The Deep Sea Floor as a Battleground for Justice?
Tirza Meyer Department of Historical Studies, University of Science and Technology, Trondheim, Norway
The Promise of Wealth in the Unknown Depths
In the second half of the twentieth century, marine minerals appeared on the radar of scientists, politicians, and industry. Technology was advanced enough that seabed mining no longer seemed a futuristic dream, and the area where these minerals were found was uncharted territory, meaning that, for a short moment, the wealth of the oceans seemed up for grabs. The mineral that looked most promising in the 1960s, the polymetallic nodule,1 had been discovered in 1873 by the crew of the research vessel hms Challenger. The first marine manganese nodule was taken on board southwest of the Canary Islands, and the vessel continued collecting nodule samples un- til 1876. The largest deposits reported by the crew were located in the Pacific and Indian Oceans, often at great depths.2 It was another 90 years before the geologist John L. Mero attempted to calculate the economic value of nodule deposits in the oceans. In 1964, he published his study, The Mineral Resources of the Sea.3 The estimates looked promising. The nodules, if they were harvested, could bring great wealth to those exploiting them. To prevent a race amongst states or private actors to claim the seafloor, the United Nations (UN) set up the Ad-Hoc Seabed Committee to examine the use of seabed resources outside national jurisdiction in the interest of mankind.4 A race was prevented, but the concept of ‘interest of mankind’ needed to be given legal meaning. This essay argues that advocates for developing countries
1 Polymetallic nodules are also referred to as manganese nodules. They are one of the three marine mineral resources that are regulated and administered by the International Sea- bed Authority (isa). The others are polymetallic sulphides and ferromanganese crusts. See “Deep Seabed Mineral Resources,” isa, last accessed 2 February 2018, https://www.isa.org.jm/ mineral-resources/55. 2 Cf. G.P. Glasby, “Historical Introduction,” in Marine Manganese Deposits (New York: Elsevier Oceanography Scientific Publishing Company, 1977), 1. 3 J.L. Mero, The Mineral Resources of the Sea (New York: Elsevier Oceanography Scientific Pub- lishing Company, 1964). 4 United Nations General Assembly (unga), UN Doc. GA Resolution 2340 (xxii), 18 December 1967, A/RES/22/2340.
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Arvid Pardo’s Speech Fuels Developing Countries’ Hopes
Mero’s estimates made their way to the UN, transmitted through the Maltese ambassador, Arvid Pardo, when he delivered his famous speech about the ap- plication of the concept of common heritage of mankind to the seafloor outside national jurisdiction in the First Committee of the UNGA on 1 November 1967.5 Pardo had been working on a proposal since 1966, when the United States (US) had commissioned the UN to compile a report on deep-sea resources.6 The Maltese government had tested Pardo’s proposal against the “interest of some poor countries (but not the major powers) in the sea,”7 and it was forwarded to the UN in the form of a ‘note verbale’ in August 1967,8 which finally led to Arvid Pardo’s speech in November. Arvid Pardo painted a rosy picture of the resource deposits of the deep seas, in which he relied heavily on Mero’s calculations, stating that “the commercial exploitation of the mineral resources of the ocean floor, … are imminent.”9 He anticipated a bright future for the industry, and told his audience that pro- totypes of commercial mining vehicles were already “under construction.”10 The same applied to the extraction technology, which sounded quite simple: “The nodules will be raked from the ocean floor and pumped into the vessel; from the submersible the nodules will be transferred easily to an accompany- ing cargo-ship by means of floating conduit.”11
5 unga, “Statement of Arvid Pardo,” 1 November 1967, First Committee, 1515th Meeting, UN Doc. A/C.1/PV.1515, para. 5. 6 University of Malta—Arvid Pardo Study Area—Pardo Room, Personal Correspondences and Materials, Undated letter from Dr. Arvid Pardo to Salvino Bussutil. 7 Id., 2. 8 unga, “Malta: Request for the Inclusion of a Supplementary Item in the Agenda of the Twenty-second Session,” Plenary, 22nd Session, 1583rd Meeting, UN Doc. A/6695, 18 August 1967. 9 unga, “Statement of Arvid Pardo,” supra note 5, para. 34. 10 Id. 11 Id.
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Today we know that Mero’s estimations were optimistic,12 and that the extraction technology was more costly and challenging than Pardo had an- ticipated in 1967. Still, Pardo’s speech did not come out of the blue. Several countries, led by the United States, had been looking into seabed resources, and his speech kick-started activity to realize the concept and potential for utilizing marine minerals.
A Constitution for the Oceans?
Elisabeth Mann Borgese “contacted him [Pardo] immediately,”13 when she heard of his speech. At that time, she was working at the Center for the Study of Democratic Institutions in Santa Barbara, California. She had already started drafting a proposal on ocean governance and the common heritage of mankind, to which an “unknown gentleman in Connecticut”14 had drawn her attention. Elisabeth and Arvid started working together during the prepara- tions for unclos iii, launching four workshops and two conferences, Pacem in Maribus (pim) i and ii, which were held in Malta in 1970 and 1971.15 The original idea of their collaboration was to draft “A Constitution for the Oceans”16 that would address all issues related to ocean governance in a holistic way, but would take care of developing countries in particular, by allocating the resources of the deep sea for their benefit. The goal was to avoid “institutionaliz[ing] the division between developed and developing nations,”17 and to promote “systematic planning for the conservative use of ocean resources.”18 Thereby underlining the importance of utilizing the re- sources on and below the seabed.
12 Cf. C. Sanger, Ordering the Oceans: The Making of the Law of the Sea (London: Zed Books, 1986), 18. 13 Dalhousie University Archive—Elisabeth Mann Borgese Fond, MS-2-744, Box 345, Folder 4, Arvid Pardo Retrospect and Prospect, 1999, 1 [MS-2-744]. 14 Id. 15 Cf. Id., 2.; pim Conferences were held until 2013. See “Pacem in Maribus (pim) Confer- ences,” International Ocean Institute, https://www.ioinst.org/about-1/ioi-story/pacem-in -maribus-pim-conferences/. 16 MS-2-744, id, Box 43, Folder 48, discussion on “a constitution for the oceans.” See also, S.V. Scott, “The los Convention as a Constitutional Regime for the Oceans,” in Stability and Change in the Law of the Sea: The Role of the los Convention, ed., A.G. Oude Elferink (Leiden: Martinus Nijhoff, 2005), 9–38. 17 MS-2-744, id, Box 43, Folder 48, 2. 18 Id.
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The first pim conference was about bringing together scientists, political leaders and industry to represent “the internationalization of research & de- velopment,” “the world community of science,” and “the world community of production.”19 Their task was to discuss the utilization of resources, the ecology of the ocean and the role of scientists.20 Elisabeth compiled the out- comes of pim i in a final report. Not all participants agreed on all issues. The US oil industry and its supporters in Congress wanted to operate on a “first come, first served”21 basis, and were critical towards the concept of “common heritage.”22 There had been a “de facto boycott called by the American Petro- leum Institute,”23 not to appear at the Malta conference. James Dawson, an insurance expert from Britain pointed out that the in- dustry was oblivious to the challenges ocean-based mining would pose. He warned that land-oriented industry was “leaping into the sea as if the seabed were a flat prairie where skies are always blue and the sea-weed as high as a sea-elephant’s eye.”24 The American economist Neil Jacoby warned against a “carry-over of terrestrial thinking into the maritime environment,”25 since “too little is known about seabed geology to evaluate concession areas today ….”26 There was concern from scientists that they were “caught in an acute pro- fessional crisis,”27 torn as they were between fast-developing new technologies and industry interests. Paul Ehrlich, a Center Associate, warned of “ecocide”28 if the oceans were swamped by industry interest without regard for scientif- ic knowledge. Others, meanwhile, were concerned that freedom of research would be put at risk if researchers had to avoid collecting data from remote places for fear of causing “exploitation by foreign commercial interests.”29 The differing opinions on successful ocean mining and meaningful alloca- tion of revenue showed even in the 1970s that the discussions in the United Nations would not be easy. Not only was there a mixture of more or less veri- fied scientific knowledge on the technological possibilities and the potential economic value of the marine minerals, there was also no agreement on how
19 Id., Box 43, Folder 49. 20 Id., 1. 21 Id., Box 125, Folder 2, 25. 22 Id., 24. 23 Id., 26. 24 Id., 6. 25 Id., 8. 26 Id. 27 Id., 9. 28 Id., 10. 29 Id., 11.
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No Peace without Economic Justice?
The discord amongst participants of pim i was reflected in the discussions at unclos iii. Those who wanted to use the revenue of the resources in the area outside jurisdiction for the benefit of all mankind found themselves battling resistance from industry and politicians, who wanted to keep the freedom of the seas intact and, if possible, apply it to the seafloor. The first draft of Arvid Pardo’s ‘Ocean Space Treaty’31 was taken to Caracas by the Maltese delegation, but was not carried further, since it was too ‘holistic’. Ultimately Part xi of the 1982 United Nations Convention on the Law of the Sea32 (unclos) secured the principle that resources on the seafloor beyond national jurisdiction would be the common heritage of mankind, and the International Seabed Authority (isa) was established. Unfortunately, the later 1994 Implementing Agreement to the unclos abolished much of its meaning,33 risking that those who rati- fied the Convention, many of them developing countries, would have to pay for an administrative authority without ever seeing any revenue.34
Prognosis of Commercial Exploitation of Seabed Resources
Despite Arvid Pardo’s positive prognosis that ‘commercial exploitation’ of sea- bed resources was just around the corner, deep-sea mining has seemed to be
30 Id., 4. 31 unga, “Draft of Ocean Space Treaty, paper submitted by Malta,” Committee on the Peace- ful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction, 23 August 1971, UN Doc. A/AC.138/53. 32 Montego Bay, 10 December 1982, 1833 u.n.t.s. 3 [unclos]. 33 For a discussion on amendments and the agreement that modified Part xi of the unclos, see E. Mann Borgese, The Oceanic Circle: Governing the Seas as a Global Resources—A Re- port to the Club of Rome (Tokyo: United Nations University Press, 1998), 111–113; D. Free- stone and A.G. Oude Elferink, “Flexibility and Innovation in the Law of the Sea: Will the los Convention Amendment Procedures Ever be Used?” in Oude Elferink, supra note 16, 169–221. 34 Cf. A.G. Kirton and S.C. Vasciannie, “Deep Seabed Mining under the Law of the Sea Con- vention and the Implementation Agreement: Developing Country Perspective,” Social and Economic Studies 51, no. 2 (2002), 63–115 at 113. See also P.B. Payoyo, Cries of the Sea World Inequality, Sustainable Development and the Common Heritage of Humanity (The Hague: Martinus Nijhoff, 1997).
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Conclusion
In 1967, idealists like Arvid Pardo and Elisabeth Mann Borgese, saw a chance to secure a ‘more just world order’ by allocating resources that were outside na- tional jurisdiction to the benefit of all mankind. The promising economic po- tential John L. Mero saw in the polymetallic nodule in 1958 was the engine for this development. In 1967, the time seemed right. Maritime boundaries were still flexible, a potential source of wealth was discovered in ‘uncharted terri- tory,’ and former colonies entered the international arena as developing states with the chance to shape international treaties in a way that could be beneficial for them. Much has changed since the 1970s, and it remains to be seen how much of the common heritage of mankind concept will be left once mining activity starts in the Area, the sea floor outside national jurisdiction.
35 See J. Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge: Cambridge University Press, 2011), 115–153. 36 See, e.g., “World’s First Success in Continuous Ore Lifting Test for Seafloor Polymetallic Sulphides,” Japan Ministry of Economy, Trade and Industry, 26 September 2017, http:// www.meti.go.jp/english/press/2017/0926_004.html; srk Consulting, “png, Tonga, Fiji, Solomon Islands, New Zealand, Vanuatu and the isa,” NI 43-101 Technical Report 2011, prepared for Nautilus Minerals Incorporated (March 2012), http://www.nautilusminerals .com/irm/PDF/1054_0/TechnicalReport2011PNGotherSouthPacificnationsandtheISA; “Exploration 2007–2013,” Nautilus Minerals Incorporated, http://www.nautilusminerals .com/IRM/Company/ShowPage.aspx?CategoryId=190&CPID=1553&EID=99064433. 37 See “Deep Seabed Minerals Contractors,” isa, last accessed 2 February 2018, https://www .isa.org.jm/deep-seabed-minerals-contractors. 38 With regards to the controversy concerning the common heritage of mankind, see K.M.W. Owolabi, “The Principle of the Common Heritage of Mankind,” Nnamdi Azikiwe University Journal of International Law and Jurisprudence 4 (2013): 51–56. 39 With regards to future challenges, see D. Vidas ed., Law, Technology and Science for Ocean in Globalisation: iuu Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Leiden/Boston: Martinus Nijhoff, 2011).
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