1. Introduction
A pivotal point in time has been reached in the ongoing negotiations under the auspices of the ISA towards the adoption of regulations for the commercial exploitation of mineral resources in the deep seabed beyond national jurisdiction (the Area). The negotiations have been in choppy waters since June 2021, when the government of Nauru triggered an obscure rule which requires the ISA to complete its regulatory work within two years’ time.Footnote 1 Nauru made this request in its capacity as sponsoring state of a private contractor, Nauru Ocean Resources Inc (NORI),Footnote 2 which intends to apply for an exploitation contract with the ISA.Footnote 3 When the two-year deadline passed in July 2023, it was clear that the Draft Regulations were far from ready for adoption. Member states are now working on a timeline with the non-legally binding target to finalize the regulations by 2025.Footnote 4 Meanwhile, the exact practical implications of the current legal twilight zone remain a topic of ongoing debate.Footnote 5 The two-year rule provides that when regulations are not in place by the deadline, the Council of the ISA ‘shall none the less consider and provisionally approve’ contractor applications for plans of work for exploitation.Footnote 6 With this ‘sword of Damocles’ hanging over the negotiations,Footnote 7 there is a growing sense of unease with the potential imminence of the exploitation phase and the need to take fundamental decisions under time-pressure.
Commercial exploitation of the deep seabed is not a prospect that has suddenly arisen out of the blue though. While previous decades in the life and work of the ISA have triggered far less public attention, it has, to date, adopted regulations for the exploration phase of deep seabed mining,Footnote 8 and granted 31 contracts for prospecting and exploration of deep sea minerals to 22 different contractors.Footnote 9 Work on the Draft Exploitation Regulations has been ongoing since 2014.Footnote 10 Due to the scope and complexity of this task, the initial self-imposed deadline to complete the process by 2020 was not met, at which point member states emphasized that the need to ‘get it right’ should override self-imposed deadlines.Footnote 11 So, are they any closer to ‘getting it right’ by 2025?
If the trigger of the two-year rule has revealed anything, it is how a single sponsoring state – relaying the priorities of a private contractor – can put pressure on an international organization mandated to ensure that activities in the Area designated as common heritage of humankind are carried out for the ‘benefit of humankind as a whole’.Footnote 12 This fuels longstanding and growing concerns shared by member states, scientists, NGOs, and civil society alike, that full implementation of all components of the common heritage principle – including the protection of the marine environment,Footnote 13 and the equitable sharing of benefits derived from activities in the AreaFootnote 14 – should take precedence over the commercial interests of a handful of industry stakeholders from the global North. The African Group warned in response to Nauru’s request that it ‘is likely to weaken rather than facilitate the development of an effective regime fully embodying the common heritage of humankind principle’.Footnote 15 A Chilean delegate reminded the ISA Assembly that it is member states who are called upon to protect the common heritage of humankind, not contractors.Footnote 16 Some critics have pointed fingers at Nauru with arguments invoking its obligation of good faith or an abuse of rights.Footnote 17 Yet, this arguably amounts to little more than shooting the messenger. A more fundamental question appears to be at stake here: how does ‘the public interest’ in a global commons that is legally designated as such become constructed in a way that conflates diverse and opposing interests in favour of value extraction by a limited number of (mostly) private actors?
The universalist nature and substantive indeterminacy of the common heritage principle lends itself to support an ‘ideology of mutuality’,Footnote 18 which allows actors to dress opposing interests in universalist terms, making them appear mutually supportive.Footnote 19 The current course of implementation of the seabed regime and the work of the ISA appear to be premised on such a conflated conception of universal public interest, under which the promise of ‘sustainable resource development’ through commercial exploitation equals distribution (primarily via royalty payments to the ISA), thereby equalling ‘benefit’ for humankind. Along this line of reasoning, the main outstanding challenge for the exploitation regulations is then to find an acceptable ‘trade-off’ with the social and environmental costs of commercial deep seabed mining. Hence, much of the ongoing debate – both in the regulatory realm and among commentators – is understandably focused on how to deal with the risks, in particular environmental risk.
By shifting the focus instead to the concomitant and equally crucial notion of benefit, this article seeks to illuminate the inherent contradictions and distributional asymmetries obscured by the conflated yet purportedly universal conception of public interest in exploitation. It builds on the premise that narratives of universality, such as that inherent in the common heritage principle, are prone to produce false necessities. It follows Marks in her observation that such narratives also serve as vehicles for ideology: ‘discursive manoeuvres that help to legitimate and thence stabilise existing configurations of power’.Footnote 20 False necessity obscures potentiality by presenting as self-evident what is actually precarious and contingent.Footnote 21 Contingency is understood here as opposed to necessity, but should not be equated with chance or accidental or arbitrary action.Footnote 22 Marks also warns about ‘false contingency’ which obscures the forces and systemic constraints that shape the conditions and limits of possibility in a particular scenario.Footnote 23 The aim of the present article is to reposition potentiality in a regime that continues to be in the making. It takes up Feichtner and Ranganathan’s suggestion to take seriously the possibility of recovering conceptualizations of global commons that ‘point away from a political economy built on the competitive pursuit of interests, in which commercial considerations come to drive the exploitation of nature’.Footnote 24 It uses the concept of false necessity to question the perceived urgency and inevitability of commercial exploitation of the deep seabed, more specifically to the extent it obscures and pre-empts more inclusive conceptions of ‘benefit’ for humankind, while also showing that this potentiality is not evenly distributed.
The argument will proceed in three steps. First, ‘exploitation’ is positioned within the context of the common heritage principle (Section 2). A very brief history of the common heritage regime does not purport to comprehensively uncover all contingencies throughout its turbulent history and aim for universal participation, but rather to unsettle the sense of ‘necessity’ in the course of a regime that continues to be in the making today. The second part focuses on the role of the ISA in this process to draw out the substantive tensions and contradictions between the commercial, distributive, and environmental components of its mandate. It shows that, as a result, no single understanding of public interest can take precedence over others, hence exploitation cannot be ‘necessary’ to benefit humankind (Section 3). The third part critically reviews the most dominant arguments in favour of exploitation to show how an evolving narrative of necessity continues to justify the costs of exploitation to humankind, while obscuring the true beneficiaries and pre-empting more inclusive conceptions of benefit (Section 4).
2. Exploitation and the common heritage principle
The deep seabed regime provides a laboratory setting in which the conflation of apparently opposing interests into a universalized conception of ‘the public interest’ materializes, revealing the ambivalent role of international law in that process. A juxtaposition of the following two statements serves to illustrate this point. On the occasion of the twenty-fifth anniversary of the ISA, its Secretary General Michael Lodge characterized the ISA and its work as ‘a unique experiment in civilisation; it is the only example that we have of a global commons that is managed internationally for the benefit of all humanity’.Footnote 25 On a second occasion, he articulated the following – not uncommon – argument that:
it is useless and counterproductive to argue that an a priori condition for deep-sea mining is an existential debate about whether it should be permitted to go ahead or not. The international community passed that point already many years ago. This is because one factor that distinguishes deep seabed mining from any other extractive activity, or indeed any other ocean use, is the nature of the underlying legal regime established by the Law of the Sea Convention.Footnote 26
This narrative should be questioned for a number of reasons. Firstly, when considering the role of an international organization with a mandate to conduct ‘a unique experiment in civilisation’ by managing a global commons for the benefit of humankind as a whole, existential questions are rather pertinent. Such questions include: what constitutes ‘benefit’, who determines this, and who are the actual ‘beneficiaries’ behind the universalist notion of ‘humankind’? Secondly, the turbulent history of the seabed regime shows that the international community did not uniformly and decidedly ‘pass that point’ many years ago, but that the decisions taken at the time were contingent, made on the basis of erroneous and incomplete knowledge, starkly diverging motives, and usurped by an extractive ideology that came to dominate other core components of the common heritage principle. It is therefore indeed the nature of the common heritage regime and the tensions remaining within it that distinguish it from other extractive activities, and therefore warrant continued enquiry into the fundamental questions posed above before the final frontier of commercial exploitation is crossed once and for all.
While contemporary connotations of ‘common heritage’ may bring inclusive understandings of ecological and social value and images of trusteeship to mind,Footnote 27 there is no doubt that the designation of the Area as common heritage of humankind was rooted in an exploitation-oriented rationale.Footnote 28 On what terms and conditions such exploitation was to unfold, however, was far from a given. It was the Maltese ambassador Pardo’s famous speech to the UN General Assembly in 1967 that, although not the first to articulate the common heritage concept as such, imprinted the prospect of unparalleled riches waiting to be recovered from the ocean floor firmly onto the international consciousness, combined with a sense of urgency.Footnote 29 Pardo spoke to a fear that resonated with newly independent states in particular, warning that industrialized states with the financial, technological, and military means would lead a ‘scramble’ for the deep seabed analogous to the nineteenth century colonial scramble for territory – leaving developing states (with economies heavily dependent on the export of commodities) once again on the losing end.Footnote 30 Pardo’s proposal to prevent this scenario was that the deep seabed would be designated as common heritage of humankind, and that a new regime and an international body would be established for its administration, notably including environmental management.Footnote 31 According to Pardo, this was ‘the only alternative by which we can hope to escape the immense hazards of a permanent impairment of the marine environment’ and to ensure that the riches of the seabed would be exploited peacefully ‘with harm to none and benefit to all’.Footnote 32
His reasoning leveraged existing tensions between developed and developing states effectively.Footnote 33 During that very same 1967 session, as per Pardo’s proposal, the UNGA adopted a resolution that established the Seabed Committee to continue work on the topic.Footnote 34 In 1969, a majority of developing states pushed through another key resolution, the Moratorium Resolution, that froze claims to the seabed in the meantime.Footnote 35 This was followed by the 1970 Declaration of Deep Seabed Principles which reaffirmed the deep seabed’s status as common heritage of humankind, reiterating the objective of the future regime to ensure equitable sharing of benefits derived therefrom, as well as the need to establish rules and standards to protect and conserve the marine environment.Footnote 36 The debate and work within the Seabed Committee carried into the Third UN Conference on the Law of the Sea (UNCLOS III) which convened for the first time in 1973 to negotiate what would eventually become the 1982 UN Convention on the Law of the Sea (UNCLOS).
Throughout this same period, the idea of a ‘New International Economic Order’ (NIEO) was gaining traction.Footnote 37 The NIEO movement sought to address the economic power disparities and substantive inequalities in international relations between developed and (newly independent) developing countries, and one means to achieve this was through a more equitable distribution of benefits from developmental and technological progress, including through access to previously unattainable natural resources. The deep seabed and the prospect of a new legal regime based on the common heritage principle soon became a flagship topic on the NIEO agenda. However, as Ranganathan’s critical history of Pardo’s mission shows, Pardo himself was not a direct spokesperson for the NIEO, and even took a stance counter to some of its key policies.Footnote 38 The momentum generated by Pardo’s speech was most likely a function of its timing and the almost utopian, yet erroneous, presentation of the economic potential of seabed resources: ‘Pardo here was guilty of hypostasizing facts … presenting an account of “reality” that was selective and optimistic at best, wildly speculative at worst, and irresponsible in exacerbating existing developed/developing tensions.’Footnote 39 While the accuracy of the figures and sources on which Pardo had relied were soon debunked,Footnote 40 his proposal had taken root at a time of general technological and scientific optimism. The seabed bandwagon had taken off and was not (yet) to be stopped.
Some interesting parallels emerge here with the current regulatory process towards the commercial exploitation phase. First, the urgency invoked by Pardo to commit to the negotiation of a new treaty regime meant that an earlier, and at the time still ongoing, comprehensive technical study by the UN Secretariat on different aspects of seabed regulation was cut short by the UNGA’s establishment of the Seabed Committee. As Ranganathan observes:
We cannot be certain that the Secretariat, had it been able to complete its work before the issue became prominent, would have arrived at a better regime, but we can surmise that it would have avoided decision making on the basis of delusive “facts”. Pardo’s intervention was a critical event that changed the course of law-making on the seabed.Footnote 41
Today, scientists warn that the available knowledge and data of deep sea ecosystems is insufficient to enable evidence-based decision making or to provide a basis for sound environmental regulations – a challenge to which we shall return further below.Footnote 42 Second, stressing the need for a dedicated regime and treating deep seabed resources as somehow distinct or disconnected from other ocean uses and governance challenges arguably contributed to the self-contained and over-emphasized position that the development of the seabed regime enjoyed throughout UNCLOS III and continues to enjoy today.Footnote 43 This disconnect has echoes in the process leading up to the recently adopted International Agreement on Biodiversity Beyond National Jurisdiction.Footnote 44 Disagreement along developed/developing state lines on whether marine genetic resources on the seabed should be subject to a common heritage or high seas freedoms-based regime marked the negotiations, while the need to ‘not undermine’ existing institutions and an apparently restrictive view of the ISA’s role and mandate in areas beyond national jurisdiction were established early on.Footnote 45 The common heritage of humankind principle is still mentioned in the text of the Agreement alongside high seas freedoms, but only as a guiding principle.Footnote 46
Pardo, for better or worse, arguably also relied on a false necessity in assuming that the historical means of securing access to natural resources would be replicated. His image of a deep seabed ‘scramble’ did not reflect the fact that the dynamics of imperialist power-structures were already changing. In the wake of the decolonization process, (former) colonial powers were relying on means other than ‘land grabbing’ to gain and retain access to natural resources, notably through international trade agreements, protection of foreign investment, and development aid regimes.Footnote 47 While the substantive indeterminacy of the common heritage principle provided developing states with a testing ground for NIEO-inspired development policies within the new seabed regime, it also meant that the concept could be ‘co-opted’ by industrialized states over the course of nearly a decade of UNCLOS III negotiations.Footnote 48 The developing states were primarily interested in reducing inequality by securing actual participation in seabed exploitation, ideally by means of an international monopoly and the equitable distribution of benefits derived therefrom. The industrialized states, on the other hand, were primarily interested in securing access for private corporations and investors ‘on the logic that [minerals] supply was best guaranteed through commercial enterprise reacting to market demands’.Footnote 49 This divergence was not resolved by the mere designation of the resources as ‘common heritage of humankind’ and set sharp dividing lines for the substantive negotiations on how to operationalize the regime.
A fair number of the policies that developing states pushed for initially made it into the negotiating text by 1975, albeit in compromised form. However, against a background of rising cold war tensions, the dynamics changed markedly when President Reagan was elected in 1980. It became clear that the US and several other industrialized countries had objections pertaining exclusively to the seabed regime contained in Part XI of the draft Convention, specifically those provisions that defied free-market principles and protected developing states’ interests.Footnote 50 A particularly thorny issue was the concept of an ‘international industry’ in the form of ‘the Enterprise’: a dedicated body that was to function as the operative mining arm of the ISA. For the industrialized states, this was the epitome of ‘international socialism’.Footnote 51 For developing states, it was the only way to ensure actual participation in a technologically advanced future industry.Footnote 52 While the initial economic and technological optimism around seabed mining had faltered by this time, the topic remained hot for ideological reasons,Footnote 53 but also because developing states continued to be fed ambiguous and inflated information about the practical and economic feasibility of seabed mining.Footnote 54 With the ideological positions of states and the substantive terms of the draft regime thus divorced from practical reality, the consensus process through which UNCLOS was being negotiated as a package deal eventually broke down on the seabed regime.
The Convention’s text was adopted by vote in 1982, but it quickly became apparent that without further adjustments to Part XI the entry into force of UNCLOS would become dependent entirely on ratifications by developing states. As far as the Area was concerned, it was also evident that operationalizing the regime through an ISA that could not count on the participation (and financial contributions) of developed states was hardly realistic. The search for compromise thus continued through ‘informal consultations’ between 1990 and 1994 under the guise of commitment to the ‘universality’ of the Convention,Footnote 55 which had become code for amending the original Part XI to make it acceptable to the industrialized states.Footnote 56
The Part XI Implementing Agreement was eventually adopted by consensus in 1994 and entered into force that same year together with UNCLOS. The common heritage principle remains front and centre of the Implementing Agreement and the environmental component remained untouched. Footnote 57 Apart from that, the original Part XI regime was effectively rewritten to replace the provisions that facilitated direct participation by developing states and make way for market principles.Footnote 58 The independent functioning of the Enterprise was put on halt,Footnote 59 mandatory transfer of technology was scrapped,Footnote 60 and so were production ceilings and a compensation fund intended to protect land-based producers of minerals.Footnote 61 Financial obligations of states to the ISA and contractor application fees were reduced,Footnote 62 and, importantly, decision making procedures within the ISA were changed to steer legislative power away from the plenary Assembly towards the executive Council. The Council has a limited membership of 36 states and operates with a system of ‘chamber voting’ which gives special interest groups a veto in some instances,Footnote 63 and thereby developed states more control over ISA decision making.Footnote 64 Almost ironically, Pardo’s initial proposal had already foreshadowed this in his rejection of the idea that the UN General Assembly could administer the seabed for the practical reason that it was ‘hardly likely’ that the developed countries ‘would agree to an international regime if it were administered by a body where small countries, such as mine, had the same voting power as the United States or the Soviet Union’.Footnote 65 This acceptance of inequality in decision making is an example where Pardo’s proposal runs counter to NIEO objectives. Where the Implementing Agreement had perhaps the most significant implications for both distributive and environmental justice, however, and what the developing world arguably underestimated and failed to reign in, was the de facto relocation of power to private enterprises.Footnote 66 This continues to have striking manifestations in the seabed regime and the workings of the ISA today, as detailed further below.
It is undeniable that the Implementing Agreement marked the ‘unmitigated victory’ of market ideology and the final demise of the NIEO project.Footnote 67 Yet, it is not the dominance of particular ideologies alone that determines the available choices and their chances of success. This brief history of the seabed regime has also illustrated that potentiality is not evenly distributed; that actors and arguments are predisposed to take precedence over others, or in other words, that ‘the terrain of struggle is not even’.Footnote 68 As stressed by Venzke, the possibilities of choice and alternative action in international law are inherently tied to the dynamics and structures of international law-making processes.Footnote 69 The negotiating modalities of UNCLOS III, geared towards a ‘consensus package deal’ of carefully crafted compromises,Footnote 70 put any majoritarian politics of the developing states at the mercy of the developed states (minority) who had the power to block the consensus process – as they did precisely on the seabed regime.
The convergence, or perhaps strategic (re)framing, of two strands of ideology ultimately enabled this deadlock to be overcome in favour of the developed states: neoliberal thinking about economic development that steadily impregnated the positions of developing states,Footnote 71 and the ideal of universal participation in the new UNCLOS.Footnote 72 In terms of process, this change of strategy was complemented by a rhetoric of ‘technical pragmatism’ and a rationality of ‘accepting the facts’ of the impracticality of seabed mining for the foreseeable future, which usurped the more ideological dividing lines that had dominated in the early 1980s.Footnote 73 Both process and ideology were thus married successfully in the project of the Implementing Agreement, reflecting what Koskenniemi and Lehto describe as:
not only the paradox that the concessions to industrialized States were negotiated under a communitarian public rhetoric, but the larger irony of liberal language which compels power to lose its name as it enters the arena of public policy and, thus unrecognised, assures its victory.Footnote 74
This legitimizing and co-ordinating potential of the communitarian public rhetoric that is inherent in both the common heritage principle and in the aim of universal participation is facilitated by the substantive indeterminacy of these principles, which allows protagonists to dress opposing (national) interests in universalist supranational terms, making them appear mutually supportive.Footnote 75 Feichtner describes how the Implementing Agreement ‘depoliticised’ the regime and the diverging underlying interests by reformulating its objective and presenting its market orientation as a win-win situation: ‘if the objective of revenue generation is replaced with a public interest in economic growth, then commercial and public interests coincide’.Footnote 76 In other words, a prime example of the ideology of mutuality at play.
As the brief history recounted above shows, facilitating exploitation has been a core component of the common heritage principle throughout its history, as have the other two components of equitable distribution of benefits and environmental protection. This history also illustrates that the substantive content of these components is open to be conceived on the basis of a plurality of interpretations and interests, and indeed has been reconceived under ideological shifts and changing knowledge, to which the Implementing Agreement bears witness. However, underneath the universalist rhetoric, the legal framework and mandate of the ISA still carry within themselves the same tensions and contradictions that marked the negotiating history, and, as the next section will show, these tensions are becoming ever more pronounced in light of present-day knowledge and conditions.
3. Exploitation and the mandate of the ISA
Although a lot of work on the development of the Exploitation Regulations has undeniably been done over the past years, a lot also remains outstanding.Footnote 77 Member states have widely expressed concern about having to work under time pressure and in the face of too many uncertainties.Footnote 78 Now that the two-year deadline has passed, contractors can in principle submit applications for a plan of work to the Council for consideration.Footnote 79 Some member states have called for a precautionary pause on considering applications until sufficient scientific knowledge and data on deep sea ecosystems is available to inform decision making.Footnote 80 Even the call for a moratorium – until recently voiced primarily by scientists, NGOs, global business, and civil society – has been uttered inside the walls of the ISA.Footnote 81 Notable was President Macron’s open call for a ban on deep seabed mining, first at the 2022 UN Oceans Conference in Lisbon, and again at COP27 in Sharm El Sheikh.
Proceeding to the exploitation phase, whether on the basis of fully adopted regulations or some form of provisional or transitional regime, cannot be deemed to benefit humankind as long as the ISA is not fulfilling all components of its mandate. As this section will elaborate, this is not currently the case for a number of reasons. It may be noted that warning signs have already been flagged over a period of time. The first Periodic Review of how the regime for the Area operates in practice (pursuant to Article 154 of UNCLOS) was conducted in 2016, and found that the ISA was ‘not yet fulfilling its obligation to ensure that activities in the Area are carried out for the benefit of mankind’. Footnote 82 A variety of concrete issues were highlighted, including the prioritization of developing some parts of the regime over others, a lack of transparency and stakeholder participation, and a lack of effective scrutiny of contractor and sponsoring state performance.Footnote 83 On the institutional level, commentators and member states alike have long raised concerns that ISA institutional practices fall below UN standards.Footnote 84 With a mandate to act on behalf of humankind, if anything, one would expect a ‘higher moral role’ than the average international organization, and the accommodation of ‘a plurality of voices’ – also when these express views that do not directly align with those of the ISA.Footnote 85
While steps are being taken to address some of these issues, they appear to be symptoms of more structural asymmetries in the institutional workings of the ISA and the different parts of its mandate. At least on the level of political discourse, the ISA frames its ongoing work in the context of the Sustainable Development Agenda.Footnote 86 Or in slightly less modest terms: as ‘the best example of how the international community can collaborate for environmental protection whilst at the same time allowing for sustainable use of a critical shared resource’.Footnote 87 The ISA recognizes that the management of this global commons ‘has at its heart the resolution of trade-offs through collaborative, evidence-based decision-making’.Footnote 88 However, as will be unpicked in more detail below, more than a trade-off, ‘sustainable seabed exploitation’ appears to be a contradiction in terms. It is unrealistic, if not impossible, for the ISA to effectively achieve its commercial, distributive, and environmental goals all at the same time. The tensions between these core components of the mandate will be considered in turn.
3.1 Exploitation and protection of the marine environment
Starting with the implementation of the ISA’s obligation to ensure effective protection of the marine environment, the Periodic Review acknowledged that ‘this is not always an easy trade off with facilitating seabed mining, which is inherently a destructive industry’.Footnote 89 This framing as a ‘trade-off’ reflects the dominant perception of environmental protection as an ‘externality’ to the goal of exploitation, rather than an independent objective. Such a narrow interpretation of the environmental mandate is difficult to reconcile with the text of the Convention. UNCLOS requires the ISA to adopt rules and procedures not only to prevent and control pollution and other hazards to the marine environment, including the coastline (i.e., not limited to localized impacts), but also for the protection and conservation of natural resources of the Area.Footnote 90 The narrow interpretation also does not chime with today’s understanding of the fragility and largely unexplored biodiversity of deep sea ecosystems, their interconnectivity with ocean health and the global climate system at large, and thereby with human health, livelihoods, and human rights reliant on these ecosystem services.Footnote 91 The vulnerability of deep sea ecosystems is further amplified by the impacts of climate change, which limit their resilience to the impacts of human activities.Footnote 92
The application of the precautionary approach, which is front and centre of the ISA’s environmental policies and regulations,Footnote 93 does not fundamentally alter this ‘trade-off’ premise. As long as certain duties are fulfilled to assess, monitor, and manage risks, the principle justifies activities being approved in the face of uncertainty as to the exact extent and nature of the environmental risk involved. This is because the precautionary principle itself does not prescribe how risks and benefits ought to be defined and weighed in a specific scenario: a balancing act that is largely informed by extra-legal (scientific) knowledge and data. This is where the key challenge and controversy in the implementation of the environmental mandate of the ISA arises, because evidence-based decision making and any assessment of the adequacy of environmental management relies on sufficient ‘evidence’ (i.e., scientific knowledge and consolidated environmental baseline data) being available in the first place.
A recent study into scientific knowledge gaps concluded on the basis of extensive literature review and stakeholder consultations that currently:
despite an increase in deep-sea research, there are few categories of publicly available scientific knowledge comprehensive enough to enable evidence-based decision-making regarding environmental management, including whether to proceed with mining in regions where exploration contracts have been granted. Footnote 94
At least 15 critical gaps were identified in the scientific information needed for contractors to be able to develop robust and comprehensive environment impact assessments, environmental monitoring and management plans, and, crucially, for the ISA to effectively fulfil its regulatory and enforcement responsibilities in this regard. Footnote 95 In short, the extra-legal information needed to take informed decisions on the extent and allocation of environmental cost and the conditions under which a ‘trade-off’ may be acceptable, is insufficient at present. The interpretation and application of the precautionary approach can then work both ways. It can mean that an activity is permitted in the face of this uncertainty under certain conditions and procedural safeguards that serve to justify the environmental risk as an acceptable ‘trade-off’. It can also be relied on to justify the postponement or prohibition of the activity altogether – which explains why this same principle is being invoked in support of a (temporary) moratorium on seabed mining.Footnote 96
The ‘trade-off approach’ to environmental costs is also reflected in the substantive obligations under the Draft Exploitation Regulations, for example those that require ‘restoration and rehabilitation’ of the Area.Footnote 97 It begs the question whether effective conservation, restoration, and rehabilitation measures are even ecologically and practically possible. The term ‘restoration’ is arguably misleading because this suggest that a damaged area can be restored to a previous ecological state, while scientific studies show that the resilience of the deep sea marine environment is low, and that nodule habitats, for example, take centuries to recover from disruption.Footnote 98 There are at present no successful approaches to restoring or rehabilitating deep seabed ecosystems, and the costs and technical challenges involved, certainly at scale, are likely to be prohibitive.Footnote 99 It is, thus, no surprise that the Draft Regulations foresee the establishment of an Environmental Compensation Fund to compensate in monetary terms for environmental damages when these cannot be recovered from contractors or sponsoring states.Footnote 100 The exact purposes of the fund, who will contribute to it, and how much, remain to be agreed upon. In addition to the regulations, the ISA’s environmental policy in the form of Regional Environmental Management Plans (REMPs) is envisaged as a ‘primary vehicle’ through which to realize its environmental mandate.Footnote 101 Also on this point work and discussions remain ongoing, but recent scientific scrutiny of the work in progress suggests that all current management measures, including the designation of protected areas that are closed to mining, are not suited to effectively protect the marine environment from harmful impacts of mining.Footnote 102 Proceeding to approve an exploitation application on the basis of the regime as it stands would therefore arguably not be in accordance with the ISA’s environmental obligations.
To link this conclusion back to the concept of benefit, one could of course take the view that a certain degree of irreversible environmental damage and loss of ecosystem services is an acceptable trade-off: a loss for which humankind can be compensated in either monetary terms or other benefits, or in combination with some form of offsetting (substituting one type of ecosystem by the protection of another).Footnote 103 Either way, accepting any measure of environmental risk and internalizing that cost inevitably comes at the expense of other components of the common heritage regime, in particular its distributive potential. Afterall, the environmental risks and costs involved, including those paid into some form of compensation fund, would have to be discounted somewhere if contractors’ profit expectations are to be safeguarded at the same time. This will almost inevitably mean lower royalty rates, leaving less for the ISA to distribute.
3.2 Exploitation and equitable benefit sharing
Taking now the objective of maximizing proceeds for the ISA to equitably distribute as our point of departure, an immediate tension emerges with the need to attract contractors and private capital.Footnote 104 The yet to be developed financial mechanism (including an eventual benefit sharing mechanism) will have to grapple with this conundrum. An Open-Ended Ad Hoc Working Group of the Council was created in 2018 and has been working on this part of the regime with the help of external consultants.Footnote 105 The current approach to the payment mechanism shows a strong emphasis on incentivising mining by protecting contractors’ profit expectations, rather than mechanisms to adequately compensate loss or to maximize and eventually distribute financial benefits for humankind.Footnote 106 All models that are currently being considered use set royalty rates based on an estimated mineral content of a polymetallic nodule.Footnote 107 Not only does this neglect the wider social and political context of mineral resource economies and commercial dynamics further up the supply chain (i.e., outside the ISA’s regulatory reach), it also does not account for any externalities, including environmental and socio-economic impacts and costs.Footnote 108 An approach which leaves the economy of seabed mining to ‘unfold’ as exploitation gets underway is based on a presumption which Feichtner argues is not only a practical myth, but also misplaced when it involves the making of a resource economy that is common heritage and thus per definition political.Footnote 109 It also underestimates the role of the ISA and the potential impact of its regulation on the global political economy for raw mineral markets.Footnote 110 It is simply not possible to develop a financial mechanism disconnected from the broader implications of entering into the exploitation phase, even when those are understood in purely financial terms.Footnote 111
If the distributive pillar of the regime is to do justice to the common heritage principle and the ISA’s commitment to the 2030 Agenda for Sustainable Development, all costs of seabed mining should be accounted for at the assessment stage of exploitation applications, in the financial terms of contract, and in the eventual distributive mechanism. This includes environmental, socio-economic, and cultural costs for present and future generations, as well as the cost of economic assistance to compensate interests specifically protected by UNCLOS, such as the effects of seabed mining on the economies of developing countries who are land-based producers of these minerals.Footnote 112
One can already infer that after deducting all these costs, little would appear to be left in the ISA’s pot to distribute for the benefit of all. Hence the African Group has stated that ‘if [deep seabed mining] is such a high cost, risky and inefficient industry that miners cannot afford to fairly compensate mankind, then it would be better if [it] did not proceed until such time that adequate compensation is viable’.Footnote 113 There are economic approaches available that are premised on more inclusive conceptions of cost, such as ‘natural capital’ accounting tools that seek to quantify ecosystem services and the loss thereof.Footnote 114 Regardless whether one agrees that a price tag can or should be placed on the ecological and social value of the deep seabed, under a financial regime that is based on any more inclusive economic conception of the interests of humankind, rather than contractor profit expectations alone, commercial exploitation emerges again as only one possible trajectory among others; and one that is unlikely to be sustainable in the foreseeable future.
The current orientation of the regime towards profit expectations of private actors is difficult to reconcile with any more inclusive concept of the public interest: be that in revenue generation for equitable distribution, reduced global inequality through direct participation, or sound environmental management in the interest of both current and future generations. The contradictions and tensions between the different components of the common heritage regime and the mandate of the ISA sketched here illustrate that no single course of the regime can be deemed ‘inevitable’ or ‘necessary’, and that the underpinning questions of political economy should not be glossed over by a conflated conception of benefit. This resonates with Venzke’s more general observation that:
Also under the spell of neo-liberalism the law continues to be ridden with tensions. The law remains to some degree pliable, not least because what neo-liberalism demands from the law is not so straightforward. Struggles on the inside of the law about what to do with those demands must be part of the story.Footnote 115
It also raises the question how the ISA and its member states perceive its mandate. Is it in the first place an institution that facilitates and regulates a commercial industry? Or one that governs and preserves a global commons for present and future generations? Can it realistically be both? Or somewhere in between? Collins and French would be right to conclude that:
the institution has evolved to ensure that no one understanding of the collective interest, as reflected in disagreement about the very idea of [common heritage] itself, can take precedence over others. The regime accommodates substantive disagreement and competing political interests by incorporating them within the evolving institutional framework of the Authority itself.Footnote 116
Indeed, a view of the ISA as locked into a single-destination trajectory in the implementation of the regime would contradict the ‘evolutionary approach’ to its institutional functioning explicitly foreseen in the Implementing Agreement so that its organs and subsidiary bodies ‘may discharge effectively their respective responsibilities at various stages of the development of activities in the Area’.Footnote 117 If no one understanding of the public interest can take precedence by virtue of the regime itself, exploitation cannot be ‘necessary’ to benefit humankind. The next section will consider how the narrative of necessity is nevertheless used strategically to justify the socio-ecological costs of exploitation, and to obscure more inclusive understandings of benefit.
4. Exploitation as a false necessity
Starting with the most dominant arguments in favour of exploitation, this section will first critically review how necessity comes to function as a justification of the costs of exploitation to humankind. Next, it will unpick who the primary beneficiaries of exploitation are and show how a conflated conception of public interest pre-empts and obscures more inclusive conceptions of ‘benefit’ reflective of a wider range of stakeholders.
4.1 Justifying cost
The main argument in support of commercial deep seabed mining being both necessary and urgent is that it is needed to meet the predicted rise in demand for critical minerals associated with the transition to net zero economies. Cobalt and nickel, for example, are used in batteries for electric vehicles. The ISA accordingly presents its mandate as entailing a responsibility to contribute to this supply, and thereby to sustainable development by ‘responding in a cautious and planned way to the projected dramatic increase in the supply of minerals needed for decarbonisation’.Footnote 118 This position relies on a number of assumptions that are not undisputed, and, according to a recent statement by the European Academies of Science Advisory Council, even misleading.Footnote 119
First of all, in terms of necessity and urgency, different models produce different demand and supply scenarios, all of which involve a considerable measure of uncertainty and tend to presume the current state of technology as a constant.Footnote 120 While it is outside the scope of this article to evaluate these prognoses in detail, it may be noted that recent studies based on the most ambitious decarbonization scenario of net zero by 2050 conclude that deep seabed mining is not necessary to meet this demand.Footnote 121 That may mean that terrestrial mining activities need to be ramped up in the near future – which, as discussed in more detail below, proponents of seabed mining would argue is worse than commencing commercial seabed exploitation. This is arguably a false dilemma, because the advent of a deep seabed mining industry is actually likely to spur competition with land-based producers in the minerals market. At the same time, there is a range of variables, including technological innovation, that may reduce or completely eliminate the use of certain critical metals in batteries for example,Footnote 122 while more circular economic models, integrated transport systems, and recycling could all further reduce demand.Footnote 123
Secondly, as shown above, the ‘cautious and planned’ approach to exploitation that the ISA sets out does not solve the problem that sustainable deep seabed mining remains a contradiction in terms. Markets are not immune to influences from civil society and national regulators who are increasingly aware of the social and environmental risks involved in deep seabed mining, and there are growing expectations on manufacturers to source minerals responsibly.Footnote 124 Major electric vehicle producers have signed a Business Statement in support of a moratorium on deep seabed mining, committing to exclude deep sea minerals from their supply chains.Footnote 125 Several major banks have recently adopted lending policies that exclude finance for seabed exploration and exploitation due to the high environmental, social, and governance risks involved.Footnote 126 In a similar vein, the UN Environment Programme Finance Initiative sent ‘a clear message’ to its members that ‘in their current form, there is no foreseeable way in which the financing of deep-sea mining activities can be viewed as consistent with the Sustainable Blue Economy Finance Principles’.Footnote 127
Questions of financial feasibility and sustainability aside, the narrative outlined above shows the ideology of mutuality at play again. This time, it is presented not as the ‘old wine’ of market-led economic growth through resource extraction that seemingly makes commercial and public interests coincide, but in the ‘new bottle’ of sustainable resource development necessary for decarbonization in the interest of all. The public interest here is posited again as universal in character, yet the justification of ‘necessity’ is rooted in what scholars of critical development and indigenous studies have characterized as an ‘epistemology of crisis’.Footnote 128 Urgency and necessity are key assumptions underpinning such an epistemology: responsive action is needed and cannot wait, hence any harmful consequences of such action for humans or the environment are unfortunate but inevitable, and thus an acceptable trade-off.Footnote 129 The narrative thereby masks and perpetuates dominant forms of power and privilege under an extractivist rationale,Footnote 130 justified by the need to respond to an imminent ‘crisis’ (in this case the projected increase in the demand for minerals needed for decarbonization) in the public interest.Footnote 131 That is not to say that the energy transition is not necessary or urgent, or that climate change cannot be considered a crisis. The critique rather speaks to the manner in which a particular course of action is justified and presented as though there is no other choice. Dominant power-dynamics are obscured in the name of collective action, while the cost of such actions is born by humankind in this case, although not evenly, but by some communities and generations more than others.
Proponents of deep seabed exploitation tend to down-play and justify the environmental and social costs involved by drawing a comparison with land-based mining and positing deep seabed mining as the lesser of two evils. The argument goes that it is ‘not as bad’ as land-based mining of minerals, because the latter is often weakly regulated and, as a result, the social and environmental impacts are high.Footnote 132 The comparison with deep seabed mining is then drawn on two main points. First, compared to terrestrial mining, deep seabed mining offers ‘a unique opportunity to get it right’ by regulating the impacts of seabed mining before commercial exploitation commences.Footnote 133 In terms of chronology this is true, but the fact that an activity is regulated does not necessarily mean that it is ‘sustainable’ or in the public interest. As discussed above, the draft regime is currently not on track to ‘get it right’ if that means delivering on all components of the ISA’s mandate. The second common comparative argument is therefore the more remarkable, namely that social and environmental impacts are ‘lower or absent for deep-sea mining’ compared to terrestrial mining.Footnote 134 It is often coupled with an emphasis on the limited spatial footprint of deep seabed mining in terms of the percentage of the seabed that is being disturbed.Footnote 135 This narrative invokes a particularly disconnected and lifeless image of the deep sea ecosystem, suggesting that the popular image of the deep seabed as a ‘pristine wilderness’ is ‘erroneous’ and that seabed mining by and large ‘involves rocks and mud’.Footnote 136
If one takes a view informed by mounting scientific evidence underlining both the rich biodiversity and interconnectivity of deep sea ecosystems,Footnote 137 such contentions appear misinformed at best, but this narrative also again serves to stabilize dominant power configurations. Because of the remoteness and relative invisibility of the deep sea, those who have access to the technology and (largely confidential) data that map it (i.e., contractors and certain organs of the ISA, notably the Legal and Technical Commission) can assume that others without this access have a different perception of the deep sea ecosystem: ‘in understanding the deep-sea environment as an “imagined” geography, it allows its characteristics and dynamics to be narrated and reified by those in power’.Footnote 138 This spatial disconnectedness also underpins arguments invoking the comparatively small spatial ‘footprint’ of seabed mining. While the two-dimensional image of a ‘footprint’ might make intuitive sense for terrestrial activities, it does not chime with the physical reality of three-dimensional liquid ocean space where the seabed and water column are not disconnected and where impacts are not localized, but multi-dimensional, interconnected, and cumulative.Footnote 139
Arguments invoking the social disconnectedness and alleged lack of social impacts are plainly paradoxical,Footnote 140 as it essentially denies that an activity administered for the benefit of humankind has social implications or communities of people as its direct stakeholders.Footnote 141 Experiences with seabed mining projects in areas within national jurisdiction (i.e., on a state’s continental shelf) suggest that direct impacts on communities are not just hypothetical. In Tonga, exploratory seabed mining is reported to have impacted its fisheries sector, while the controversial and failed Solwara 1 project in Papua New Guinea left the country in huge debt.Footnote 142 It also caused public outcry among local communities who reported an increase in dead fish washing up on their beaches during prospecting activities, including unusual and previously unseen deep sea creatures, and excessively murky waters that interfered with traditional fishing practices.Footnote 143 Locals furthermore suspect that noise pollution from the activities is to blame for the absence of sharks, which affects their customary indigenous cultural practice of shark calling.Footnote 144
On the basis of current knowledge, it cannot be excluded that negative impacts from deep seabed mining in areas beyond national jurisdiction impact coastal communities and the ecosystems on which they rely for their livelihoods and cultural practices, nor that global ecosystem services, including climate regulation, may be affected. Hence, it can be argued that the ISA and its member states have an obligation to consider the human rights implications of their decision making ab initio, including the rights of future generations.Footnote 145 At the very least, it may be clear that the rights and interests involved in the question whether or not to proceed with exploitation are far more diverse than those reflected in the narrative of deep seabed mining as a binary ‘exploitation versus environmental risk trade-off’.
4.2 (Al)locating benefit
Turning now to the conception and allocation of benefit, it should be noted that ‘humankind’ is an undefined term. UNCLOS stipulates that all rights in the resources of the Area are vested in humankind as a whole on whose behalf the ISA shall act,Footnote 146 but that does not mean that individuals hold rights under the regime. Crucially, upon recovery, minerals extracted from the Area become private property of the contractor.Footnote 147 This raises the question where ‘humankind’ stands as a subject of international law. The Convention could simply have referred to ‘all states’, yet apparently, a broader (undefined) range of stakeholders is denoted in the concept of humankind. Tanaka describes it as a ‘trans-temporal concept’ in that it includes both present and future generations,Footnote 148 which aligns with understandings of common heritage in light of the principle of intergenerational equity.Footnote 149 The critical observer would note that the universalist notion of ‘humankind’ has in terms of international law and political economy of course never included all groups or classes of humans on equal terms, and to the extent that it centres ‘man’ as a dominating force over the natural environment, it also facilitates the resultant (selective) commodification thereof.Footnote 150
For proponents of seabed exploitation, ‘benefit’ is primarily understood in terms of financial gain from extraction that contributes to ‘sustainable’ development and growth. In that scenario, the primary recipients of such proceeds from activities in the Area are not ‘humans’ or ‘humanity’ as such, but benefit is channelled through other privileged stakeholders. The yet to be developed benefit sharing mechanism would distribute any financial benefit accrued by the ISA from contractor royalty payments (after deduction of costs) equitably among member states, and thereby – at least in theory – benefit their respective constituencies. However, as illustrated above, it is questionable whether any meaningful amounts can be generated for distribution should exploitation commence on the current draft terms of the regime. It may be clear that the bulk of any financial benefit to be obtained from exploitation thus flows in the first place directly to private contractors. Common arguments in favour of exploitation nevertheless tend to emphasize two ways, in addition to benefit sharing via the ISA, in which commercial exploitation benefits an undefined ‘humankind’: via the role of sponsoring states, and through the generation and enhancement of deep sea research and data. Each shall be considered in turn.
Taking on sponsorship of a private entity wishing to undertake activities in the Area is typically presented as directly beneficial to the sponsoring state, in particular for developing states. Sponsoring states in turn have an obligation of due diligence to ensure that the contractor complies with the terms of the regime and its contract,Footnote 151 and a responsibility shared with the ISA to ‘contribute to the common interest of all States in the proper implementation of the principle of common heritage of [hu]mankind’.Footnote 152 Out of the current 22 sponsoring states, ten are developing states, including six small island states.Footnote 153 This can be explained by the fact that developing states are particularly attractive sponsoring states. Under their sponsorship, contractors (thus far primarily from the global North) can get access to areas reserved under the regime for exploration and exploitation by developing states.Footnote 154 The full owner of NORI, the Canadian The Metals Company (TMC), for example, holds exploration contracts sponsored by Nauru, Tonga, and Kiribati respectively, all in reserved areas in the Clarion Clipperton Zone.Footnote 155 It has been suggested that sponsorship partnerships with Pacific small island states are furthermore attractive due to favourable political and regulatory environments, and that there may be an additional interest of foreign corporations in gaining future access to mineral resources located in areas within national jurisdiction of these states.Footnote 156
Depending on the exact sponsorship arrangement, benefits for the sponsoring state could take the shape of tax revenue, increased employment opportunities, and other forms of local investment and capacity building. In short: a promise of economic development for the sponsoring state. Under this generic promise of development lies the question how that translates into any form of concrete benefit for relevant communities. Nauru is a case in point. During the colonial period, most of the island was strip-mined for phosphate by European corporations, leaving a devastated moon landscape behind.Footnote 157 Since then, strategies to increase economic gain from the exercise of its sovereignty have ranged from providing a (OECD blacklisted) tax haven, to hosting controversial refugee camps for Australia in return for financial assistance.Footnote 158 Under the current sponsorship arrangement with NORI, it is unlikely that Nauru can expect to see any substantial revenue.Footnote 159 The confidentiality of sponsorship arrangements between corporations and developing states makes it difficult to assess the exact terms and conditions, or compliance with treaty obligations.Footnote 160 There are, however, long-standing general concerns over whether a sponsoring state has any form of effective control over a sponsored entity.Footnote 161 Even in the event that significant revenue would be generated and injected into a local economy, a robust governance system and sufficient capacity is needed to avoid the many problems and injustices associated with the ‘resource curse’ in the past, including in the relations with indigenous peoples, who form a majority in many Pacific island nations.Footnote 162
Somewhere between the preferential position granted to developing states under the system of reserved areas, and sponsorship arrangements in practice, the former privilege is taken up by corporations from the global North and the distribution of benefit derived therefrom is lost at sea. Or as Feichtner observes:
While government officials may be in for an exhilarating ride, the newly emerging political economies appear to lack any moorings in a conception of how the interaction between state and economy in facilitating extraction might contribute to the well-being of concrete communities.Footnote 163
In other words, facilitating resource extraction by acting as sponsoring state does not simply equate to public ‘benefit’. The sponsoring state furthermore faces a conflict of interest here. If it seeks to maximize fiscal revenue from its role as sponsoring state, it has little incentive to support maximum financial redistribution via the ISA as well, because the higher the payments owed to the ISA, the less scope there is for sponsoring states to impose their own direct payment obligations on the contractor – risking a race to the bottom.Footnote 164
The second way in which commercial exploitation is argued to benefit humankind is by contributing to scientific knowledge of the deep sea, as contractors bring the resources required for deep sea research which exceed those typically available to scientific research institutes or developing states. Or as the ISA puts it: ‘by requiring contractors to undertake environmental studies before they can apply for exploitation contracts, and by setting standards for data collection, ISA enables contractors to contribute to the global knowledge base’.Footnote 165 The enhancement of scientific knowledge of the deep seabed is, or should be interpreted as, a benefit for humankind independent of exploitation. Indeed, UNCLOS asserts that marine scientific research in the Area shall be carried out for the benefit of humankind as a whole,Footnote 166 not solely for the purposes of facilitating exploitation. However, in the way the argument is presented, the two become conflated in the ‘necessity’ of attracting private finance to fund (often prohibitively) expensive deep sea research. One may presume that contractors are driven more by the prospect of generating profit than a philanthropic commitment to furthering deep sea science, hence any data or evidence that suggests that the environmental, distributive, and social ambitions of the regime are better served by non-exploitation is not particularly conducive to their business case. There have long been concerns about the independence, reliability, and verifiability of (environmental) data submitted by contractors. Although the ISA has worked to make improvements around the public availability of such data,Footnote 167 it is questionable how beneficial this enhanced transparency is when there are no opportunities for interested (third-party) stakeholders to constructively engage with it.Footnote 168 The ISA is proactive in developing joint projects with scientists, including collaborations between industry and science.Footnote 169 It is not clear how these relationships are established (often not via public procurement) and it remains unclear whether and in what way scientific inputs obtained therefrom feed into the negotiations for example.Footnote 170
Finally, the ISA runs a capacity-building programme with the overarching aim to enhance full participation of developing states in the work of the ISA and activities in the Area.Footnote 171 While this could certainly be of direct benefit to individuals, e.g., through the advancement of women in deep sea science, the ultimate aim of this work is still closely connected to the aim of exploitation, as it seeks to enable states to take on the role of sponsoring state.Footnote 172 Apart from the fact that it is questionable to what extent this role ultimately benefits the sponsoring state and its population as considered above, the enhanced capacity is to a not insignificant extent directly beneficial to the contractor. Shortly after the small island sponsoring states mentioned above had applied for exploration contracts, the European Union (EU) offered development assistance to Pacific Island states, including Nauru, to help them improve the governance and management of deep sea minerals and draft national legislation. As a result, NORI ‘not only [gained] access to areas reserved for exploration and exploitation by developing states; it also is the indirect beneficiary of development assistance by the EU aimed at enabling Nauru to meet its obligations as a sponsoring state’.Footnote 173 In deep sea exploration, that is one small step for Nauru, one giant leap for NORI – rather than humankind.
5. Conclusion
This article sought to move beyond the well-worn but unresolved, and possibly unresolvable, debate on how to find an acceptable trade-off between facilitating commercial deep seabed mining and adequately regulating the many risks involved. Instead, it showed that proceeding to the exploitation phase is a false necessity if one takes seriously the treaty obligation that activities in the Area are to be carried out for the benefit of humankind as a whole, and each component of the ISA’s mandate. The ISA is faced with an impossible task if its aim is to realize the contradiction in terms that is ‘sustainable seabed exploitation’. At the same time, its uniquely complex mandate and the tensions that remain within it are also where its potential lies and should be sought. This is why it is important to break through the dominant narrative of ‘necessity’ that perpetuates the power structures and interests served by value extraction from the global commons and justifies the costs thereof to humanity, while obscuring the true beneficiaries under vague notions of universality. The ideology of mutuality is still at play in the ideal of sustainable seabed mining for decarbonization and sustainable development.
Yet, this mutuality is becoming increasingly difficult to uphold as the contradictions inherent in the regime become stronger and ever more pronounced in light of present-day knowledge and conditions. The common heritage principle has proven to be able to accommodate ideological shifts and changing interests. The most drastic shift witnessed thus far was under the sway of market-based principles to create favourable conditions for private value extraction from the deep seabed. Perhaps another fundamental shift is imminent; this time under the increasing weight of the environmental and social imperatives of the regime – a shift that would be easier to reconcile with the common heritage principle’s underlying intergenerational values and trans-temporal rationale than the first one.Footnote 174 Perhaps the audacity of the trigger of the two-year rule has also triggered something in the global public consciousness of humanity as global ‘commoners’; perhaps it has dispelled some of the hydrothermal smoke and mirrors of social and ecological disconnectedness from the deep sea. At the very least, it has animated a plurality of stakeholders in our common heritage, and its plight, that may conveniently remain out of sight for most, is no longer out of mind.
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