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Image left: These dee-sea deposits might not look much at face value but they are the cause for a current rat-race to exploit the precious metals they contain and which are needed within electric car batteries.
Image right: screenshot of the online proceedings from the high-profile UN meeting (IGC4) held earlier this week as part of ongoing BBNJ Conference negotiations

Prof. Alan Deidun, resident academic within the Oceanography Malta Research Group of the Department of Geosciences (Faculty of Science) and Malta’s Ocean Governance Ambassador, was recently invited by the Ministry for Foreign and European Affairs (MFEA) to represent Malta, in lieu of Minister Evarist Bartolo, at the high-profile IGC4 meeting held at the UN Headquarters in New York earlier this week.

The same meeting, part of the fourth round of negotiations (the BBNJ Conference) which kicked off back in 2018, is set to discuss the future of 40% of planet Earth, which represents that part of the ocean which does not fall under any national jurisdiction and where human activities are largely unregulated. This part of the Ocean is referred to as the ABNJ – Area Beyond National Jurisdiction – known informally as the High Seas (water column) and ‘The Area’ (the seabed), extending beyond all national maritime designations and jurisdictions, including Exclusive Economic Zones (EEZs).

The meeting in question was co-chaired by France (currently holding the EU’s rotating Presidency) and the US and was attended by Ministers and diplomats from over 20 other countries, including Italy, Canada, Australia, New Zealand, Spain, Portugal, Romania, Morocco, Greece, Norway, the UK, Barbados and Singapore. 

The sheer extent of the High Seas is overwhelming, having been estimated at a whopping 271.7 million square kilometres, which equates to the combined surface area of Russia and the US ten times over. It is inconceivable that, 40 years since the ratification of the UNCLOS (United Nations Convention on the Law of the Sea, which basically established the baseline framework for managing the Ocean’s ‘Commons’), the living and non-living resources within such a vast swathe of the planet are still not managed through a rigorous rule-book.

The provisions laid down in UNCLOS forty years ago in fact do not safeguard the integrity of biodiversity enclosed within the ABNJ (dubbed the ‘BBNJ’), nor do they regulate effectively human activities being conducted in such backwaters. Through a UN resolution approved on Christmas eve, 2017, the BBNJ Conference process was launched, with three Intergovernmental Conferences (IGCs) being held over the 2018-2019 period. COVID stalled the process and, after a three-year hiatus, IGC4 is being held over 7 to 14 March 2022 period.

Understandably, no one felt the need to stipulate water-tight measures about these issues for the High Seas forty years ago, at a time when the exploitation of seabed resources lying hundreds and thousands of meters below the waves and hundreds of kilometres from dry land was deemed unachievable. So much so that the biodiversity (deep-sea species, many of which still await discovery and which have never been subjected to any form of human disturbance) within ‘The Area’ fall within the ‘Common Heritage of Mankind’ provisions of the UNCLOS and are not safeguarded. 

But the technological state-of-the-art has definitely caught up…so much so that seabed mining is now looming on the horizon ever so inexorably. The pressure is piling on the International Seabed Authority (ISA), based in Jamaica, to approve the rule-book (e.g. Environmental Impact Assessment protocols to follow) sanctioning the exploitation of the seabed, as countries seek to capitalise on the resources locked away within their seabed. Nauru, for instance, triggered, on the 29th June 2021, the ‘nuclear option’, as it is informally known within ocean governance circles, by invoking the two-year rule. In essence, this means that the ISA has two years to finalise the seabed mining rule-book, which has been in the offing since 2011, or else exploitation can proceed by applying the rule-book in hand at the time, despite not being finalised. 

And the irony of it all is that this rat-race to tap into the unlocked potential of the seabed located within the High Seas is being fuelled by the surge in interest in electric cars. In fact, the demand for the rare and precious metals, pivotal for the manufacture of electric car batteries, can only be met through the mining of the polymetallic nodules concentrated within some parts of the global ocean seabed.

The full text of the statement delivered virtually by Prof. Deidun at the meeting in caption is hereby reproduced:

Malta fully agrees with UN Special Envoy for the Ocean Peter Thomson that 2022 might be the year where we finally clinch an effective BBNJ agreement, given that this year marks the 40th anniversary since the signing of the UNCLOS and the 55th anniversary since Arvid Pardo’s landmark UNGA speech which set in motion the process leading to the drafting of the UNCLOS.

 

Malta fully believes that each of the pillars underpinning the current BBNJ inter-governmental conference (EIAs, ABMTs, MGRs, as well as capacity-building and technology transfer) must be implemented together for effectiveness and efficiency of the agreement. For instance, agreement on provisions related to MGRs and ABMTs can only go so far if a rigorous EIA framework for seabed mining in ABNJs is not agreed upon at the same time. All four pillars are crucial to create a dedicated, effective, predictable, and future-proof legally binding agreement for the conservation and sustainable use of marine biological diversity in ABNJ under UNCLOS.

 

The sustainable use of marine biological resources is of vital importance to Malta. This is especially true in the face of the high degree of uncertainty surrounding the potential environmental impacts of seabed mining on contiguous areas through, for example, the generation and long-distance advection of particulate plumes and the relative lack of real-time monitoring and mitigation measures operators should adopt in such plume-generation circumstances. Malta stresses the need for the precautionary principle to prevail in such high uncertainty circumstances and for the Parties to agree to finance impartial, conclusive science on the potential environmental impacts of seabed mining pursuant to concluding the ISA’s method statements and protocols. The attainment of the latter milestone by the ISA is especially crucial at this stage given the looming prospect of seabed mining following the triggering of the two-year rule. 

 

Malta believes that we need to apply all relevant concepts and principles of international environmental law in ABNJ: the principle of cooperation; the precautionary principle which I previously mentioned; the ecosystem approach; the polluter pays principle; and the use of best available science. All to ensure that States Parties will work and cooperate towards the full implementation of this agreement. Lastly, but definitely not least, the UN could avail itself of in-house scientific expertise on such technical matters as harboured within the Regular Process’ Group of Experts currently working on the Third World Ocean Assessment.