Seabed Activities in Domestic Jurisdictions: Why Coastal States should pay attention to the work of the International Seabed Authority9 May 2024

Introduction

As outlined in our previous Deep Seabed Mining Insights, the International Seabed Authority (the “Authority” or ISA) has a comprehensive mandate for regulating activities in the “seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” (i.e., the “Area”). In undertaking that mandate, the Authority is obliged to ensure the effective protection of the environment from the potential harmful effects of seabed activities and to prevent, reduce and control pollution. At the same time, States are free to regulate and develop domestic seabed activities in the parts of the ocean that are subject to their jurisdiction. And, indeed, a number of States have approved or are considering a variety of projects on the seabed within their jurisdiction.

Whilst domestically regulated seabed activities are not subject to the ISA’s regulatory authority, the rules it is preparing will have direct legal implications for how States regulate such activities. This article explains how UNCLOS requires States to meet or exceed the standards being set by the ISA in relation to pollution control and considers what this might mean for the regulation of seabed activities by States.

The rights and duties of Coastal States in regard to waters outside of the Area

Under Article 153(2) of UNCLOS, the ISA is responsible for organising, carrying out and controlling “[a]ctivities in the Area”. The ISA has no jurisdiction or authority over seabed activities taking place outside of the Area. The Mining Code, in particular, applies only to activities in the Area and has no direct application in waters that are subject to national jurisdictions. Instead, such waters and activities that take place there are governed by the relevant domestic legal regimes.

That said, when designing and implementing regulation of seabed activities, Coastal States are subject to a range of rights and duties spelled out in UNCLOS. From an environmental protection standpoint, there are two key obligations relevant to domestic regulatory frameworks for seabed activities adopted by Coastal States:

• under UNCLOS Articles 192 and 194(1), all States, including Coastal States, have an obligation to protect and preserve the marine environment, to take all measures consistent with UNCLOS that “are necessary to prevent, reduce and control pollution of the marine environment…using…the best practicable means at their disposal and in accordance with their capabilities” and to “endeavour to harmonize their policies” to ensure such pollution control is secured; and
• more specifically, under Article 208 of UNCLOS, Coastal States are required to adopt laws and regulations to “prevent, reduce and control pollution of the marine environment arising from or in connection with” seabed activities and from “artificial islands, installations and structures” subject to the Coastal State’s national jurisdiction. Importantly, these laws and regulations must be “no less effective” than “international rules, standards and recommended practices and procedures”.

Coastal States therefore have obligations under international law to prevent, reduce and control pollution of the marine environment and their compliance with this obligation is to be measured against internationally applicable comparators.

What types of activities does Article 208 cover?

Article 208’s scope is broad – it is not limited to particular types of seabed activities nor defined to exclude certain industries. Article 208 also applies in relation to pollution arising from “artificial islands, installations and structures” that are within a State’s jurisdiction. Given this breadth, the scope of activities likely covered by Article 208 includes:

• exploring for mineral resources, oil and gas deposits and other similar resources on the seabed;
• drilling for, collecting and otherwise exploiting seabed resources;
• dredging of the seabed;
• bottom trawling for ground fish and other seabed species; and
• constructing structures and installations on the seabed (such as oil platforms and offshore wind turbines).

Furthermore, Coastal State pollution controls must encompass pollution “arising from or in connection with” such seabed activities. This extends the responsibility to control pollution to all parts of the activities, not just pollution that comes directly from the activity itself.

What does “pollution of the marine environment” mean?

The phrase “pollution of the marine environment” is defined at Article 1(1)(4) of UNCLOS as:

the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities[.]

Article 1(1)(4) tracks a traditional understanding of “pollution”, which focusses on activities that introduce new or foreign materials or substances into a given environment, causing harmful effects to the environment’s living resources, quality, amenities, or usability.

Under Article 208, Coastal States’ pollution control responsibilities are not identical to those of the ISA in the Area, which must ensure “effective protection for the marine environment” from harmful effects, per Article 145. The latter provision is broader and likely imposes additional responsibilities upon the Authority as compared to the obligations Article 208 imposes on Coastal States. Noting that all States also have a general obligation to “protect and preserve the marine environment” under Article 192 of UNCLOS.

That said, there is likely significant overlap between these obligations. Many of the potentially harmful effects covered by Article 145 can arise from the introduction of new substances to the marine environment. Harmful effects may also arise from potential disturbances or relocations of material within the environment or from one part of the environment to another. If these types of disturbances can be characterised as “introducing” materials or substances into the marine environment, they are arguably also covered by UNCLOS’s definition of pollution and therefore must be controlled by Coastal States in accordance with Article 208. In the same way, Article 208’s reference to “energy” is open-ended and could be read expansively to widen the scope of relevant harmful impacts upon the environment. Such an expansive reading may find greater acceptance today, as modern international environmental law jurisprudence on pollution develops and grows.