The coastal states’ responsibility
Each country must play its partThe exploration and exploitation of certain marine minerals on the deep ocean floor are governed by detailed regulations adopted by the International Seabed Authority (ISA). They also cover aspects of environmental protection. The exploitation of marine minerals in the international seabed area in future will thus be regulated by a uniform set of rules that are applicable worldwide. However, no such regime exists for the coastal states’ exclusive economic zones (EEZs) and continental shelves. Although the United Nations Convention on the Law of the Sea (UNCLOS) obliges every state party to protect and preserve the marine environment, it is a matter for each individual state to adopt its own detailed legislation on the use of its exclusive economic zone (EEZ), on marine mining on the continental shelf, and on the protection of the marine environment. However, as the ongoing pollution of coastal waters and disasters such as the Deepwater Horizon oil rig explo-sion show, this does not guarantee that the marine en-vironment will indeed be protected. And yet states have a particular responsibility, because the coastal waters within the EEZs are the world’s most intensively utilized marine areas, providing food and income for very large numbers of people. Over time, the pressure on the EEZs has increased. At one time, the coastal waters mainly supplied fish. During the last century, the tourism industry expanded and later, industrial sites were established along the coasts and oil and gas drilling rigs were installed on the continental shelf. Effluents from factories and intensive farming are still polluting coas-tal areas, and over the next five years, marine mining is likely to have a considerable impact as well, particularly the extraction of massive sulphides, which are mainly found on the continental shelf.
- 4.7 > A boy plays in a carpet of algae at the seaside in Qingdao in China. Excessive use of fertilizers is one of the causes of algal blooms. Coastal waters are being polluted elsewhere as well, despite international marine protection agreements.
Marine mining – controlled by governmentsGiven the very important role played by the marine environment and the range of pollutants to which it is exposed, states should be treating the marine areas under their jurisdiction with particular care. Indeed, UNCLOS contains comprehensive provisions to that effect. However, they are framed in very general terms, and countries have considerable leeway to decide how to transpose these provisions into national law. In some cases, national legislation does not adequately protect the sea from overexploitation and pollution. What’s more, not every country safeguards compliance with environmental legislation or regularly monitors its industrial enterprises. Although relevant legislation is in place, environmental pollution and degradation still routinely occur in many countries. For experts, therefore, the worry is that some countries could well adopt a similarly lax approach to marine mining on their continental shelves. They could even attract potential investors by offering them the chance to carry out mining operations with no obligation to achieve stringent and costly compliance with environmental regulations, and without having to worry about checks or inspections.
- 4.8 > In July 2010, a waste tank at a copper mine in the coastal province of Fujian in China burst open, spilling toxic slurry into a river and killing 1900 tonnes of fish.
Toothless legislationA recent comparative analysis of the mining industry in the G20 states reveals the difficulties arising in the implementation of existing environmental legislation in some countries. The findings for the Latin American G20 countries Argentina, Brazil and Mexico are par-ticularly interesting. Although the study relates to on-shore mining, it identifies specific problems which are likely to affect marine mining in future as well. In all 3 countries, detailed regulations and standards for environmental protection are in place, but a number of central challenges stand in the way of robust compliance:
- Government agencies tasked with overseeing the mining industry are poorly equipped with personnel, and there is also a shortage of skilled labour in some cases, as well as problems accessing funding. As a result, very few site visits or inspections of mines take place. Instead, assessments are generally confined to desk reviews of applications and documentation.
- Government agencies tasked with overseeing the mining industry are too close, either spatially or administratively, to political decision-makers. In some cases, assessors’ offices are located in regional government buildings, enabling politicians to exert influence over their activities.
- Even if the regulatory agencies are able to work independently, concerns are often ignored. Critical findings are not taken seriously or are disregarded by decision-making bodies, such as mining authorities.
- There are very few quality standards or certification schemes for consultancies that prepare environmental impact assessments, making it very easy for industrial enterprises to commission biased reports that gloss over the negative impacts of mining.
Following a good example?Not everyone shares these concerns. In the view of some experts who specialize in the Law of the Sea, the ISA Regulations have established universally applicable standards of best practice for marine mining. Although these do not constitute binding regulations that must be incorporated into national legislation on deep-sea mining on the continental shelf, the ISA instruments serve, nonetheless, as a model to which coastal states must, at the very least, aspire. What’s more, if it trans-pires that a state is causing massive environmental damage on its continental shelf, it may face prosecution in an international court such as the International Tribunal for the Law of the Sea (ITLOS); for example, legal proceedings may be initiated by neighbouring countries whose waters have been polluted. Both cobalt-rich crusts and massive sulphides are mainly found on the continental shelves of island states that have no mining industry of their own. It is very likely that future mining operations here will be undertaken by international extraction industry companies on a contractual basis. It is not in these companies’ interests to destroy the marine environment on the state’s continental shelf, for if a company that causes such degradation were to apply for a licence to extract resources in the international seabed area in future, the ISA would be justified in refusing the application due to a lack of confidence in the company concerned – resulting in its loss of access to profitable seabed areas.
- 4.9 > A tanker’s useful life ends – and an oil disaster begins. In November 2002, the Prestige sank off the northwest coast of Spain, spilling around 60,000 tonnes of oil into the sea and polluting almost 3000 kilometres of French and Spanish coastline.
- A further relevant factor, in the view of some experts in the Law of the Sea, is that when selecting mining areas, mining multinationals will not necessarily give preference to unreliable states with lax legislation, for experience has shown that cooperation with these countries can be extremely problematical for the companies concerned. Negotiated contracts are not always complied with, and in politically unstable regions, there is also a risk of political upheavals, pos-sibly resulting in the cancellation of the contracts by the new governments and leaders and hence the loss of the company’s investment. A very much higher level of legal stability is afforded by marine mining in international waters (“the Area”), which is properly regulated under ISA licences, with reliable contract periods and firm agreements. >