LCIL Friday Lecture: 'Current challenges regarding deep sea mining and protection of ocean life beyond national boundaries' - Kristina M Gjerde, Senior High Seas Advisor, IUCN

Lecture summary: The legal regime for deep seabed mining in the international seabed Area is a rare example of the international community joining forces to regulate a potential new industry in the interests of humankind as a whole. As set forth under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the international seabed Area and its mineral resources are the “common heritage of mankind”, on whose behalf the International Seabed Authority (ISA), an autonomous organization established under UNCLOS, is to act. The mandate comes with concomitant obligations for the equitable sharing of financial and other economic benefits and adoption of the necessary measures to ensure the effective protection of the marine environment from the harmful effects of deep-sea mining.

Despite this historic legal framework based on visions of equity, common interest, environmental health and prosperity for all, tensions are rising. In late June 2021, the Government of the Republic of Nauru called for the ISA to accelerate its work on regulations for exploitation of deep seabed minerals so that NORI, its sponsored entity, could submit an application for authorization to mine as soon as 2023. Just prior to that, hundreds of marine scientists and policy experts issued a Call for a Pause to Deep-Sea Mining, expressing concern that deep-sea mining could result “in the loss of biodiversity and ecosystem functioning that would be irreversible on multi-generational timescales.” In September 2021, members of the International Union for Conservation of Nature (IUCN) adopted a resolution calling upon IUCN Member States to support and implement a moratorium on deep seabed mining until specific conditions have been satisfied, including improved scientific understanding, independent review, application of precaution and institutional reforms (IUCN, 2021 WCC Motion 069).

Despite recognizing the need for rigorous and binding environmental safeguards, the Secretary General of the ISA has described the rising calls for a moratorium on deep seabed mining in the Area as “anti-science, anti-knowledge, anti-development and anti-international law.” All this is happening at the same time the United Nations is developing a new agreement under UNCLOS for the conservation and sustainable use of marine biodiversity beyond national boundaries, and the UN Ocean Envoy, Peter Thomson has called on the global community to recognize the importance of ensuring “synergy between the forthcoming global conferences addressing climate change, biodiversity loss and the well-being of the ocean.” (Open letter by Peter Thomson, UN Special Envoy for the Ocean, to Patricia Espinosa, Executive Secretary of the UNFCCC). The Open Letter further stresses that “the days are gone when any one of these existential challenges can be meaningfully negotiated without bringing the other two to the table.”

This presentation will explore these issues in light of the legal regime established under UNCLOS and its 1994 Implementation Agreement, modern environmental norms, procedural principles and current scientific understanding about deep sea ecosystems and the potential impacts of deep seabed mining. It will further describe prior examples of internationally declared “moratoria” or conditional pauses on specific activities. Finally, it will explore some pathways ahead for addressing the potential contradictions between deep sea mining and protection of marine biodiversity beyond national boundaries.

(With many thanks to Pradeep Singh, LLM, Researcher, University of Bremen, who co-authored and assisted with this presentation)

Kristina M. Gjerde, J.D., is Senior High Seas Advisor to the International Union for Conservation of Nature (IUCN)’s Global Marine and Polar Programme. Kristina received her Juris Doctor from New York University School of Law with a focus on comparative and international law, and practiced admiralty law for several years in a New York City law firm. For the past 30+ years, Kristina has focused on the nexus of law, science, and policy relevant to sustaining marine biodiversity. Kristina has co-founded four science-policy partnerships: the Global Ocean Biodiversity Initiative, The Sargasso Sea Project, the High Seas Alliance and the Deep Ocean Stewardship Initiative (DOSI). In addition to advancing a new UN treaty for marine life beyond boundaries, she has authored or co-authored more than 150 publications. Kristina is an Honorary Fellow of the University of Edinburgh School of Geosciences, an adjunct professor at the Middlebury Institute of International Studies at Monterey, California, and lives in Cambridge, Massachusetts.