economic growth and are under the sea-level rise threat. Thus, these countries want to promote their own development and overcome the marginalisation they were subjected to during the colonial period. Indeed, Nauru has led the charge to use the international institutions ISA and ITLOS to initiate exploitation activities in the Area. Meanwhile, the Cook Islands and Kiribati are discussing minerals exploration in the ocean areas under their jurisdiction. Interestingly, Papua New Guinea was the first country to engage in DSM on their exclusive economic zone through the Canadian company Nautilus Minerals Inc. However, due to payment delays and other issues, the country changed sides and called for a DSM moratorium in 2019.
In 2010, during the 16th ISA Council session, Nauru proposed submitting a request for an advisory opinion to the Seabed Disputes Chamber of ITLOS to clarify sponsoring State responsibility and liability for the activities of private companies engaged in DSM in the Area. This was important as, theoretically, strict liability for environmental damage in the event of a DSM disaster could result in liabilities exceeding the GDP of many SIDS. As a result, the ISA Council requested an advisory opinion from the Seabed Disputes Chamber, resulting in the ITLOS Case 17, which recognized the due diligence obligation to secure compliance with the UNCLOS provisions as well as the ISA standards for environmental protection. In case of environmental damage related to the failure to carry out the due diligence responsibility, the sponsoring States will be held liable. That said, due diligence obligations do not involve strict liability. In a more recent push, the President of Nauru submitted a letter on 25/06/2021 requesting the ISA Council to complete the regulations and procedures for seabed exploitation within the two-year deadline provided for in the Agreement on Part XI.
This use of the law of the sea framework to push in favor of DSM shows a dynamic shift in DSM regime leadership from developed countries to SIDS. As a result, if seabed mining exploitation starts this year in the Area, this will directly result from SIDS legal statecraft. Particularly, Nauru’s efforts to clarify the legal regime and bring enabling regulations into force. Yet, the SIDS opposed to DSM are losing the battle to try to stop ocean mining. So, is this an opportunity for SIDS against DSM and developed States to join forces? Such an alliance between developing and developed States—that would have been inconceivable during the UNCLOS negotiations—may be the only way to prevent the imminent beginning of seabed mining.