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A Deep Dive into Private Governance of Deep-Sea Mining

Posted by on Saturday, July 2, 2022 in Notes, Volume 24, Volume 24, Issue 3.

Andrew Johnson | 24 Vand. J. Ent. & Tech. L. 595 (2022)

Modern, information-driven economies need rare-earth metals for everything from laptop computers to cellular phones. Society will require more of these metals for the solar panels, wind turbines, and storage batteries necessary to convert electricity systems to renewable energy. The deep sea contains large amounts of high-quality, rare-earth metals that companies and nations are increasingly interested in mining. The International Seabed Authority (ISA) is authorized under the United Nations Convention on the Law of the Sea (UNCLOS) to permit and regulate deep-sea mining of the seafloor outside of national jurisdiction (the “Area”), and the ISA is currently developing regulations to issue the first contract allowing deep-sea mining. Deep-sea ecosystems are, however, understudied, and their functioning, diversity, sensitivity, and value are poorly understood. As a result, the initial ISA regulations—intended to protect deep-sea ecosystems—may not effectively address all environmental harms associated with mining in these environments. This Note proposes that private environmental governance mechanisms, like supply chain contracts and credit agreements, can fill regulatory gaps as they emerge or extend regulations into national waters if deep-sea mining commences. Private environmental governance only requires agreement between contracting parties as opposed to the approval of a large, potentially contentious, regulatory body like the ISA. Thus, private contractual requirements can quickly fill gaps in or extend the ISA regulatory regime as new information on the environmental impacts of deep-sea mining emerges. If corporations in the retail, technology, or automobile industry recognize the importance of sustainable rare-earth metal production and consumption, they can contract to either find alternative, recycled sources for their technology or minimize the impact of their operations on the deep sea.

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