The International Seabed Authority is preparing to release an 18-year data set showing the environmental impact of deep seabed mining, allowing researchers to assess the effect of mining operations on the deep seabed ecosystem.
Mining interests are racing to extract minerals from the ocean bottom that would be used in batteries for electric vehicles but advocates warn that in addition to its effect on the deep seabed ecosystem, mining could have the counterproductive effect of increasing global warming by releasing carbon stored in deep sea sediments.
Once thought too expensive and too difficult, commercial scale mining of the deep sea is poised to become a reality as early as 2019. But scientists warn reaching rare minerals on and under the sea floor could cause irreversible damage to an environment that is still poorly understood.
Researchers have discovered previously unknown species of sea life on the deep seabed floor, prompting concerns about how they will be impacted by the rush to mine the seabed for cobalt, manganese and other elements for use in technologies such as smartphones and electric cars.
Our growing demand for resources has prompted companies to turn to mining in the depths of the oceans. With help from robots, a team of German scientists is racing to map the potential environmental damage.
Kato says that he doesn't know whether the resource is commercially viable. "I'm a geoscientist, not an economist," he notes.
But Gareth Hatch, an industry analyst and founder of the Technology Metals Research consultancy in Carpentersville, Illinois, is sceptical. "People talk about mining on the asteroids or the Moon. This isn't that hard, but it's similar," says Hatch. Current on-land mines, and sites picked out for future mines, have rare-earth concentrations of about 3–10%, he points out. The much lower concentrations at the Chinese clay mine mentioned by Kato and his colleagues are only economically viable because the material is much easier to access than it would be in hard rock. That's not true for mud located below 4 or 5 kilometres of water, which would require expensive ship time and equipment to pull up. "There are better options," he says.
Craig Smith, an oceanographer at the University of Hawaii at Manoa, notes that companies are exploring the idea of mining manganese nodules from the sea floor to exploit their commercially-valuable contents, including copper and nickel as well as rare earths. Commercial mining of nodules is "probably a decade away", says Smith. Ocean mud could prove another possible source of the increasingly valuable elements.
Offshore oil and natural gas exploration along the extended continental shelf – an area beyond the 200-nautical-mile EEZ – is expected to increase U.S. reserves over the next decade. However, the United States cannot secure internationally recognized sovereign rights to those resources unless it ratifies LOSC. While the United States enjoys national jurisdiction over living and non-living resources above and below the seabed out to 200 nautical miles, claims to resources beyond the EEZ must be formally made to the U.N. Commission on the Limits of the Continental Shelf, the international body established by LOSC for parties to adjudicate claims to the extended continental shelf. Without the United States ratifying LOSC, U.S. companies operating beyond the EEZ would be considered on the high seas and beyond the formal legal protection of the United States. As a result, offshore drilling companies have increasingly expressed their concern about the lack of legal protections afforded to U.S. companies and have indicated a reluctance to assume significant risk in operating in areas beyond U.S. jurisdiction. In short, U.S. failure to ratify LOSC could have a chilling effect on commercial resource exploration and exploitation on the extended continental shelf.
[MYTH]: The problems identified by President Reagan in 1983 were not remedied by the 1994 Agreement relating to deep seabed mining.24 Not true—in fact, each objection has been addressed. Among other things, the 1994 Agreement:
Provides for access by American industry to deep seabed minerals on the basis of nondiscriminatory and reasonable terms and conditions.25
Overhauls the decision-making rules to accord the United States critical influence, including veto power over the most important future decisions that would affect U.S. interests and, in other cases, requires two-thirds majorities that will enable the United States to protect its interests by putting together small blocking minorities.26
Restructures the regime to comport with free market principles, including the elimination of the earlier mandatory technology transfer provisions and all production controls.27
Moreover, to mine deep seabed minerals requires security of tenure for the billion dollar plus costs of such an operation. Our industry has emphatically reminded us that they cannot mine under a fishing approach in which mining is a free-for-all concept, as the critics seem to suggest. Rather, they must have both the exclusive rights to mine sites and international recognition of titles to the minerals recovered. These requirements led to the formation of a limited international agency to provide security of tenure and title for mineral resources of the seabed beyond national jurisdiction, which was otherwise owned by no one. The ISA was a necessary specialized agency of strictly limited jurisdiction to deal with security of tenure and stable property rights so that investors can amortize their debt. Quite contrary to the recent testimony of one critic before the Senate Committee on Environment and Public Works, the ISA would not have "the exclusive right to regulate what is done, by whom, when and under what circumstances in subsurface international waters and on the sea-floor." (12) Rather, the ISA is a small, narrowly mandated international agency that has emphatically no ability to control the water column and only functional authority over the mining of the minerals of the deep seabed beyond national jurisdiction. Again, this is a necessary requirement for seabed mining, an area beyond which any nation has sovereignty, to provide security of tenure to mine sites, without which mining will not occur. By not adhering to the treaty, the United States will simply lose its deep seabed mine sites--the best in the world--and our seabed mining industry will be permanently deep-sixed.
The U.S. legal position set forth in 1983 on deep seabed mining remains the same today. According to the Restatement of the Law, Third, of the Foreign Relations Law of the United States, the United States may engage in deep seabed mining activities even if it does not accede to UNCLOS, provided that such activities are conducted without claiming sovereignty over any part of the deep seabed and as long as the mining activities are conducted with due regard to the rights of other nations to engage in mining. As related by the Restatement, “like the fish of the high seas the minerals of the deep sea-bed are open to anyone to take.”
The U.S. position is also reflected in the Deep Seabed Hard Mineral Resources Act of 1980, which Congress enacted two years before the adoption of UNCLOS to provide a framework for U.S. corporations to conduct deep seabed mining until such time as the United States joins an acceptable convention on the law of the sea. The DSHMRA states the U.S. position on the legality of deep seabed mining as follows:
[I]t is the legal opinion of the United States that exploration for and commercial recovery of hard mineral resources of the deep seabed are freedoms of the high seas subject to a duty of reasonable regard to the interests of other states in their exercise of those and other freedoms recognized by general principles of international law.
In sum, the long-held position of the United States, both domestically and internationally, is that U.S. citizens and corporations have the right to explore and exploit the deep seabed regardless of whether or not the United States is a party to UNCLOS.
MYTH: The problems identified by President Reagan in 1983 were not remedied by the 1994 Agreement relating to deep seabed mining. Each objection has been addressed. Among other things, the 1994 Agreement:
provides for access by U.S. industry to deep seabed minerals on the basis
of non-discriminatory and reasonable terms and conditions;
overhauls the decision-making rules to accord the United States critical influence, including veto power over the most important future decisions that would affect U.S. interests and, in other cases, requires supermajorities that will enable us to protect our interests by putting together small blocking minorities;
restructures the regime to comport with free-market principles, including the elimination of the earlier mandatory technology transfer provisions and all production controls.
Lockheed Martin, the only U.S. company with active claims to deep seabed sites under a U.S. law predating the Law of the Sea Convention, recently wrote to this Committee urging the Senate to approve the Convention. Lockheed has invested hundreds of millions of dollars on research and development related to deep seabed mining over the past 40 years. The company’s letter made clear that the multibillion dollar investments now required to launch an ocean-based resource development business will only occur if it can obtain the security of tenure and clear legal rights offered under the Convention. With Lockheed and potentially other U.S. companies poised to expand their operations and create new jobs, Senate accession to this treaty would allow investor dollars to stay here.
Equally important to U.S. companies contemplating deep seabed mining activities is U.S. leadership in the ISA. The next several years will be formative for the nascent deep seabed mining industry. As I mentioned earlier, the Convention’s deep seabed mining regime was overhauled in 1994, resulting in a system that is uniquely favorable to American interests. Those reforms included a permanent U.S. seat on the Council of the ISA. But the U.S. has not assumed that seat, and cannot guide the development of new rules pertinent to deep seabed mining activities while outside the Convention.
Now what was at stake for the United States in this? At stake was access to these mineral resources, these huge mine sites that are equivalent to the largest in the world today. The aggregate value of the minerals in the mine sites we are going to lose if we do not move forward on this treaty, may be—hold on to your hats—one trillion dollars.19 Now just to put that into perspective, the total cost so far of the Iraq War is debated as being somewhere between a quarter of a trillion and three-quarters of a trillion dollars.20 This large amount, a trillion dollars may be at stake in access to critical minerals for the United States of America in going forward with this treaty.
U.S. companies may operate through foreign subsidiaries. If a U.S. company insists on engaging in mining only under the convention’s auspices despite the inequities associated with the UNCLOS regime, it may do so. Specifically, if the United States continues to remain a non-member of UNCLOS, a U.S. seabed mining company may incorporate a subsidiary entity in a country that is party to the convention. In this manner, the U.S. entity’s subsidiary may apply for an exploration contract under the sponsorship of the foreign country and engage in seabed mining through the convention’s regime.
The practice of U.S. companies partnering with foreign entities in seabed mining ventures has precedent. As previously noted, all four U.S. private-sector mining consortia originally included foreign partners or ownership interests: KCON had Canadian, Japanese, and british interests; OmA had belgian and Italian interests; OmI had Canadian, Japanese, and German interests; and OmCO had Dutch interests.90
In sum, the United States has agreements with almost every nation that the Authority has licensed to explore the CCZ (belgium, China, France, Germany, Japan, russia, and the United Kingdom), all of which remain in force and effect at the present day.29 Those nations have made a commitment to the United States that they will not interfere with or infringe on the claims by the United States or its companies in the CCZ. None of the nations has denounced or withdrawn from the agreements or has otherwise indicated that it does not respect its international commitments to recognize U.S. claims in the CCZ.
Among the nations that have sponsored claimants in the CCZ, only four—Nauru, Kiribati, South Korea, and Tonga—are not party to a seabed agreement with the United States. The U.S. should remedy this by nego- tiating memoranda of understanding with those nations along the same lines as the 1991 agreements with China and the Soviet Union. Although the claims of Nauru, Kiribati, South Korea, and Tonga do not overlap the areas currently claimed by the United States, the agreements would establish a bilateral commitment from each of those nations not to infringe on U.S. claims in the CCZ and to cooperate in the event of a dispute.
The development of deep seabed claims is incredibly expensive. Companies in the U.S. are reluctant to invest heavily in deep seabed mining because of the risk that their activities would not withstand a legal challenge since the U.S. is not a party to the Convention. Conversely, foreign companies, because their governments have joined the Convention, have access to the international bodies that grant the legal claims to operate in the deep seabed area. The U.S. cannot represent the interests of its companies in those bodies.
Deep seabed mining could have serious impacts on the ocean environment and the future livelihoods and well being of coastal communities. An international, multi-sector approach to management and protection, similar to that under development by the International Seabed Authority under UNCLOS, is needed, if we are to ensure the health and sustainable use of our oceans.
If the U.S. does not ratify UNCLOS, it risks losing the remaining three possible seabed mining sites, with billions in the strategic minerals manganese, copper, cobalt and nickel at stake. A single seabed mining operation would spur the economy with total capital purchases of close to one and a half billion dollars and would stimulate robust job creation.
The technology for deep-sea mining is already widely available, consisting of mining support platform or vessel; a launch and recovery system; a crawler with a mining head, centrifugal pump and vertical transport system; and electrical, control, instrumentation and visualization systems. Companies such as Lockheed Martin, Soil Machine Dynamics, IHC Mining and Bauer or Nautilus Minerals are developing vehicles for deep-sea mining, pledging they are in the position to readily develop techniques to operate down to 5,000 metre depth.
U.S. companies increasingly seek to engage in seabed mining for minerals such as rare earth elements and cobalt that are critical to the broad U.S. economy and used in producing defense assets. The deep seabed contains two potential sources for rare earth elements: polymetallic nodules which typically contain manganese, nickel, copper, cobalt and rare earth minerals; and sea-floor hydrothermal vents which pump out rare-earth elements dissolved in their hot fluids.
According to U.S. foreign relations law, the United States may engage in deep seabed mining activities even if it does not accede to UNCLOS, provided that such activities are conducted without claiming sovereignty over any part of the deep seabed and as long as the mining activities are conducted with due regard to the rights of other nations to engage in mining.This position is also reflected in the Deep Seabed Hard Mineral Resources Act of 1980.