Stephen Vasciannie | Trump and the deep seabed

On April 24 United States President Donald Trump issued an Executive Order on seabed mining which has major implications for the work of the International Seabed Authority, based in Kingston, Jamaica.

The authority as well as most states in the international community will be obliged to challenge the Executive Order because it threatens to drive the proverbial horse and carriage through the deep seabed regime in international law that has been more than 50 years in the making.

UNLEASHING AMERICA

Under the title, “Unleashing America’s Offshore Critical Minerals and Resources”, the Executive Order instructs various United States agencies to take steps, on an expedited basis, to safeguard America’s interests both in respect of areas within American national jurisdiction and in areas beyond national jurisdiction. It seeks expressly to ensure American mining leadership in the oceans by garnering domestic capabilities, supporting investments, and coordinating governmental efforts. Among other things, the US shall also consider a strategy for ensuring “a secure supply of materials critical to national security”.

This Executive Order is a technical instrument that provides marching orders for various US departments of government. But its intent is clear: in order to ensure American dominance in the mining of the oceans, the US must take steps now. These steps shall include the grant of leases to various entities and the general promotion of American competitiveness.

200 MILES AND BEYOND

The scope of the Executive Order covers both maritime areas within the jurisdiction of the US under the doctrine of the continental shelf as well as the deep seabed beyond the outer limits of the continental shelf. It is widely accepted that the resources in a state’s continental shelf belong to that state, normally out to a limit of 200 nautical miles with some variations to take account of geographical circumstances. The approach taken in the Executive Order on American national jurisdiction, the continental shelf point, may therefore be read as largely uncontroversial under international law: the Executive Order affirms the generally accepted view that mineral resources of the American continental shelf belong to the US.

On the other hand, serious legal problems are likely to arise concerning any American claim over the mineral resources of the area beyond American national jurisdiction (the deep seabed area). Under the Executive Order, the US will contemplate the grant of leases to companies to extract minerals from the deep seabed area. So, the US is behaving as if it owns the resources of the deep seabed and may allocate the resources as it sees fit. May the US act in this way without violating international law? This is the central legal problem raised by the Executive Order.

US PERSPECTIVE

The international law on deep seabed mining has been characterized by marked division between the US and most developing countries. In brief, the US has maintained, at least since the presidency of Ronald Reagan, that deep seabed resources may be mined by any and all countries pursuant to the doctrine of freedom of the high seas.

On this reading of the law, the US, for instance, is entitled to exploit deep seabed resources on its own volition in much the same way that it enjoys access to fishes on the high seas. This longstanding American perspective, now taken up by the Trump Administration, is based largely on the 1958 High Seas Convention, a treaty which the US maintains is customary international law binding on all states.

To reinforce this perspective, the US has also argued that major developments in seabed mining law accepted by some 170 states in the 1982 Law of the Sea Convention are not applicable to the US. The 1982 Law of the Sea Convention sets out in considerable detail a regime designed to regulate deep seabed mining, which prohibits mining by countries without approval of the International Seabed Authority. The US rejects the deep seabed rules in the 1982 Convention, emphasizing that no American Administration has ratified this treaty.

UN RESOLUTIONS

By the same token, various US administrations – especially those under the Republican banner – have argued that particular United Nations Resolutions on the deep seabed are not statements of binding law. So, for example, the US maintains that General Assembly Resolution 2749 (1970), which proclaims that the deep seabed and its resources are the “common heritage of mankind”, does not, as a matter of law, bar the US from exploiting the resources on its own.

In sum, the US has consistently opposed the idea that it cannot undertake seabed mining without approval from the International Seabed Authority. Implicit, then, in Trump’s Executive Order is the notion that the US has free access to the deep seabed on a first come, first served basis, and that they may derive seabed mineral benefits without subjecting their mining actions to the control of the International Seabed Authority.

DEVELOPING COUNTRIES

In sharp contrast, developing countries (and some other states) have repeatedly rejected the post-Reaganite American perspective. Numbering more than 120 states, developing countries as a group have, for over 50 years, embraced the view that deep seabed mining is to be undertaken only pursuant to the rules in the Law of the Sea Convention. For these countries, because deep seabed resources are indeed the common heritage of mankind, access to them must be regulated by the International Seabed Authority. Likewise, developing countries anticipate that deep seabed resources are to be shared in ways that pay special regard to developing countries.

Therefore, the deep seabed mining regime has been perceived by many developing countries as a tool of development for Third World states that lack technological foundations to conduct mining operations themselves. The developing countries also point out cogently that the American approach, based on the first come, first served, high seas approach will surely lead to conflict, uncertainty and an unseemly grab for resources by rich countries – quite the opposite of the orderly arrangements in the Law of the Sea Convention.

CUTTING THROUGH

The debate between the US and developing countries has been longstanding and complex. Now, however, President Trump has apparently decided to cut through the arguments by assuming that the United States should take up a special role in expediting seabed mining primarily for their benefit. In this regard, the Trump administration has presumably been influenced by certain current realities.

One is that some of the minerals in the deep seabed, including cobalt, nickel, copper and zinc, are becoming increasingly valuable items in modern industrial processes. Some of these minerals, in the perspective of the US, may be in short supply from land-based sources or may be subject to the control of states other than the US, including China. America is keen therefore to pursue alternative areas in the quest for these minerals.

‘DRILL, BABY, DRILL!’

Second, the Trump administration has, in all likelihood, been encouraged to move forward by industry players in North America. Recent years have witnessed disagreements between countries and entities wishing to explore and exploit seabed resources today, and others that have recommended delay in bringing mining into effect. The latter group, influenced by environmental advocates, argues for greater study of the impact of seabed extraction on climate change and on the seabed ecosystem. President Trump, however, is known to be sharply sceptical of climate change arguments, and so, it should not be surprising that ‘drill, baby drill’ has entered the lexicon of US seabed policy.

Third, it is plausible to suggest that President Trump has decided to break what he perceives to be a log jam in international relations. Deep seabed mining, with primary benefits for developing states, has been on the negotiating table since 1969 when Arvid Pardo, Maltese Ambassador to the United Nations, envisaged a system of shared exploitation of resources held by states on behalf of all mankind. For many years, the regime moved forward at a glacial pace, and just as seabed mining seemed ready to come on stream, some countries are encouraging the Seabed Authority to hold strain on environmental grounds. “Basta!”, may well be the shout from Pennsylvania Avenue.

Fourth, it should be noted that, despite its general orientation, the Trump Executive Order offers a brief nod towards the idea that the international community as a whole has an interest in deep seabed mining. This it does by recommending that the US should prepare a report on “the feasibility of an international benefit-sharing mechanism” for seabed minerals. To some analysts, this will be merely an indeterminate sop to Cerberus, while others (the unrealistic optimists) may see it as a negotiating opportunity towards a new deal on seabed mining among both developed and developing states.

NEXT STEPS

Where does this leave us? The Seabed Authority, in Kingston’s front yard, will no doubt pursue the matter earnestly, and could contemplate obtaining an advisory opinion from the International Court of Justice on the vexed question of whether the US may, on its own, mine the seabed as a freedom of the high seas. At the same time, the US could disregard international opinion, including, one presumes, the views of some of its allies, and proceed, post haste, with the implementation of the Executive Order. Meanwhile, environmentalists will continue to argue for restraint.

There seem to be no dull moments in our current dispensation, even in David Jones’ locker.

Stephen Vasciannie is professor of international law at the University of the West Indies, Mona. Send feedback to columns@gleanerjm.com