International Environmental Obligations and Liabilities in Deep Seabed Mining
On Tuesday 26 June Linlin Sun will defend her dissertation entitled ‘International Environmental Obligations and Liabilities in Deep Seabed Mining’. The dissertation has been written under the supervision of prof. dr. N.J. Schrijver and prof. dr. E.C.P.D.C. De Brabandere.
Deep seabed mining (DSM) – mining activities in the seabed area beyond national jurisdictions (the Area) – is now in a crucial transitional period between exploration and exploitation. Against this background, the question of how to secure the common interest of marine environmental protection in DSM becomes increasingly compelling.
This dissertation deals with this issue by attempting to answer two major legal questions faced by all the participants in DSM – the contractor, the sponsoring State and the International Seabed Authority (ISA).
- What are their international environmental obligations?
- What are the legal consequences in case of a breach of these obligations?
It is argued that, first, general international environmental rules are mostly applicable in the context of the Area, and second, although of different legal natures and playing different roles, participants in DSM are charged with substantively the same international environmental obligations. Most prominently, they all should comply with the principle of prevention, apply a precautionary approach and best environmental practices, and conduct an environmental impact assessment, the purpose of which is to prevent the occurrence of environmental damage. In the event of environmental damage, liability would arise if wrongful acts of the participants and a causal link between their acts and the environmental damage can be proved. The purpose of liability is to redress the damaged environment. Environmental damage is the core concept around which the entire research revolves.
It is further argued that establishing environmental liabilities would encounter formidable practical difficulties as none of the constituent elements is easy to prove in practice. Despite this inherent weakness, liability regimes in DSM are still needed since liability regimes have preventive, reparative and corrective functions. Even though the latter two functions might not be activated in practice, the very existence of liability regimes can serve the function of prevention or deterrence. At the same time, alternative regimes are suggested, such as compulsory insurance or financial security schemes, environmental compensation funds, and regulatory liability of the contractor in the situation of environmental emergency.
The expectation that the exploitation phase is about to commence energizes the contractor, the ISA, as well as States. The DSM legal regime is evolving rapidly. The development of a set of Exploitation Regulations is at this moment the top issue on the agenda of the ISA. By detecting and clarifying the fundamental international rules concerning environmental protection in DSM for all the participants, this dissertation clearly lays a foundation for the further development of the DSM regime, whether political or legal. Specifically, it shows that the environmental aspect will be an inherent restriction to mining activities in the Area in the future. This contributes to a better understanding, from a legal perspective, of the trade-off between economic development and environmental protection, and of the international governance of the global commons for the common interests of the international community as a whole, within and beyond the context of DSM.