Deep-Sea Mining, Marine Sciences

Deep Sea Mining and the Question of Liability – Jamaica

By Geasean Johnson

The conversation in Jamaica on deep sea mining recently started and is taking place in the public sphere, no thanks to the government, whose duty it is to communicate these large-scale environmental decisions. It is true that the discussion has been taking place in other parts of the world for years, and somehow embarrassingly, what could easily be the single most important environmental issue for this generation—second only to climate change—has been kept out of the public domain as decisions are being made by our elected officials. Rather late than never, we suppose.

Jamaica is the home of the International Seabed Authority, which manages the “Area.” The term “area” is rather a science fiction term used to refer to the parts of the ocean that are unclaimed or are not assigned as exclusive economic zones. The International Seabed Authority, an intergovernmental body of the United Nations, has an important role in regulating the development of mineral exploration and exploitation operations in the seas beyond national jurisdictions. The Authority operates as an autonomous international organization with its own Assembly, Council, and Secretariat based in Kingston, Jamaica.

So, who assumes the liability for any fallout from deep-sea mining? This blog post will hopefully further the questions that should get us all thinking critically about what we are about to get ourselves into if the ISA starts granting mining licenses.

In 2021, Jamaica became the second Caribbean country and the sixth small island developing state to sponsor a mining company to explore and exploit “The Area.”

The Cabinet of the Government of Jamaica has given approval for Jamaica to enter the emerging industry of Deep Seabed Mining (DSM) through its sponsorship of Blue Minerals Jamaica Limited (BMJ), a Jamaican registered company. This progressive and visionary step will see Jamaica join a select group of 20 countries including the UK, Germany, China, Korea, India, and Belgium in deep seabed mining activities [..] Blue Minerals Jamaica’s activities are focused on the collection of Polymetallic Nodules containing high concentrations of Nickel, Copper, Cobalt, and Manganese. The process of seeking approval for entry into the Deep Seabed Mining industry was a multi-Ministry/Agency effort piloted by the Ministry of Foreign Affairs and Foreign Trade, advised by the Attorney General’s Office and supported by the Minister without Portfolio in the Office of the Prime Minister Mike Henry.” [MFAT, 2019) 

Scientists are trying to establish a baseline to determine the possible scale of impact on neighboring companies exploring the area, its local and distant ecosystems, and life on land. Consequently, this move is an enormous burden placed on Jamaicans for a novel industry with massive environmental risks and rife with uncertainty. The big issue of liability forces us to ask questions such as, “What if something goes wrong?” Who will be blamed? How will they be held accountable, and what will the consequences be? Who will bear the cost of damages?

One of the major differences between terrestrial mining and DSM when it comes to environmental damages is that whatever is lost is finite and belongs to the host country, as opposed to seabed mining, where the area is classified as the “common heritage of mankind” and has the potential to greatly affect the livelihoods of multiple nations and peoples. Deep sea mining has never been done before, and scientists are concerned that the rapidly closing window to formulate regulations may neglect issues of environmental protection in the world’s largest inhabited zone.

Among the regulations that are to be decided on before the 2-year deadline in 2023 is liability. Sponsoring states like Jamaica are required to ensure compliance with the regulations of the International Seabed Authority. Sponsoring states may be held liable if they did not maintain strict national laws that would have prevented greater damage to the marine ecosystem than that which was expected. Is Jamaica ready to bear that kind of accountability? Jamaica is notorious for a culture of noncompliance with environmental rules with impunity. a situation worsened by the lack of enforcement of the permit and licensing systems in place. The laws that govern the protection of the environment are fragmented, as are the responsibilities of various inefficient and under-resourced agencies.

These are the challenges that currently exist as it relates to terrestrial ecosystem management, where one would imagine we would have a greater capacity to govern. The Seabed Mineral Act 2014 states that the sponsoring state has direct obligations to ensure and adopt appropriate rules and measures and also enforce these rules and measures at a certain level of vigilance. It is not unreasonable for Jamaicans to be so concerned about the capacity of the Jamaican state to fulfill its responsibility as a sponsor, given its patently poor track record with other mining companies. For example, it is believed that a bauxite processing plant in Jamaica is responsible for a decade’s worth of river pollution and fish kills. It was only recently that the most severe consequence was levied against the responsible company by the government.

There are other questions that are left unanswered by the ISA, such as the cost associated with financial compensation and the responsibilities a state has to ensure the private entity is in compliance to avoid being liable. The question of liability is one to explore. This is a massive undertaking with numerous risks that could devastate the image and economies of the sponsoring countries, which already have a lot to lose. Small island developing states may not have the capacity to stand up for themselves in this exploitative partnership in the event of an environmental catastrophe. This is why it is important for citizens of these countries to demand more answers based on due diligence and greater consultation before pressing along this path of uncertainty.

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