Due diligence beyond planetary boundaries

By Oliver Hill

On August 2nd, 2017 humanity again reached the point where our consumption for the year exceeded the Earth’s capacity to regenerate resources. In my short time on Earth this date has moved further along from its first measurement of December 19th in 1987. That humanity has almost halved the time in which we consume all the resources the earth can provide in my lifetime is a frightening idea. Perhaps this is one of the reasons why my fellow researchers and I work so hard to understand human-nature reactions, and work to develop better pathways to a sustainable future. However, as we work others search for new resources to exploit to feed the unending growth of developed nations. This growth all too often comes at cost of pushing significant environmental damage onto developing nations, which rarely have the necessary administrative and policy mechanisms in place to protect their resources and people.

One of the newest offers of potential development in this space is the prospect of seabed mineral resources. The exclusive economic zones (EEZ) of Pacific Island nations are far reaching and contain large amounts of mineral resources that hold the potential for rapid economic development. These resources located on the deep seabed are the result of fissures in the earth’s surface venting high temperature fluid laden with sulphide minerals. Over time these vented fluids settle to the ocean floor and form massive sulphide deposits rich in Copper, Silver, Gold, and traces of other Rare Earth Elements (REE) used in the manufacture of modern goods. It is proposed that mining these resources presents an attractive alternative to land based mining due to its lower environmental impact, potentially higher grade, and lack of socio-cultural impact. The problem with this proposal is that mining the seafloor is an incredibly new and untested technology that is yet again being tested in the fields of developing countries limited in their capability to respond.

Figure 1: Greenpeace International potential effects of deep sea mining

A potential step in beginning to examine this issue is through application of international treaties ratified by parties involved in the exploration and development of seabed mining. Recent coursework provided the opportunity to examine this issue further by analysing the United Nations Convention on the Law of the Sea (UNCLOS) and how the treaties interpretation of ‘due diligence standards’ affects state obligations under the convention. The consequent article examined the legal basis of the ‘due diligence’ standard in the law of the sea, and its effect upon international decisions regarding activities governed within states EEZ and the high seas. Through examination of case law, advisory opinions, and a case study it was found that states are required to discharge certain obligations under UNCLOS by implementing administrative and policy measures that require ‘best environmental practice’. This effectively requires states which are signatory to UNCLOS to implement necessary and appropriate measures prior to commencing the exploitation of resources on the seabed and places the highest possible obligation upon all states. Not fulfilling these obligations would place a state in breach of its requirements under UNCLOS and face potential legal action through the Seabed Disputes Chamber.

Unfortunately, there is little clarification within UNCLOS or relevant case law as to what ‘best environmental practices’ may involve and what standards of monitoring are required. In the case study of Papua New Guinea (PNG), it was found with great concern that the government is yet to publicly release legislation for the governance of seabed mining. This already places PNG in a dubious position in relation to its seabed mining activities, as it is obliged under UNCLOS to implement practices no less effective than other international regulations. The case study was taken further through application of the Tongan Seabed Minerals Act 2014 to the upcoming PNG development, where it was found that states may still be found in breach of their obligations under UNCLOS even if they implement necessary and appropriate measures. It was found that if the state sponsoring development of the seabed floor implements legislative measures but does not have the financial or technical ability to monitor and enforce legislation it is not fulfilling its obligations of ‘due diligence’. The article concluded that without the International Tribunal for the Law of the Sea (ITLOS) engaging with scientific and technical experts to establish minimum standards of acceptable practice, activities in the high sea will continue to operate under a shroud of uncertainty as to whom is liable for environmental costs and damages (read more here).

Although humanity seems to always find new ways to exceed its limits of resource consumption and growth, there is still time to protect the valuable resources we have left and the environment they depend on. As much as we need to concentrate on the priceless environmental resources we have on land and fight for their conservation, it is easy to forget about the expansive resource that exists below the ocean’s surface. There is so much we don’t know about deep sea ecosystems and unless we begin to take steps to a greater understanding of its limits we risk doing more damage than it can sustain. As we exceed our planetary boundaries yet again it’s therefore appropriate that we as students, developers, and researchers collectively look beyond what’s on the surface and start embedding stronger requirements for the protection of our oceans into our legislation and our lives.

 

Source: Banner image from here