By: Maral Asik
I. Introduction
Earth’s resources are rapidly depleting, and as a result humans are forced to look in increasingly remote places to access the resources necessary to maintain current consumption levels. As countries use more of their resources, they begin to look into the gold-mine of untapped resources located in international territory. When environmental damage occurs within a country, the intragovernmental judicial process typically decides what the consequences are. It is less certain, however, who holds states and corporations responsible for environmental harms caused in international territory, meaning the trans-boundary waters where no country has jurisdiction. This question is crucial for understanding the controversial issue of mining polymetallic nodules: a precious resource found primarily in international waters. While the benefits of deep-sea mining are promising, miners must be very careful not to inadvertently cause more harm. The ocean absorbs 25% of all the carbon dioxide emitted into the atmosphere ; therefore, the international community must have robust systems in place to protect 1 the delicate system that has so far buffered humanity from the worst consequences of climate change. The two institutions that could theoretically adjudicate these cases are The International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ). The ITLOS was created by the UN Convention on the Law of the Sea (UNCLOS) in 1994 as a means for the international community to adjudicate maritime cases. On the other hand, the ICJ is one of the 1 https://climatekids.nasa.gov/ocean/ 19 six principal organs of the UN and was established in 1945 by the Charter of the United Nations. Although the two courts are similar, they are different in important ways when it comes to jurisdiction and legitimacy. For the reasons listed below, the The International Tribunal for the Law of the Sea should be responsible for all cases regarding polymetallic nodule mining in international waters rather than the International Court of Justice.
II. Scientific Background
Polymetallic nodules, also called manganese nodules, are rock concretions on the seafloor of the ocean made of concentric layers of precious metals around a core. Four of the 2 metals contained in the nodules— cobalt, nickel, copper, and manganese— are essential for the creation of batteries, which can be used for the production of clean energy and electric vehicles.3 Three nodule fields have been identified by explorers for having the largest economic potential; these fields are located in the center of the north central Pacific Ocean, the Peru Basin in the south-east Pacific Ocean and the center of the north Indian Ocean. The largest of these three 4 areas is in the north central Pacific Ocean and is known as the Clarion-Clipperton Zone (CCZ).5 Notably, the CCZ lies outside of any one country’s Exclusive Economic Zone, or EEZ, which is the zone in which coastal nations have jurisdiction over natural resources.6 The Metals Company, a corporation that has already acquired numerous exploration contracts, advertises that “using nodules to create electric vehicle batteries will generate at least 75% less CO2 than ores from land-based mines.” Not all scientists, however, are convinced that 7 mining the nodules will have a positive effect on reducing the effects of climate change. The two proposed methods of mining right now are mechanical and hydraulic uptake mechanisms. Both 8 of these methods have the potential to do significant harm to ocean ecosystems. Research indicates that deep-sea ecosystems will be affected by organism death as a result of sediment compaction, sedimentation and burial of biota, and habitat loss. Seafloor mining will also 9 generate sediment plumes and noise at the seabed and in water column that may have extensive ecological effects in deep midwaters, which represent more than 90% of the biosphere, contain fish biomass 100 times greater than the global annual fish catch, connect shallow and deep-sea ecosystems, and play key roles in carbon export, nutrient regeneration, and provisioning of harvestable fish stocks.10
III. Legal Infrastructure
The uncertainty surrounding the environmental impact of deep-sea mining increases the importance of having a robust legal infrastructure to settle maritime disputes. Section 4, subsection A of UNCLOS establishes the International Seabed Authority (ISA), which is responsible for organizing and controlling activities in international waters, particularly with a view to administering the resources in international waters. Under Part XI, Section 3, Article 11 153 of Section 3 of UNCLOS, exploration and exploitation of seabed minerals in international 11 waters may only be carried out under a contract with the ISA. Contracts may be issued to both 12 public and private mining enterprises, provided they are sponsored by a country that is a part of UNCLOS and meet certain financial and technological standards. Exploration contracts allow 13 countries or companies to conduct research in designated areas, and exploitation contracts allow countries to remove resources from designated areas. Currently, the ISA has issued 31 exploration contracts for deep sea mining, and has yet to issue any exploitation contracts. The 14 United Nations currently has two bodies that adjudicate international maritime disputes. The International Court of Justice (ICJ) was created first in 1946. Since its inception, it has 15 reviewed 150 contentious cases, of which 28 concerned matters governed by the law of the sea.16 The second body, established much later, is the International Tribunal for the Law of the Sea (ITLOS). The ITLOS was established in 1994 by the mandate of the United Nations Charter on the Law of the Sea (UNCLOS). To date, the ITLOS has resolved 27 contentious cases and has 17 delivered 2 advisory decisions.18 167 countries and the European Union have signed on as parties to UNCLOS and thus are legally bound to ITLOS decisions. Notably, the United States, Israel, Turkey, and 19 Venezuela have not signed on as parties to UNCLOS. On the other hand, all 193 UN members are parties to the ICJ. The key difference between the two bodies is that the ICJ only has 21 jurisdiction over inter-State cases, while the ITLOS can have jurisdiction over cases brought by or against international organizations. Currently, contentious cases are split between the two 22 judiciary bodies, with most inter-State cases going to the ICJ, and all cases involving international actors going to the ITLOS. However, because exploitation contracts have yet to be issued, there is no precedence for deciding which court would oversee questions of polymetallic nodule mining.
IV. Which Court Should Oversee Cases?
In order to reach a conclusion about whether the ICJ or the ITLOS ought to oversee deep-sea mining cases, the outcomes of using each court must be considered. The benefits to assigning deep-sea mining cases to the ICJ are that more countries are party to the ICJ, and therefore any decision administered by them would hold more weight. The ICJ is a more respected and renowned court, and therefore it may also signal to the international community the gravity of the matter of environmental harm to the ocean. One drawback to using the ICJ would be that cases involving international actors are not within its jurisdiction. Due to the high economic value of polymetallic nodules, it is very likely that international enterprises will soon be given exploitation contracts, and the ICJ would not be able to adjudicate such cases. Another drawback is that the ICJ may have less specific knowledge of marine disputes. One benefit to giving the ITLOS sole jurisdiction over deep-sea mining cases is that they are allowed to adjudicate cases with international actors. Another benefit is that they have far more specific 23 knowledge on maritime cases since all of the judges seated on the Court are chosen for their expertise on maritime issues. The big drawback to the ITLOS is that there are far fewer countries party to the agreement, so their jurisdiction is less broad and their decision may be viewed as less legitimate. The third option is to continue the status quo and split cases between the two bodies. Within the status quo, the ICJ and the ITLOS typically split up cases by type. For example, the ICJ tends to adjudicate EEZ border disputes, while the ITLOS adjudicates arrested ship disputes. While this does currently work, the same may not be true of splitting up polymetallic nodule mining cases. Since the cases would all be about the same subject, it makes sense to consolidate the cases in one court. The chosen court would have more expertise and legitimacy, as well as the ability to establish clear precedence.
V. Conclusion
A solution stands out among the three options presented. The ITLOS should adjudicate deep-sea mining cases to access specific maritime knowledge and have jurisdiction over international actors. The lack of countries party to ITLOS decisions, however, presents a real problem for the legitimacy of the Court. It is easy to imagine a situation in which a country not within ITLOS jurisdiction obtains an exploitation contract, causes significant environmental damage, and cannot be held liable by the international community. The solution that UNCLOS sets out is that countries not party to the convention, and therefore are not a part of the ISA, cannot be issued exploration or exploitation contracts. It is possible that the promise of financial gains from exploiting these precious resources will be enough to draw more countries to sign on 24 to UNCLOS once exploitation contracts begin to be issued. However, some experts have concerns that this may not be the case. Because it is very difficult to patrol international waters at all times, some fear the “out of sight, out of mind” mentality will allow countries and corporations to mine without contracts or repercussions. Others fear that countries will ignore international court decisions altogether, as China did in the 2016 South China Sea ICJ decision.23 Regardless of these externalities, however, it is clear that making the International Tribunal for the Law of the Sea the primary adjudicator for deep-sea mining cases rather than the International Court of Justice will provide more clarity to this fraught environmental issue.